Opinion
No. 108,892.
2013-11-1
Manzoor JAGHOORI, Appellee, v. STATE of Kansas, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant. Stacey L. Schlimmer, of Schlimmer Law, LLC, of Olathe, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant. Stacey L. Schlimmer, of Schlimmer Law, LLC, of Olathe, for appellee.
Before STANDRIDGE, P.J., SCHROEDER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Manzoor Jaghoori was convicted of two counts of aggravated assault, aggravated battery, and criminal possession of a firearm after an altercation over a pair of speakers. His convictions were affirmed on direct appeal in State v. Jaghoori, No. 99,469, 2009 WL 2762457 (Kan.App.2009) (unpublished opinion), rev. denied June 24, 2010.
Jaghoori then filed a K.S.A. 60–1507 motion, alleging ineffective assistance of trial counsel. The district judge, who had also presided at Jaghoori's jury trial, held an evidentiary hearing and after receiving suggested findings of fact and conclusions of law granted the 60–1507 motion because Jaghoori's trial counsel stipulated to and presented more evidence than necessary as to a previous conviction. The State has appealed.
Factual and Procedural Background
The fight
On August 21, 2006, Jaghoori and his girlfriend, Ashley Clark, attempted to retrieve Clark's speakers from Clark's exboyfriend, Gregorio Urbieta De Lao. An altercation ensued between Jaghoori and De Lao, and Jaghoori took De Lao's car keys. Some witnesses indicated Jaghoori had a gun during the altercation. The details of who started the fight and what happened was highly contested. The facts were sufficient for the State to charge Jaghoori with two counts of aggravated assault, aggravated robbery, and criminal possession of a firearm.
Pretrial motions and trial
Prior to trial, Jaghoori's attorney, Carol Cline, filed a motion in limine agreeing to stipulate to Jaghoori's prior criminal conviction of aggravated battery with a firearm but arguing that no other information surrounding his arrest or contact with law enforcement should be admitted at trial. Jaghoori himself filed an amended motion in limine pro se to exclude his criminal history from trial. The State filed a motion pursuant to K.S.A. 60–455 opposing Jaghoori's motions, claiming that Jaghoori's past conviction was both relevant and material and should therefore be included. These motions were never heard by the district court; instead, Cline and the State submitted to the jury a joint stipulation admitting that Jaghoori had previously been convicted of aggravated battery with a firearm.
At trial, during her direct examination of Jaghoori, Cline asked him if he had been convicted of an offense involving a gun. Jaghoori answered yes, but maintained that he did not have a gun at this altercation. The district court included an instruction that told the jury the stipulation to Jaghoori's prior conviction could only be used to prove Jaghoori had been convicted of a prior person felony and was found to be in possession of a firearm at that time. In her closing argument, Cline emphasized to the jury that Jaghoori's prior conviction could only be used to prove that he had a prior conviction with a firearm, not that the jury could use the evidence to prove Jaghoori's propensity to have a firearm.
The jury convicted Jaghoori of all four counts. Jaghoori appealed to our court, and we affirmed his convictions. 2009 WL 27262457, at *2–3. Jaghoori subsequently filed a K.S.A. 60–1507 motion contending ineffective assistance of trial counsel.
The K.S.A. 60–1507 hearing
Jaghoori was granted a hearing on his K.S.A. 60–1507 motion, which was presided over by the same judge who heard Jaghoori's trial. At the hearing, Jaghoori testified that he was unaware of Cline's motion in limine to stipulate to his prior conviction until it was filed. Jaghoori did not agree with the motion, which is why he filed an amended motion pro se. Jaghoori also testified Cline did not show him the joint stipulation entered at trial, and they had not discussed the stipulation beforehand. Jaghoori admitted Cline visited him in jail and discussed strategy but maintained that Cline never discussed the motion strategy with him. Jaghoori also admitted he was unaware that his previous conviction was an element of his current charges.
Cline testified that she sent many letters to Jaghoori and visited him many times. Cline contradicted Jaghoori's testimony and said that she and Jaghoori had discussed the fact that Jaghoori was charged with criminal possession of a firearm, which was based in part on his prior criminal record. Although Jaghoori did not want that evidence to come in at all, Cline noted that the State had filed a K.S.A. 60–455 motion and felt that the information would be coming in. She made the strategic decision based on her experience to stipulate to the conviction and keep the State from introducing additional unfavorable evidence.
