Opinion
No. 108,714.
2013-11-22
Raymond FULLER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Kristle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Kristle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, for appellee.
Before GREEN, P.J., PIERRON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Pursuant to a motion filed under K.S.A. 60–1507, Raymond Fuller raises multiple allegations of ineffective assistance of trial counsel following his convictions for rape, aggravated sexual battery and aggravated burglary. His convictions and sentences were affirmed on appeal. State v. Fuller, No. 100,026, 2009 WL 4639506 (Kan.App.2009) (unpublished opinion), rev. denied 290 P .3d 1098 (2010). While the district court summarily denied a majority of the claims after a preliminary, nonevidentiary hearing, the remaining claims were argued at a full evidentiary hearing, but ultimately denied by the district court.
On appeal, Fuller argues he received ineffective assistance of counsel because (1) the questions his attorney asked him during direct examination, (2) he was denied conflict-free representation at the posttrial motions and sentencing, and (3) his attorney failed to present a character witness impeaching the victim and gave up the only opportunity to proffer the testimony of the proposed witness. We affirm.
This case was clearly a credibility battle between Fuller and the victim, C.K. Fuller does not challenge the evidence but argues multiple actions of his trial counsel, Quentin Pittman, constitute ineffective assistance of counsel. As set forth in the direct appeal, the following facts were established:
“ Factual and procedural background
“Fuller and the victim, C.K., were neighbors who had sporadic contact prior to the incident which resulted in charges against Fuller. However, the day prior to the incident, C.K. helped Fuller jump-start his vehicle. Fuller and the victim both testified at trial, and we have summarized below the sharply contrasting details of their testimony.” Victim's testimony
“C.K. testified that at the time Fuller rang her doorbell, she was in her bathrobe and talking on the phone with her friend Brenon Odle. Her two children, ages 3 years and 22 months, were at home with her. C.K. told Odle to call her back in a few minutes and then stuck her head outside the door and told Fuller to ‘give [her] a minute.’ C.K. went to her bedroom to put some clothes on. Without C.K.'s permission, Fuller entered the house and walked into her bedroom doorway and told C.K., ‘I like what I'm looking at.’ Startled and caught off-guard, C.K. asked Fuller to give her ‘just a minute’ and directed him to wait in the living room. Fuller complied.
“C.K. finished dressing and went to the living room, where she seated herself furthest from Fuller on the couch. C.K.'s children were also with them in the living room. Fuller told C.K. that he had some photographs on his cell phone that he wanted to show her. C.K. leaned across the couch and saw that the photographs were of Fuller's penis. As she leaned over, Fuller grabbed C.K.'s hair and pulled her head towards his lap. He then pulled C.K.'s shirt down, exposing her chest, and grabbed her breast. After removing his hand from her chest, Fuller put his hand inside C.K.'s shorts and placed his fingers inside her vagina.
“The encounter ended when the phone rang and C.K. answered it. Although it was Odle calling her back, C.K. told Fuller that her husband was on the phone, and that her husband knew Fuller was there and Fuller should ‘get the hell out of here.’ Fuller left, but only after telling C.K. that he would kill her if she told anyone what happened. C.K. then told Odle what had happened.” Fuller's testimony
“Fuller testified that after he rang the doorbell, C.K. smiled and invited him in, and the two made ‘small talk’ as they walked to C.K.'s bedroom. Once in the bedroom, C.K. dropped her bathrobe and exposed herself to Fuller. Fuller retreated to the couch because the presence of C.K.'s children in the bedroom made him feel ‘weird.’ C.K. joined him on the couch and after they talked briefly, C.K. exposed her vagina to him. Fuller admitted he placed his finger in C.K.'s vagina, but testified that C.K. smiled after he did so. Fuller then began performing oral sex on C.K. but stopped because the children were nearby. C.K. told Fuller she liked having her hair pulled, so Fuller playfully pulled her hair. Fuller agreed that the encounter ended when C.K.'s phone rang.”
