Opinion
No. 105,123.
2012-06-15
Vondel Shamar JOHNSON, Appellant, v. STATE of Kansas, Appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge. Sam S. Kepfield, of Hutchinson, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Following an evidentiary hearing, the Geary County District Court denied Vondel Shamar Johnson's collateral attack on his conviction for felony obstruction of a police officer. Johnson argued that the lawyer who represented him in the jury trial resulting in his conviction failed to perform in a constitutionally adequate manner. The district court found no constitutional deficiency and denied Johnson's motion filed under K.S.A. 60–1507. This court affirms that determination.
The parties are familiar with the facts and the procedural history of the criminal prosecution and the 60–1507 motion. We recount them briefly.
On July 11, 2006, Junction City Police Officer Shawn Weeks responded to a reported domestic dispute between Johnson and Kelly Skaggs. The dispatcher provided a physical description of Johnson and also informed Weeks that Johnson had an outstanding arrest warrant. As Weeks approached the address given for the dispute, he saw Johnson and recognized him as matching the dispatcher's description. Weeks parked his patrol car and walked up to Johnson. Weeks asked Johnson his name, and Johnson replied, “Dell.” Johnson then ran from Weeks, who gave chase. According to Weeks, as he closed in on Johnson, he pulled out his Taser and threatened to deploy the weapon. Johnson stopped and complied with Weeks' commands. Johnson testified that Weeks approached him with the Taser at the ready. Johnson said he was fearful and moved away from Weeks toward where he saw other people. Johnson described doing so at a “jogging” pace. Johnson testified that when he got closer to those people, he stopped, laid down, and offered no resistance to Weeks.
Johnson was tried on a charge of obstruction of official duty under K.S.A. 21–3808 for running from Weeks. The statute provided that a person commits felony obstruction by interfering with an officer attempting to carry out his or her duties related to a felony offense. If the officer is acting regarding a misdemeanor, any obstruction is itself a misdemeanor.
At the jury trial, Weeks' testimony about his reasons for stopping Johnson and then taking him into custody was somewhat confusing. He testified that he detained Johnson to investigate the domestic battery and mentioned the felony warrant. The warrant was admitted into evidence during the State's case. On cross-examination, Weeks reiterated his investigation of the domestic battery. And on redirect, he mentioned only the battery investigation in explaining the basis for stopping Johnson. Johnson testified in his own defense. The State then recalled Weeks. Weeks testified that he intended to take Johnson into custody on the felony warrant. If Weeks had acted only to investigate the domestic battery, any obstruction on Johnson's part would have amounted to a misdemeanor. If Weeks acted at least in part to arrest Johnson on the warrant, any obstruction could be considered a felony.
Johnson's trial counsel argued that the jury should be instructed on both felony and misdemeanor obstruction, given Weeks' vacillating testimony. The district court agreed. The elements instruction effectively presented both to the jury. And the verdict form allowed the jury to specify whether Weeks was acting in the course of his duties related to the investigation of the domestic battery or related to arresting Johnson on the warrant. The jury found Johnson guilty of interfering with Weeks' efforts to make an arrest on the warrant, thus convicting him of the felony obstruction offense. The district court sentenced Johnson to a presumptive punishment of 12 months' probation with an underlying term of imprisonment of 12 months.
Johnson took a direct appeal of his conviction, and this court affirmed in an unpublished decision. State v. Johnson, No. 98,898, 2008 WL 3916026 (Kan.App.2008), rev. denied 287 Kan. 767 (2009).
On December 23, 2008, Johnson timely filed his 60–1507 motion alleging his trial counsel failed to adequately represent him. The district court appointed new counsel for Johnson on his motion and conducted an evidentiary hearing on December 15, 2009. The district court issued a written ruling on December 31, 2009, denying Johnson relief. Johnson has timely appealed the denial of his 60–1507 motion, and that is what we now consider. On appeal, Johnson alleges three ways his trial counsel failed to adequately represent him: (1) entering the case late and inadequately preparing for trial; (2) requesting an instruction that included misdemeanor obstruction; and (3) not objecting to the State recalling Weeks to testify after the defense case.
When reviewing the denial of a 60–1507 motion after a full evidentiary hearing, an appellate court accepts the district court's findings of fact to the extent that they are supported by substantial competent evidence. The appellate court exercises unlimited review of the determinative legal issues. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).
To prevail on his motion, Johnson must show that his trial counsel's performance, based on the totality of circumstances, “fell below an objective standard of reasonableness.” Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). If so, Johnson must then demonstrate prejudice resulting from the substandard representation to the extent that there would have been “a reasonable probability” of success at trial had he been adequately represented. 292 Kan. at 274. The measure of the lawyer's representation outlined in Holmes mirrors the standard in Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance); see also Haddock v. State, 282 Kan. 475, 511–12, 146 P.3d 187 (2006) (citing Chamberlain ). As both the United States Supreme Court and the Kansas Supreme Court have noted, review of the representation should be deferential and hindsight criticism tempered lest the evaluation of a lawyer's performance be unduly colored by lack of success notwithstanding demonstrable competence. Strickland, 466 U.S. at 689–90;Holmes, 292 Kan. at 275. Rarely should counsel's representation be considered substandard when he or she investigates the client's circumstances and then makes a deliberate strategic choice among multiple options. Strickland, 466 U.S. at 690–91.