Cline said she relied on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), when making the stipulation but did not recall if she did any specific research to determine if she could stipulate to the offense outside of the presence of the jury. Cline thought she did research to see if she could stipulate just to the presence of a felony conviction, but she recognized that the stipulation presented was more extensive. Cline expressed the possibility that the State had rejected her original stipulation and the agreed-upon stipulation was the most mitigating way of getting this evidence in.
Counsel for Jaghoori argued that Cline had provided ineffective assistance of counsel because she stipulated to the actual crime of Jaghoori's prior conviction rather than simply stipulating to the fact he had been convicted. Jaghoori argued the similarity between the two cases clearly affected the jury despite the limiting instructions, and he compared the effect of the stipulation to a stipulation of a prior DUI in a DUI case.
The State countered that this case was not similar to a DUI case because the prior conviction was an actual element of the crime Jaghoori was charged with. The State pointed out that Cline made a strategic decision to present the evidence in the least harmful way, and it argued strategic decisions were not to be reviewed with the bias of hindsight.
After receiving suggested findings of fact and conclusions of law, the district court, in a comprehensive eight-page decision and order, sustained Jaghoori's K.S.A. 60–1507 motion and granted him a new trial.
In reviewing Jaghoori's contention that much more information was presented to the jury than was necessary to stipulate to Jaghoori's prior conviction, the court's decision below stated:
“ ‘Unless there is a dispute over the status of the prior conviction (for example, was it or was it not a felony), the admission of the type and nature of the prior crime can only prejudice the jury.’ State v. Lee, 266 Kan. 804, 815, 977 P.2d 263 (1999).
“(1) When requested by a defendant, the trial court must approve a stipulation whereby the parties acknowledge that the defendant is, without further elaboration, a prior convicted felon. (2) At the same time, the State may place on the record, at its discretion, the actual judgment(s) and sentence(s) of the prior felony conviction(s). (3) Neither these documents nor the number and nature of the prior convictions should be disclosed to the trial jury. (4) Out of a jury's presence and after consultation with counsel, the defendant should be required to personally acknowledge the stipulation and his or her voluntary waiver of his or her right to have the State otherwise prove the convicted felony status element beyond a reasonable doubt. (5) The defendant's stipulation of convicted felon status satisfies the prosecution's burden of proof for that element of the crime. (6) If the element of “convicted felon” is established by stipulation, the judge may thereafter instruct the jury that it may consider the convicted felon status element of the crime as proven by agreement of the parties in the form of a stipulation.
“[266 Kan. at 815–16, 977 P.2d 263.
“State v. Mitchell, 285 Kan. 1070, 1077, 179 P.3d 394 (2008), interpreted Lee and held that:
“ ‘[T]he Folley court [State v. Folley, No. 89,368, 2004 WL 1714918 (Kan.App.2004) (unpublished opinion).] did not say that the State was required to present evidence to the jury regarding the defendant's possession of a firearm during the predicate felony. Such a conclusion would contradict this court's directive in Lee, which specifically requires the district court to admit the actual judgment(s) and sentence(s) of the prior felony conviction(s) into the record without disclosing them to the jury, thereby protecting the State's interest in proving all of the elements of the defendant's status.
In Mitchell, the Court held it was sufficient and appropriate for the following stipulation to be submitted to the jury: ‘That the Defendant Mario Lorenzo [ sic ] Mitchell was adjudicated a juvenile offender in Wyandotte County District Court on April 2004, and that this adjudication prohibited him from owning and possessing a firearm on January 8, 2005.’ Mitchell, 285 Kan. 1070 at 1073, 179 P.3d 394.
“Thus, Ms. Cline should have kept the fact that Petitioner's prior crime was attempted aggravated battery and that Petitioner possessed a firearm during the prior crime from being presented from the jury. Ms. Cline did not provide any strategy for wording the stipulation to include that petitioner was convicted of attempted aggravated battery and that a handgun was used, therefore the Court is unable to find that her decision was based on sound trial strategy. See Strickland, 466 U.S. at 689[;] Chamberlain, 236 Kan. at 654, 694 P.2d 468.
“Further, the Court cannot say that Petitioner was not prejudiced by the presentation of this evidence to the jury. The evidence at trial was primarily eyewitness testimony. Three witnesses testified that Petitioner had a gun during the crimes. Ms. Clark and Petitioner both testified that, although he was in the alley, Petitioner did not have a gun with him. No gun was ever located. As noted in Lee, ‘the admission of the type and nature of the prior crime can only prejudice the jury.’ 266 Kan. at 815, 977 P.2d 263.”