Fuller was convicted of rape, aggravated sexual battery, and aggravated burglary, pursuant to K.S.A. 21–3502(a)(l)(A)(c); K.S.A. 21–3518(a)(1); and K.S.A. 21–3716. He was sentenced to 620 months in prison. In his direct appeal, Fuller raised many of the same issues now alleged on appeal. He also challenged the sufficiency of the evidence for aggravated burglary and claimed his due process rights were violated when the trial court increased his sentence based on his prior criminal history. The Fuller court declined the opportunity to address Fuller's ineffective assistance of counsel claims at that time because he raised the issues for the first time on appeal. The court also stated that Fuller's allegations, on their face, did not rise to a level the court was willing to say would be a complete failure of counsel as determined in State v. Carter, 270 Kan. 426, 435–37, 14 P.3d 1138 (2000) (discussing the presumed prejudice exception found in United States v. Cronic, 466 U.S. 748, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). However, there is language in the court's decision that Fuller cites:
“Because Fuller's allegations of ineffective assistance of counsel were not asserted or developed at trial, we conclude the record on appeal is not sufficiently developed to permit consideration of this issue for the first time on appeal.
“In so holding, we note that some of Fuller's allegations, viewed from a cold record, are troubling, particularly his allegations regarding the tone of counsel's direct examination of Fuller and his counsel's failure to advocate for Fuller at the hearing on the posttrial motions. Our ruling today does not limit Fuller's ability to challenge counsel's effectiveness through a K.S.A. 60–1507 motion, applying a traditional Strickland analysis.” Fuller, 2009 WL 4639506, at *5.
See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Obviously heeding the advice of the Fuller court, on May 2, 2011, Fuller filed a K.S.A. 60–1507 motion raising a laundry list of ineffective assistance of counsel allegations. They can be summarized that Pittman was ineffective: (1) during the direct examination of Fuller's testimony; (2) by failing to object to a jury instruction and failing to request a lesser-included offense instruction; (3) for literally arguing against the motion for new trial and also against Fuller's pro se motion for new trial; (4) for failing to object to the prosecutor's cross-examination; (5) for refusing to strike two jurors; (6) for failing to “discredit” the victim; and (7) for failing to subpoena Shelly Swartz to testify about the victim's credibility. The district court held a preliminary, nonevidentiary hearing on some of the claims, and a full evidentiary hearing on others.
After the nonevidentiary hearing, the district court denied four of Fuller's claims. First, the district court rejected Fuller's claim that Pittman was ineffective for failing to object to the use of the word “until” in the burden of proof jury instruction and for not requesting a lesser included instruction for sexual battery. Second, the court found no reversible err in Pittman's failure to object to the State's questioning of whether Fuller was using anything that could have clouded his memory that evening. Third, Pittman specifically confronted C.K. with her conflicting stories. Last, the court found there was no ineffective assistance of counsel in Pittman's failure to subpoena Swartz to testify that C.K. was a flirt and a tease. The court held the evidence was improper and would only be admissible if C.K. made any prior or false allegations and Fuller had not suggested any evidence that Swartz had personal knowledge of C.K.'s reputation in her community.
After a full evidentiary hearing, the district court denied Fuller's remaining claims of ineffective assistance of counsel. The district court held Pittman's aggressive direct examination of Fuller was a strategic decision by Pittman to soften the impact of the prosecutor's cross-examination and to elicit passionate denials from Fuller. Next, the court denied Fuller's claims concerning Pittman's impartiality or conflict during the motions for new trial. The court stated that Pittman's performance was reasonable and that he never gave up his role as Fuller's advocate or that Fuller suffered any prejudice because there was no factual or legal merit to Fuller's claims. Last, the court held the alleged questionable juror was merely an acquaintance of one of the detectives on the case, the juror stated he could remain impartial, there was no basis to strike the juror for cause, and Fuller had participated in the jury selection with Pittman.
Fuller appeals and raises a select few issues on appeal.
The standards for reviewing claims of ineffective assistance of counsel are well established. The right to effective assistance of counsel arises from the Sixth Amendment to the United States Constitution, which guarantees in “all criminal prosecutions” that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” See Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985) (adopting the standards established in Strickland, 466 U.S. at 687.
To support a claim of ineffective assistance of counsel based on counsel's performance, a defendant must demonstrate that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. The benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012).
There are two steps in the ineffective assistance of counsel analysis. Step one requires a defendant to show that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel's performance must be highly deferential. Every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. 294 Kan. at 838.
Step two requires the defendant to establish prejudice by showing there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. 294 Kan. at 838.
