Opinion
No. 107993.
2015-01-16
Michael L. GAINES, Appellant, v. STATE of Kansas, Appellee.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 30, 2013. Appeal from Sedgwick District Court; Anthony J. Powell, Judge.Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, were on the brief for appellant.Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 30, 2013. Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, were on the brief for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
The opinion of the court was delivered by ROSEN, J.:
This court has examined the record on appeal, the briefs of the parties, and the opinion of the Court of Appeals. Gaines v. State, No. 107,993, 2013 WL 4729631 (Kan.App.2013) (unpublished opinion). Gaines raised numerous allegations of trial error and ineffective assistance of counsel, both in the district court and on appeal. We conclude that, with one exception, the analysis by the Court of Appeals is correct and that the Court of Appeals reached the correct conclusion.
Gaines complained in his K.S.A. 60–1507 motion that at least a dozen witnesses observed the altercation between himself and the detention deputies, but his trial counsel failed to subpoena those witnesses. The Court of Appeals correctly noted that Gaines did not identify or suggest the nature of the testimony that those witnesses might have provided. The Court of Appeals went on to hold, however, that it is not ineffective assistance of counsel to fail to call witnesses whose testimony would have been cumulative. This conclusion is overly broad and does not take into account the circumstances of specific cases or the weight that the testimony of various witnesses might carry with a factfinder.
The Court of Appeals nevertheless reached the proper conclusion. Gaines failed to proffer any suggestion of prejudice resulting from his counsel's election to subpoena the two witnesses who testified on his behalf. We therefore affirm the opinion of the Court of Appeals and affirm the decision of the district court.