The court below concluded by holding “Because the stipulation to Petitioner's prior crime at trial included more information about the prior crime than required by law, and because the Court finds that the Petitioner's trial was probably prejudiced by this erroneously admitted evidence, Petitioner's K.S.A. 60–1507 petition is granted.”
The State filed a motion to reconsider. The district court denied it, ruling Jaghoori's trial “was prejudiced by this erroneously admitted evidence.”
The State timely appeals.
Analysis of Appellate Issues
The State raises the following three issues on appeal:
“(1) Since the jury was instructed that the prior conviction stipulation related solely to the criminal use of weapons count, and since jurors are presumed to have followed the jury instructions, the district court erred in granting a new trial on the three other counts.”
“(2) There was insufficient evidence that the experienced public defender's performance in limiting the prior crime evidence by stipulating to a prior conviction was deficient and prejudicial.”
“(3) The district court misapplied the standard for ineffective assistance of counsel when it found the prejudice prong was satisfied because ‘it could not say that [movant] was not prejudiced by the presentation of this evidence to the jury.’ “
More appropriately, the above three arguments are part and parcel of the overall question we face which is: Did the district court err in determining Jaghoori's trial counsel provided ineffective assistance of counsel when counsel stipulated to and presented testimony that was not required by law and may have been prejudicial to Jaghoori?
Standards of review
“When the district court conducts an evidentiary hearing on a K .S.A. 60–1507 motion, as in this case, the appellate court reviews any factual findings for substantial competent evidence and evaluates whether those findings support the trial judge's conclusions of law. [Citation omitted.] The district judge's legal conclusions are reviewed de novo. [Citation omitted.]” Thompson v. State, 293 Kan. 704, 715–16, 270 P.3d 1089 (2011).
The Thompson decision further sets forth the determination that is to be made in cases like ours in the following manner:
“A claim of ineffective assistance of trial counsel presents mixed questions of law and fact requiring de novo review. [Citations omitted.] To support a claim of ineffective assistance of counsel, it is incumbent upon a defendant to prove 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. [Citations omitted.]
“The first prong of the test for ineffective assistance of counsel 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, and a fair assessment of attorney performance requires that every effort 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. We must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citation omitted.]
“ ‘Once a defendant has established counsel's deficient performance, the defendant also must establish prejudice by showing that 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. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citation omitted.]’ Bledsoe v. State, 283 Kan. 81, 90–91, 150 P.3d 868 (2007).
“See also State v. Bricker, 292 Kan. 239, 245, 252 P.3d 118 (2011).” Thompson v. State, 293 Kan. at 715, 270 P.3d 1089.
The two-prong test set forth above was established by Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh denied467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), and recognized in Kansas by Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985), and has since been applied in innumerable cases.
The State acknowledges our two-prong test set forth in Chamberlain and its progeny but attacks the district judge's decision in the following areas, contending: (1) Jaghoori failed to provide sufficient factual evidence to support his claim, (2) the joint stipulation counsel agreed to was sufficiently limited in scope, and (3) the district court misapplied the standard of review for ineffective assistance of counsel. We will discuss each contention of the State and how they apply the two-point test to determine if reversible error exists.
Substantial competent evidence?
The State contends Jaghoori failed to meet his burden of identifying the acts or admissions which amounted to ineffective assistance of counsel. Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009), establishes that as the K.S.A. 60–1507 movant, Jaghoori bears the burden of demonstrating his trial counsel's ineffective assistance.
The State charged Jaghoori with possession of a firearm within 5 years of a felony conviction pursuant to K.S.A.2006 Supp. 21–4204(a)(2), which provided:
“(a) Criminal possession of a firearm is:
....
“(2) possession of any firearm by a person who has been convicted of a person felony or a violation of any provision of the uniform controlled substances act under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony or violation, or was adjudicated a juvenile offender because of the commission of an act which if done by an adult would constitute the commission of a person felony or a violation of any provision of the uniform controlled substances act, and was found to have been in possession of a firearm at the time of the commission of the offense.”
Motions in limine to exclude details of Jaghoori's prior felony crimes were filed both by Jaghoori's counsel and Jaghoori. The State filed a motion to utilize K.S.A. 60–455. None of the motions were heard by the court, but counsel agreed to the following joint stipulation regarding the prior offense: “The parties hereby agrees as follows: that the defendant Manzoor Jaghoori, was previously convicted in Johnson County, Case No. 04CR2578, of one count of attempted aggravated battery, a person felony, under Kansas law and that the crime was committed with a firearm, a handgun.”