When the district court denies a K.S.A. 60–1507 motion after conducting an evidentiary hearing on the motion, as was done in Fuller's case, this court reviews whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the court's conclusions of law. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007). In doing so, we give deference to the district court's findings of fact, accepting as true the evidence and any inferences that support or tend to support the court's findings. Ultimately, the district court's conclusions of law and its decision to grant or deny a 60–1507 motion are reviewed using a de novo standard. 285 Kan. at 355.
Direct Examination Questioning
First, Fuller argues Pittman blind-sided him on direct examination by asking pointed and direct questions of whether Fuller showed C.K. pictures of his penis, attacked C.K., raped her, forcefully pulled her hair, and whether he was a rapist and lying about the whole thing. Fuller responded, “No,” to each of the questions. However, Fuller argues Pittman's questioning shattered his credibility before the jury and it felt like he was being questioned by two prosecutors instead of having an attorney on his side. Fuller states Pittman gave him a five-page list of questions he was going to ask at trial and there is no indication in those questions that Pittman would ask the aggressive and implicating questions that he did.
The district court rejected Fuller's claim by finding Pittman's actions constituted reasonable trial strategy. The court stated:
“As to trial counsel's direct examination of movant, this court finds that trial counsel's performance was reasonable. Trial counsel is an experienced criminal trial lawyer and clearly made a strategic decision to use cross-examination techniques during direct examination of the movant. Moreover, as explained by trial counsel, the technique worked (as demonstrated by trial counsel's continued use of it and movant's ability to answer the questions). The technique softened the impact of the prosecutor's cross-examination of movant and elicited denials, passionate denials, from movant.”
In discussing trial strategy, our Supreme Court has explained that strategic decisions made by trial counsel based on a thorough investigation are virtually unchallengeable:
“Trial counsel has the responsibility for making tactical and strategic decisions including the determination of which witnesses will testify. Even though experienced attorneys might disagree on the best tactics or strategy, deliberate decisions based on strategy may not establish ineffective assistance of counsel. Strategic choices based on a thorough investigation of the law and facts are virtually unchallengeable.” Flynn v. State, 281 Kan. 1154, Syl. ¶ 5, 136 P.3d 909(2006).
We have reviewed the complete trial. Fuller's defense from the beginning was consent. During opening statement, Pittman said, “The evidence will show that on June 5th, 2007 there was a sexual encounter between [C.K.] and Raymond. Raymond will tell you that that encounter was consensual. [C.K.] will say it was not.” It cannot be denied that Pittman took a very aggressive attitude with Fuller on the stand. Pittman asked Fuller following questions: “You are going over there to get laid, right?”; “You were going to have sex with her one way or another, correct?”; “That's when you grab her?”; “That's when you say I want to fuck you?”; “That's the picture, the four pictures of your penis, right?”; “Then you attack her?”; “That's when you grab her and attack her?”; “You started to show her pictures of your penis on the phone?”; “That's when you attack her?”; “That's when you attack her?”; “That's when you attack her?”; “That's when you jam your finger into her vagina?”; “That's when you ripped off her shorts?”; “That's when you attack her?”; “You then attack her, pulled her hair and put your finger in her vaginal area, right?”; “That's when you said you tell anyone and I will tucking kill you?”; “Because you didn't exactly tell the same story throughout that you eventually got to, you are a liar, right?;” “I mean, you raped her?”; and “That's because you are a liar and a rapist, right?”
At the motion on the 60–1507 motion, Pittman explained his questioning during Fuller's direct examination was trial strategy to soften the blow of the questions the jury was dying to hear Fuller answer. Pittman testified that by the time Fuller testified, C.K. and the police detectives had all testified. Pittman stated he phrased his questions using the same language as C.K.'s testimony and the detectives' testimony. During C.K.'s direct examination, she testified that Fuller had pulled her hair, pulled her shirt down, grabbed her breast, and put his fingers inside her vagina. She did not want him to do this. She said Fuller told her, “[I]f you ever, ever say anything to anyone, I'll fucking kill you.” Officer Von Hardin testified that C.K. said Fuller had grabbed her hair and pulled her down to his private area. C.K. told Officer Bratt that Fuller had roughly stuck his finger inside her vagina.
Pittman stated he did not go through the exact questions he was going to ask Fuller, but Fuller had heard the prior testimony and Fuller provided direct and forthright answers to Pittman's questions. Pittman stated he and Fuller discussed the impact and impression they needed to make to the jury and Fuller would need to refute the difficult questions in the case, namely whether he raped C.K. He stated C.K. came across as blase and unemotional about the event and did not exhibit the typical demeanor of a rape victim on the stand. Pittman testified Fuller's testimony was indignant, well-spoken, emotional, and a complete denial of nonconsensual acts.