First, Johnson contends his trial counsel failed to adequately prepare. Counsel took over the case from another member of the public defender's office about 4 days before trial. The first lawyer had investigated and prepared the case but had a conflict when Johnson failed to appear for an initial trial date; the trial was continued to a week that lawyer had set aside to undergo a surgical procedure. Johnson's substitute counsel had joined the public defender's office shortly before being assigned his case for trial. She had tried about half a dozen jury cases in 7 years of practice before then. Johnson contends that trial counsel did not meet with him before the trial started. At the hearing, Johnson's trial counsel could not recall if she had met with him before the trial.
On its face, the case is not factually complicated. It literally was a 1–day, 2–witness trial. Weeks and Johnson knew what happened between them, and that formed the backbone of the obstruction charge. Both testified at trial; no one else did.
In his appeal, Johnson outlines nothing that his trial counsel failed to do because of insufficient time to prepare. He neither suggests other people should have been called as witnesses nor identifies physical evidence that was overlooked. He does not indicate his testimony would have been any different, let alone better with additional preparation from his counsel. He points to the other errors he asserts—the request for the jury instruction and the failure to object to Weeks testifying after the defense rested—as indicative of a lack of pretrial preparation. But Johnson does not explain how more preparation time before trial would have influenced those decisions, since they grew out of Weeks' discordant testimony. That was not something to have been anticipated or specifically planned for. Johnson has failed to show constitutionally deficient preparation or resulting prejudice of any sort.
Next, Johnson contends trial counsel erred in requesting and securing a jury instruction that would have allowed the jurors to convict him of misdemeanor obstruction rather than felony obstruction. He never really articulates how that decision prejudiced him. Without that instruction, the jury would have been left with the choice of convicting Johnson of felony obstruction or finding him not guilty. Given the jury's decision to convict him of felony obstruction in any event, the option to compromise on a misdemeanor never came into play and didn't appear to have influenced the jury or its verdict.
In addition, allowing the jury a way to convict of a misdemeanor rather than a felony reflects a sound trial strategy. Felonies typically carry harsher direct penalties and greater collateral consequences than misdemeanors. See State v. Dugan, 47 Kan.App.2d ––––, 276 P.3d 819, 2012 WL 1564006, at *12 (2012). We decline to find constitutionally substandard representation or prejudice based on the jury instruction.
Finally, Johnson contends his trial counsel's failure to object to Weeks' being recalled as a prosecution witness after the defense had concluded its presentation of evidence amounted to constitutionally deficient representation. Johnson characterizes Weeks' appearance at that stage as rebuttal and contends his testimony was improper on that basis. The record itself fails to show that anyone put that label on Weeks' additional testimony. The limited discussion in the record is more consistent with a request from the State to reopen its case-in-chief to present further evidence.
The difference matters. Rebuttal testimony, by definition and purpose, must respond to evidence the defense has offered; it is not to sew up raggedy edges in the State's case. See State v. Sitlington, 291 Kan. 458, 464, 241 P.3d 1003 (2010) (describing limited scope and purpose of rebuttal evidence). Weeks' testimony might have been objectionable on that basis. But a trial court, acting in its sound discretion, may permit the State to reopen its case to present evidence even after the matter has been submitted to the jury. State v. Horton, 292 Kan. 437, 438–40, 254 P.3d 1264 (2011).
During the trial, outside the presence of the jury, the district court and the lawyers discussed Weeks' testimony to that point. The district court said Weeks testified that he had arrested Johnson “because of the domestic, not because of the felony warrant.” In response, the prosecutor said: “Then I would ask the Court to allow me to put him back on [the stand]; because that's not what he arrested [Johnson] for.” The prosecutor then recalled Weeks as a witness. That exchange looks to be a reopening of the State's case and not the presentation of rebuttal evidence.
We are unwilling to find there was an abuse of discretion on the district court's part in permitting Weeks to testify at that juncture. A trial court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A trial court errs in that way when its decision “ ‘goes outside the framework of or fails to properly consider statutory limitations or legal standards.’ “ 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007] ). Finally, a trial court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011) (outlining all three bases for an abuse of discretion).
The district court did not misapply governing legal standards or disregard some factual predicate in allowing the State to recall Weeks as a witness. And we decline to conclude no other judge would have permitted the State to reopen its case under the circumstances here. In ruling on the 60–1507 motion, the district court noted that it would have overruled any objection to Weeks' additional testimony. As we have noted, the record also shows that Weeks mentioned the warrant during his direct examination and indicated he was “trying to serve” it on Johnson. The jury could have found that sufficient to conclude Weeks meant to arrest Johnson based on the warrant, notwithstanding the apparent inconsistencies in his testimony. Taken individually or collectively, those considerations weigh against any suggestion that Johnson's trial counsel breached the standards required to satisfy the Sixth Amendment or that a breach, if there were one, caused Johnson substantial prejudice.
In short, Johnson has failed to demonstrate reversible error in the denial of his 60–1507 motion.
Affirmed.