Cline asserted at the K.S.A. 60–1507 hearing that she agreed to the stipulation to mitigate the harm and prevent further details from being presented. But, the record clearly shows that rather than limiting the prior crime involvement, the fact of the conviction was again brought before the jury by the following testimony:
“Q. [Ms. Cline:] Now, there's been some questions about a gun. Do you admit that you have a previous conviction that involved a gun?
“A. [Mr. Jaghoori:] Yes.
“Q. [Ms. Cline:] And that that was a person felony?
“A. [Mr. Jaghoori:] Yes, it was.
“Q. [Ms. Cline:] And it is still your testimony that you did not have a gun on this occasion?
“A. [Mr. Jaghoori:] Yes, it is.”
Although Jaghoori's trial counsel indicated she relied on Old Chief, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574, there was no testimony that she had researched or considered State v. Lee, 266 Kan. 804, 977 P.2d 263 (1999), which contains the specific steps allowed in cases like this in Kansas, which the district court set forth in its decision and we have previously quoted in this opinion.
Interestingly, in Old Chief, the United States Supreme Court found that a district court abused its discretion in admitting the record of the defendant's prior conviction after the defense attempted to stipulate to a status offense, ruling that the risk of unfair prejudice substantially outweighed the discounted value of the record of conviction. 519 U.S. at 190–92. The Court found that a district court abuses its discretion if it spurs a stipulation to a prior conviction if the name or nature of the prior offense risks prejudicing the jury. 519 U.S. at 174, 191–92.
The State finally makes a harmless error argument, contending the conviction would have been admitted to prove an element of the crime and, if the procedure was improper, it should be considered harmless. Here, as it was in Lee, 266 Kan. at 814, 977 P.2d 263, the problem with this argument is that the district judge who heard the jury trial and the K.S.A. 60–1507 evidence did not make such a finding. To the contrary, the district court held the way the prior conviction was handled to be “prejudicial.”
Jaghoori contends Cline did little to mitigate the damage of Jaghoori's prior felony, as she brought it up to him during direct examination after already stipulating to more prejudicial information than was necessary. Specifically in part, that it was a Johnson County crime. Further, Lee, 266 Kan. at 815, 977 P.2d 263, supports the proposition that when prior convicted status is not disputed, admission of evidence regarding this information can only prejudice the jury. Because Cline stipulated to more evidence than was necessary and then aggravated the error by discussing the prior conviction during direct examination and closing argument, Jaghoori argues the district court's findings are supported by substantial competent evidence.
We agree with Jaghoori's arguments and the ruling of the district judge who was the trial judge as well as the judge who heard the K.S .A. 60–1507 testimony. This fact is especially important to Jaghoori as the converse is often cited in the multitude of opinions where findings of ineffective assistance of counsel are not made.
“ ‘ “Much deference and reliance must be placed upon the wisdom and determination of the trial judge who saw all of the [criminal case] first hand as [it] happened.” ‘ “ Pabst v. State, 287 Kan. 1, 16, 192 P.3d 630 (2008), (quoting Gilkey v. State, 31 Kan.App.2d 77, 78, 60 P.3d 351,rev. denied 275 Kan. 963 (2003) [quoting Chamberlain v. State, 236 Kan. 650, 659–60, 694 P.2d 468 (1995) ] ).
The trial court considered and we are likewise asked the question of why should Jaghoori's counsel's action not ultimately be fully protected because it fell within the rubric of trial strategy, which is afforded a great deal of deference. Bledsoe v. State, 283 Kan. 81, 93–94, 150 P.3d 868 (2007); Crease v. State, 252 Kan. 326, 338, 845 P.2d 27 (1993).
Cline's action was trial strategy, but unfortunately, as the trial court found, it was strategy that had the effect of prejudicing her client's position beyond what was necessary. The only testimony about the language of the stipulation was that the State might not have agreed to wording more favorable to Jaghoori. This is not sufficient justification. It is a critical issue at a trial of these issues; the overly expansive wording of the stipulation, and the reinforcing of the fact on direct examination, clearly demonstrates that the handling of the stipulation provided substantial competent evidence for the district court's ruling.
Limited scope of the joint stipulation
The State's fallback argument to the others it presented is that the jury was instructed to only consider the joint stipulation of Jaghoori's prior felony conviction in Johnson County involved “a firearm, a handgun,” as it related to Count 4, and Cline reminded the jury of this fact. The State then points out that juries are presumed to follow the instructions of the district court, State v. Reid, 286 Kan. 494, 521, 186 P.3d 713 (2008); therefore, by granting Jaghoori's K.S.A. 60–1507 motion, the district court must have presumed the jury failed to follow its instructions.