Fuller testified Pittman never told him he was going to aggressively question him on direct examination. He thought the only questions he would have to answer were the ones on the sheet Pittman had provided him. Pittman testified that at the time of Fuller's direct examination, the trial strategy appeared to be working. Pittman said Fuller was not tripped up on the questioning, he remained confident and clear that the incident was consensual. Pittman said it also appeared that Fuller was connecting with the jury by his testimony, which was to their advantage.
Here, because both C.K. and Fuller testified, the jurors could fully assess their credibility as they recounted their respective versions of the material events. The judicial process treats an appearance on the witness stand, with the taking of an oath and the rigor of cross-examination, as perhaps the most discerning crucible for separating honesty and accuracy from mendacity and misstatement. See State v. Bellinger, 47 Kan.App.2d 776, 787, 278 P.3d 975 (2012) (Atcheson, J., dissenting), rev. denied 298 Kan. –––– (October 1, 2013). The jurors presumably relied on that assessment in reaching their verdicts.
Cross-examination may be permitted into matters which were subject of direct examination. Where general subject matter has been opened up on direct, cross-examination may go to any phase of the subject matter and is not restricted to identical details developed or specific facts gone into on direct examination. Questions asked on cross-examination must be responsive to testimony given on direct examination, or material and relevant thereto. State v. Hobson, 234 Kan. 133, Syl. ¶ 8, 671 P.2d 1365 (1983). Fuller's decision to take the stand and paint a picture of consensual sexual activity would have clearly opened him up to the same questioning by the prosecutor on cross-examination. We do not find it unreasonable strategy to try and soften the effect of Fuller's testimony while in the control of his own attorney, who testified he would have immediately stopped if he felt the aggressive questioning was not working and caused Fuller to become upset or flustered. The prosecutor would not have stopped.
We are not convinced Fuller can meet the first step in the ineffective assistance analysis. Pittman's questioning on direct examination did not fall below an objective standard of reasonableness, considering all the circumstances and the reasonable trial strategy. Just because Pittman's trial strategy was unsuccessful does not allow it to rise to the level of ineffective assistance of counsel. Judicial scrutiny of counsel's performance must be highly deferential. Every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Edgar, 294 Kan. at 838. That was the case here.
Conflict-free Counsel
The next point of ineffectiveness involves Pittman's representation of Fuller at the motions for new trial. Fuller argues he was denied his right to conflict-free representation at the posttrial motion and sentencing hearings under the Sixth and Fourteenth Amendments to the United States Constitution.
Both Fuller and Pittman filed motions for a new trial. Fuller's motion argued that his trial had not been fair and impartial because of improper jurors being allowed on the jury and one juror fell asleep during the trial. Pittman's motion argued there was insufficient evidence to prove Fuller was guilty beyond a reasonable doubt. Fuller complains about Pittman's comments at the hearing on both motions.
When Pittman addressed his motion, he told the trial court that he thought the trial was “extremely clean,” that nothing stuck out in his mind, and the trial seemed to go in their favor. In discussing Fuller's motion for a new trial, Pittman stated it was best if Fuller argued his own motion. Fuller complained about the composition of the jury, the biases of the jurors, and that one juror had fallen asleep. Fuller also alleged violations of the order in limine, insufficient evidence of his guilt, and that evidence of phone records was not presented to the jury despite his requests to Pittman to do so. The trial court asked Pittman for a response. He explained he did not believe the phone records were significant and could possibly have been damaging to Fuller's defense. Pittman also stated that choosing which jurors to strike was clearly a strategic decision and a very difficult one because of so many potential jurors. Pittman thought they had a good jury. Pittman did not believe the juror had fallen asleep and there were no violations of the order in liminie that he could remember.
The district court allowed Fuller to respond to Pittman's statements. He responded that he did not think that Pittman had represented him to the best of Pittman's ability. In denying the motions for new trial, the court found the respective jurors had stated they could be fair and impartial, when to use peremptory strikes was a matter of trial strategy, the alleged sleepy juror had never fallen asleep, there were no violations of the order in limine, and Pittman was not ineffective for not obtaining C.K.'s phone records.
