Opinion
No. 107,028.
2012-07-27
Louis G. GALLOWAY, Appellant, v. STATE of Kansas, Appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge. Michael Jilka, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge.
Michael Jilka, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Louis G. Galloway appeals the district court's denial of his K.S.A. 60–1507 motion. We affirm.
Facts
In February 2007, a jury convicted Galloway of one count of aggravated burglary and one count of aggravated battery-great bodily harm. The district court sentenced Galloway to 130 months' imprisonment on the aggravated burglary charge and 12 months' imprisonment on the aggravated battery charge. Pursuant to a plea agreement, the State dismissed other charges against Galloway and agreed to recommend the two sentences run consecutively. The district court adopted the recommendations. Galloway appealed his convictions, and a panel of this court affirmed his convictions. State v. Galloway, No. 98,701, 2008 WL 4570648 (Kan.App.2008) (unpublished opinion), rev. denied 288 Kan. 834 (2009).
Galloway filed a timely K.S.A. 60–1507 motion alleging that his trial counsel was ineffective for failing to request a unanimity instruction, failing to obtain admission of a photograph into evidence, not calling any defense witnesses, not adequately confronting the State's witnesses, and failing to object to the State's evidence. In an amendment to his 60–1507 motion, Galloway alleged several other instances of ineffective assistance of trial counsel.
After an evidentiary hearing, the district court determined that Galloway's counsel was not ineffective and denied the motion. Galloway timely appealed.
Appeal
When a district court holds an evidentiary hearing on a K.S.A. 60–1507 motion, an appellate court applies a findings of fact and conclusions of law standard of review. An appellate court must determine whether the district court's factual findings are supported by substantial competent evidence and whether those factual findings are sufficient to support the district court's conclusions of law. However, an appellate court applies a de novo standard in reviewing the district court's conclusions of law and its decision to grant or deny a 60–1507 motion. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007).
In his appellate brief, Galloway does not identify whether he is challenging the district court's factual findings, legal conclusions, or both. Instead, Galloway's brief contains broad, sweeping statements and conclusory arguments that Galloway's counsel was ineffective because he did not follow the course of conduct outlined by Galloway. Galloway virtually ignores the district court's factual findings in denying his 60–1507 motion. Thus, it appears that Galloway's arguments primarily focus on challenging the district court's legal conclusions; however, our analysis considers the district court's factual findings as well as its conclusions of law.
To prevail on a 60–1507 motion alleging ineffective assistance of counsel, a petitioner must present sufficient evidence to satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must prove (1) that trial counsel committed errors so serious that the performance fell below the level of representation guaranteed by the Sixth Amendment to the United States Constitution and (2) that counsel's errors were so serious that they deprived the petitioner of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). In applying this test, the Strickland Court noted that a reviewing court should be mindful of the fact that “counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case” and that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.
Galloway's appellate brief lists only three instances where his trial counsel was ineffective: (1) failing to request a unanimity instruction; (2) failing to seek the admission of evidence that bolstered Galloway's theory of the case; and (3) failing to investigate the case and search for potential defense witnesses.
Unanimity Instruction
Galloway contends that during his trial, the State's evidence established that Galloway entered Miller's apartment on two separate occasions on the date of the altercation. Galloway contends that this presented a multiple acts issue because either entry into Miller's apartment could have been unauthorized. Galloway further contends that his trial counsel was ineffective because his counsel did not request an instruction that would force the State to elect which entry it was relying upon to support the aggravated burglary charge. Galloway asserts that he was prejudiced because he was deprived of a unanimous verdict.
A multiple acts issue exists when the State presents evidence of several acts, and any one of those acts could constitute the crime charged. In a multiple acts case, a jury must be unanimous as to which act or incident constitutes the crime charged. To ensure jury unanimity, the State must elect the specific act or incident it is relying on to support the crime charged, or the court must instruct the jury that all of the jurors must agree that the same underlying criminal act or incident has been proven beyond a reasonable doubt. State v. Bailey, 292 Kan. 449, 458, 255 P.3d 19 (2011).
During trial, Galloway testified that Miller allowed Galloway to enter Miller's apartment, and he only entered Miller's apartment one time. However, Miller testified that Galloway entered his apartment two times in approximately a 15 minute time span. Miller explained that he invited Galloway into his apartment the first time, but he did not invite Galloway in the second time.