Further, the State argues the prior conviction had no nexus to the crimes in this case. The prior crime was aggravated battery with a firearm, while here, the keys were turned over by De Lao after he was physically attacked—not threatened with a gun. Therefore, because the instruction pertained only to Count 4 and there was no substantial evidence Cline's representation fell below acceptable standards as to Counts 1, 2, and 3, the district court committed reversible error in ordering a new trial as to all counts (1, 2, 3, and 4).
Jaghoori counters that although a limiting instruction was given, Cline called attention to Jaghoori's prior conviction of attempted aggravated assault involving a handgun during direct examination. The jury was tasked with determining whether Jaghoori had a handgun during the altercation in question. Three witnesses said Jaghoori had a gun, but another witness and Jaghoori himself testified no gun was present. Further, no gun was ever located. With this contradicting testimony, Jaghoori argues Cline's stipulation of a prior conviction of a crime of the same type and nature served to prejudice the jury as to all of the charges.
Jaghoori also disagrees with the State's assessment that the prior conviction had no logical nexus to the crimes of this case. Jaghoori points out that his prior conviction and his current charges all involved use of force with a handgun in Johnson County. According to him, these similarities would be more than sufficient to persuade and, therefore, prejudice a Johnson County jury.
The judge's first finding was that the unnecessary evidence probably prejudiced the jury, but on the ruling on the motion for reconsideration, the judge flatly held that prejudice existed. It was not limited to Count 4 and applied to all counts being charged by the State. Again, because the same judge presided over both the trial and the K.S.A. 60–1507 motion, Jaghoori emphasizes the deference we should give to the district court's factual findings and rulings. See Pabst, 287 Kan. at 16, 192 P.3d 630;Gilkey, 31 Kan.App.2d at 78, 60 P.3d 351.
We are not persuaded by the State's argument. As we previously stated in the first issue, the stipulation clearly fell below an effective standard of counsel on a critical issue. But for this error, there is a reasonable probability that the outcome of Jaghoori's trial would have been more favorable to him. Jaghoori's prior crime clearly had a logical nexus to the crimes with which he was charged. Every count Jaghoori was charged with involved possession or use of a weapon as one of the elements. While the jury was instructed to consider the stipulation only to Count 4, Kansas courts are clear that an unnecessary admission of the name and nature of the prior conviction can only serve to prejudice a jury. Lee, 266 Kan. at 815, 977 P.2d 263. The district court relied on substantial competent evidence in making this decision and did not err in applying it to all the counts charged.
Application of the standard of ineffective assistance of counsel
The State's final argument is that the district court misapplied the standard for determining ineffective assistance of counsel and our standard of review of the district court's ultimate conclusions of law is de novo. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).
The State argues that the district court afforded no deference to Cline's performance. In its initial ruling, the district court held that it “cannot say that [Jaghoori] was not prejudiced by the presentation of this evidence to the jury,” and Jaghoori's trial was “probably prejudiced.” The State contends that this is not the proper standard and that it is Jaghoori's burden to prove prejudice, rather than the State's burden to prove harmless error. Supreme Court Rule 183(g) (2012 Kan. Ct. R. Annot. 274). But, as we have previously noted, the trial court later held in ruling on the motion to reconsider that Jaghoori's trial “was prejudiced by the erroneously admitted evidence.”
The State cites the United States Supreme Court decision of Strickland, 466 U.S. at 693: “[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice .” Based on the ruling below, it is clear the district court found that actual prejudice existed.
Jaghoori counters that the district court did give deference to Cline's strategy at trial but emphasized the fact that Cline gave no evidence regarding the wording of the stipulation. Jaghoori also points out the district court held the wording of the stipulation could “only prejudice the jury.”
It is clear to us that the experienced district judge used the correct legal standard and considered both the lack of effective trial strategy and the prejudice the wording of the stipulation caused. The prejudice did not come only from the enlarged stipulation, but also from the questioning at trial which emphasized Jaghoori's previous conviction in Johnson County involving a firearm.
It is seldom that a new trial is ordered after an evidentiary hearing on a K.S.A. 60–1507 motion alleging ineffective assistance of counsel. But, this is one of the rare exceptions. We would be doing an injustice, not only to Jaghoori but also to the trial judge, if we did not give deference to the district court who heard all the witnesses at both the trial and at the K.S.A. 60–1507 hearing and reached a logical conclusion utilizing the correct standards to determine ineffective assistance of counsel and resulting prejudice.
Affirmed.