Fuller filed a motion to reconsider the denial of his motion for new trial. Therein he raised the same issues and clarified that he claimed Pittman had not represented him to the best of Pittman's abilities. The district court again denied the motion for a new trial. The court stated that none of the evidence of Fuller's drug use had come into evidence and there was no violation of the order in liminie. The court also stated the phone records did not benefit Fuller's theory of defense because Odle had already testified that when C.K. called him the second time, presumably right after the sexual assault, she seemed calm and he could not hear any commotion in the background.
Initially, the State argues Fuller failed to raise this conflict-free argument in his motion and argues it is not properly raised on appeal. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). Fuller argues this issue was not expressly raised before the trial court but can be extrapolated from counsel's argument to the district court that the motion for new hearing was essentially a 60–1507 motion and Pittman had abandoned his role as advocate by defending his own actions and by arguing against the motion for new trial. Fuller argues that even if the issue was not raised below, we can examine the issue because it involves only a question of law on a fully developed record and it is necessary to prevent a denial of Fuller's fundamental rights. See Trotter v. State, 288 Kan. 112, 125, 200 P.3d 1236 (2009).
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. Wiltons v. State, 286 Kan. 971, 981, 190 P.3d 957 (2008). Where a district court knows or reasonably should have known about a potential conflict of interest between the defendant and his or her counsel, the court has a duty to initiate an inquiry to insure that the defendant's Sixth Amendment right to counsel is not violated. State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 (2007); State v. Toney, 39 Kan.App.2d 1036, 1041, 187 P.3d 138 (2008).
A district court abuses its discretion when it fails to make the appropriate inquiries after becoming aware of a possible conflict of interest between an attorney and his or her client. See State v. Vann, 280 Kan. 782, 789–92, 127 P.3d 307 (2006). However, a district court's failure to inquire about a potential conflict does not require automatic reversal. Rather, a defendant is entitled to reversal only if he or she can establish that the conflict adversely affected his or her counsel's performance. Carter, 284 Kan. at 321 (citing Mickens v. Taylor, 535 U.S. 162, 172–73, 122 S.Ct. 1237, 152 L.Ed.2d 291,reh. denied535 U.S. 1074 [2002] );Toney, 39 Kan.App.2d at 1041–42.
Fuller argues Pittman had divided loyalties at the motion for new trial. As Fuller's trial counsel, Pittman was obligated to advocate and prove his own professional ineffectiveness by addressing the claims for a new trial. We do not find that Pittman gave up his role as Fuller's advocate at the motion for new trial. Pittman argued his motion for a new trial based on the sufficiency of the evidence. He indicated it was a “clean trial,” but that does not negate the fact that he still believed the evidence was insufficient for a conviction.
Fuller argues he is not required to demonstrate prejudice under the second prong of the Strickland test, because “a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.” Toney, 39 Kan.App.2d 1043–44; see also Edgar, 294 Kan. at 839–40 (if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then prejudice is presumed under United States v. Cronic, 466 U.S. 648, 662, 104 S.Ct. 2039, 80 L.Ed.2d 657 [1984] ). Fuller argues Pittman completely gave up his role as advocate and failed to subject the prosecution to meaningful adversarial testing by conceding the motions for new trial.
As the State points out, the Fuller court already addressed Fuller's Cronic claims in the direct appeal and denied him relief:
“Nor do Fuller's allegations, on their face, permit us to determine that a complete failure of counsel occurred here, as did the record in Carter. As the State points out, even assuming the truth of Fuller's allegations regarding his counsel's ineffectiveness, Fuller does not dispute that his counsel advocated on his behalf throughout much of the proceeding. For instance, defense counsel filed numerous pretrial motions, made an opening statement in which he advocated Fuller's consent defense, cross-examined all of the State's witnesses, directly examined Fuller, and asserted numerous posttrial motions. See Untied States v. Theodore, 468 F.3d at [52, 57 (1st Cir.2006) ] (finding no Cronic violation when attorney cross-examined government witnesses, suggested some defense themes, and introduced a few exhibits).” 2009 WL 4639506, at *4.
Fuller also argues Pittman's questioning of him at trial created a conflict of interest when he turned the direct examination into an aggressive cross-examination and shattered his credibility before the jury. We have previously addressed Pittman's techniques for examining Fuller on direct and find it was a reasonable trial strategy.