In its order denying Galloway's 60–1507 motion, the district court stated: “This issue is easily disposed of because both Miller and Galloway testified that Miller gave Galloway permission to enter the apartment the first time. Thus, the only facts presented at trial of an unauthorized entry involved the second entry when the door was broken.” The district court's factual findings are supported by substantial competent evidence, and those factual findings are sufficient to support the district court's conclusion that this was not a multiple acts case.
Galloway also contends that there was a multiple acts issue with the aggravated battery charge because the evidence established that Galloway and Miller engaged in several physical altercations. Both Galloway and Miller testified that they fought inside Galloway's apartment and, several minutes later, outside of Galloway's apartment. The evidence establishes that this was one continuous physical altercation and not a series of separate physical altercations. The altercation in Miller's apartment and the altercation outside of that apartment were separated in time by no more than a few minutes, and they occurred in the same general location. Thus, the evidence established that the fight outside of Miller's apartment was a continuation of the fight that occurred a few minutes earlier inside. See State v. Schoonover, 281 Kan. 453, 507, 133 P.3d 48 (2006).
Galloway has failed to demonstrate that his case was a multiple acts case. Therefore, his trial counsel was not ineffective by failing to request a unanimity instruction or by failing to force the State to elect which acts it relied upon to support the charges. Accordingly, we affirm the district court's ruling.
Admission of Photographic Evidence
Galloway contends that his trial counsel was ineffective when counsel failed to obtain admission into evidence a photograph purportedly showing Miller wearing steel-toed boots. Galloway argues that this photograph would have supported his theory of self-defense, and by not using the photograph, it deprived him of the opportunity to more forcefully present his self-defense claim. However, this argument is disingenuous.
During trial, Galloway's attorney apparently tried to have the photograph admitted but was unable to do so because the witness could not identify Miller as the individual in the photograph. Galloway's attorney did what Galloway claims his attorney did not do. Galloway is also unable to show that he was prejudiced by his attorney's failure to get the photograph admitted. Galloway testified at trial, and he had an opportunity to tell the jury that Miller was wearing steel-toed boots during their altercation. However, Galloway did not testify to this fact. Galloway has not demonstrated how admitting the photograph would have resulted in a different outcome at trial or how his attorney's failure to get the photograph admitted deprived him of a fair trial.
The district court did not err in finding Galloway's attorney was not ineffective because he was unable to get the photograph admitted into evidence.
Investigation of Defense and Contacting Witnesses
Galloway asserts that his trial counsel was ineffective because his attorney failed to contact and interview Miller's girlfriend, Lisa Winters. Galloway argues that Winters would have testified that the hole in the wall of Miller's apartment was made during a fight between Winters and Miller that occurred approximately 2 weeks before the incident between Galloway and Miller. Galloway claims that this testimony would have aided in his defense because it would cast doubt on Miller's testimony that the hole in the wall of Miller's apartment was made when Galloway slammed Miller's head into the wall. Galloway also points out that his trial counsel should have known that Winters was an important witness because Galloway's previous attorney identified Winters as an important defense witness in that attorney's motion to withdraw.
In Strickland, the Court noted that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. At the hearing on Galloway's 60–1507 motion, his trial counsel testified that he attempted to locate several witnesses, including a woman named Karma, who was present during the physical altercation between Galloway and Miller. Galloway's counsel could not specifically recall looking for Winters, but he did recall searching for multiple witnesses. Finally, Galloway's trial attorney stated that he probably spent a couple of hours searching for possible defense witnesses.
Galloway has failed to show that his counsel was ineffective by failing to contact and interview Winters. Furthermore, even if Galloway's attorney had located but failed to interview Winters, Galloway is unable to show how he was prejudiced by his attorney's failure to call Winters as a defense witness. As the district court noted, Galloway did not call Winters as a witness at the 60–1507 motion hearing. Galloway's testimony about the substance of Winters' testimony was entirely speculative. Finally, even if Galloway's trial counsel had called Winters as a witness, her testimony would have directly contradicted Galloway's trial testimony. At trial, Galloway testified that during the physical altercation inside Miller's apartment, Miller's butt struck the wall and created the hole in the wall. Thus, Galloway is unable to show that he was prejudiced by his attorney's failure to locate and interview Winters.
Galloway has failed to show that his trial counsel was ineffective or that any of his trial counsel's alleged failures deprived him of a fair trial. We affirm the decision of the district court denying Galloway's K.S.A. 60–1507 motion.
Affirmed.