The district court held:
“As to the motion for new trial, this court finds that trial counsel's performance was reasonable. Trial counsel's candor at the motion hearing was important, because trial counsel truthfully explained what had occurred and why he did what he did. This court finds that trial counsel did not give up his role as movant's advocate and, therefore, trial counsel's performance was reasonable. In any event, this court also finds that movant cannot show he suffered prejudice as a result of movant's performance at the motion hearing because there is no factual or legal merit to the issues raised by movant at that hearing.”
We do not find Fuller has established a claim of ineffective assistance of counsel based on Pittman's actions at the motion for new trial. Fuller has failed to demonstrate the requisite prejudice for his ineffective assistance of counsel claim.
Failure to Call Witness to Impeach the Victim's Credibility
Last, Fuller argues Pittman was ineffective for failing to subpoena Swartz to testify that C.K. was a flirt and a tease and Pittman also gave up the opportunity to proffer Swartz' testimony.
The State argues there is a jurisdictional question here. The district court considered and denied this issue at the nonevidentiary hearing on September 30, 2011. The journal entry for this hearing was filed November 22, 2011. The notice of appeal was filed on June 14, 2012, seemingly because the evidentiary hearing on the rest of the issues was not heard until May 2012. The journal entry for the issues heard at the evidentiary hearing was filed on June 8, 2012. Fuller's notice of appeal states that he is appealing “from the judgment entered May 17, 2012, and filed with the Court on June 08, 2012, denying his [motion] for relief under K.S.A. 60–1507.” Arguably, Fuller's notice of appeal does not cover the decision/journal entry filed by the district court for the non-evidentiary hearing issues on November 22, 2011.
K.S.A.2012 Supp. 60–2103(b) provides: “The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.” (Emphasis added.) See Supreme Court Rule 2.02 (2012 Kan. Ct. R. Annot. 10.). It is fundamental that an appellate court's jurisdiction is generally limited to the rulings identified in the notice of appeal. State v.. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004). This is not a case where the notice of appeal has a catch-all phrase of “all adverse rulings including, but not limited to.”
However, appellate courts should not be overly technical in their construction of notices of appeal. In State v. Griffen, 241 Kan. 68, 69–70, 734 P.2d 1089 (1987), our Supreme Court stated:
“This Court is the final arbiter in determining whether statutory jurisdictional requirements have been met in any case filed in the courts of Kansas. We have often recognized that jurisdiction in any action on appeal is dependent upon strict compliance with the statutes. However, when there is a valid controversy whether the statutory requirements have been complied with, we are required to construe those statutes liberally to assure justice in every proceeding.” [Citations omitted.].
In State v. Boyd, 268 Kan. 600, 602, 999 P.2d 265 (2000), the notice of appeal stated the defendant was appealing “from his conviction.” The Supreme Court ruled that the term “conviction” was broad enough to confer appellate jurisdiction to hear issues other than just the sufficiency of the evidence, including claimed evidentiary and procedural errors. 268 Kan. at 607–08.
In the present case, Fuller's notice of appeal is clear. There is nothing indicating a desire or intent to appeal any judgment other than the one issued by the district court on June 8, 2012. This issue of a trial counsel's failure to call a credibility witness was not decided on that date. A liberal interpretation of this notice of appeal would require that it be substantively rewritten. And this court has stated its unwillingness to “adjudicate out of existence the statutory mandate that a notice of appeal ‘shall designate’ the judgment appealed from.” Gates v. Goodyear, 37 Kan.App.2d 623, 629, 155 P.3d 1196,rev. denied 284 Kan. 945 (2007). This court recently concluded that prejudice does not come into play when there is no controversy regarding the meaning of the notice of appeal. See State v. Bailey, No. 100,296, 2009 WL 1393859, at *5–6 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1280 (2009); State v. Washington, No. 92,496, 2005 WL 1561430, at *4–5 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 991 (2005).
Prejudice or not, Fuller's notice of appeal does not vest this court with jurisdiction to consider this claimed error of ineffective assistance of counsel. Accordingly, his appeal on that issue should be dismissed. However, because there could be review, we will address the issue.
Fuller argues the district court's ruling at the evidentiary hearing differs from the rationale in the journal entry. Fuller argues the court erroneously determined that Swartz' testimony was not admissible under the rape shield statute. Fuller states the rape shield statute is inapplicable because he was not trying to introduce evidence of C.K.'s prior sexual conduct. Rather, the evidence was being introduced to attack C.K.'s credibility and character and to rebut the prosecution's attempt to discredit him on cross-examination.
Fuller also argues the district court's finding that Pittman failed to proffer or provide evidence regarding Swartz' personal knowledge about C.K.'s character and reputation is refuted by the record. The evidence clearly indicates that C.K. worked with Fuller's fiancee's aunt.
This issue was decided by the district court at a nonevidentiary hearing. Because the court denied this issue in Fuller's 60–1507 motion based solely on legal arguments and a review of the case files and records at a nonevidentiary hearing, we are in as good a position as the district court was to review the matter. Accordingly, we review the matter independently, without any required deference to the district court. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
Initially, we find the State raises no argument that Swartz' testimony was inadmissible under the rape shield statute. See K.S.A. 21–3525(b) (evidence of the complaining witnesses' previous sexual conduct with any person including the defendant shall not be admissible). We do not find the rape shield statute applicable here.
The State also argues this issue again was the result of trial strategy and we should not second guess Pittman's decision to not present Swartz' testimony. The technical and professional decisions of defending a criminal case, which require trained professional skill and judgment, must rest with the lawyer. Winter v. State, 210 Kan. 597 Syl. ¶¶ 1, 2, 502 P.2d 733 (1972). The decisions on which witnesses to call and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. State v. Ward, 227 Kan. 663 Syl. ¶ 1, 608 P.2d 1351 (1980). The State argues Fuller cannot succeed on a claim of ineffective assistance of counsel by second-guessing his defense counsel on which witnesses should be called to testify.
The threshold question on the admissibility of all evidence is relevancy. See K.S.A. 60–407(f); State v. Reid, 286 Kan. 494, 507–09, 186 P.3d 713 (2008). K.S.A. 60–401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. 286 Kan. at 509.K.S.A. 60–446 provides:
“When a person's character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person's conduct, subject, however, to the limitations of K.S.A. 60–447 and 60–448.”
The State argues the defense put C.K.'s character at issue and should not be able to benefit opening the door to that evidence. We agree.
Detective Bratt testified on cross-examination by Pittman that Fuller had told him he thought his fiancée was jealous of C.K. because C.K. was “too flirty?” Then Fuller testified as to all the flirtatious conduct by C.K. and how the entire event was consensual. Fuller's motion stated Swartz would have testified that C.K. was a flirt and a tease and she had openly pursued married men at her place of work to the point of other wives having heated arguments and confrontations with her.
Fuller states that when given an opportunity to make a proffer regarding Swartz' testimony, Pittman stated he would wait until the witness was available for the State. However, Swartz was never endorsed by the State. Fuller argues Pittman's decision to wait was nonsense because she was never going to be a State's witness and never subpoenaed by trial counsel. Fuller argues an evidentiary hearing is needed to determine why Pittman did not pursue Swartz' testimony.
Even if Pittman erred by not proffering Swartz' testimony and not having her as a defense witness at trial, we find the error was harmless error. Under the harmless error standards of K.S.A. 60–261, K.S.A. 60–2105, and the constitutional harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967), the test is whether the error affected substantial rights; in other words, the question is whether the error affected the outcome of the trial. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). The district court concluded in this case:
“In any event, even assuming that trial counsel's performance was deficient for failing to have Swartz testify, movant has not satisfied his burden to show that he was prejudiced by trial counsel's failure to present the alleged testimony. In fact, movant testified that the victim flirted with him and that the victim teased him.... Movant has not produced any evidence, or suggestion, that Swartz' proposed testimony would have been any different than his own.”
Fuller argues he was prejudiced by the lack of Swartz' testimony because additional evidence that C.K. was a flirt and a tease would have supported his defense that their contact was purely consensual and boosted his credibility with the jury. We find that Fuller was allowed to present evidence through his testimony and that of Detective Bratt that C.K. was a flirt and a tease. It appears Fuller is arguing provocation in addition to consent—C.K. testified she was not wearing any clothes under robe, C.K. said Fuller told her she had provoked him because she was “standing there looking all hot, sexy, or something.” However, C.K.'s flirtatious nature would not assist the jury in determining whether Fuller committed the acts of rape, aggravated sexual battery, and aggravated burglary.
The decision to not have Swartz testify was clearly a tactical decision and even if erroneous would not have changed the outcome of the trial. We do not find Pittman's representation fell below an objective standard of reasonableness.
Affirmed.