Opinion
No. 110,317.
2014-10-10
Randy J. JOHNSON, Appellant, v. STATE of Kansas, Appellee.
Appeal from Douglas District Court; Michael J. Malone, Judge.Adam M. Hall, of Collister & Kampschroeder, 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; Michael J. Malone, Judge.
Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Randy J. Johnson appeals the ruling of the Douglas County District Court rejecting a collateral challenge to his convictions on four counts of attempted murder based on purportedly inadequate representation by his trial and appellate lawyers. Johnson premised the challenge, brought under K.S.A. 60–1507, on the notion that those lawyers failed to advance what may be described as innovative arguments to exclude the testimony of a psychologist the State called as a trial witness. The standard for competent representation embodied in the right to counsel under the Sixth Amendment to the United States Constitution does not require criminal defense lawyers to foresee, let alone make, wholly original legal arguments. Accordingly, the district court correctly denied Johnson relief, so we affirm.
The details of the underlying crimes aren't especially relevant here, since the issues focus exclusively on the psychological testimony. Shortly before Christmas 2004, Johnson and some friends were partying late at an apartment in Lawrence. Four neighbors complained about the noise, and the dispute rapidly escalated. Johnson drew a handgun and fired at the complainants—striking and injuring three of them. Johnson was apprehended shortly after the shooting and appeared to be intoxicated. The State charged Johnson with four counts of attempted second-degree murder—one count for each of the injured persons and the last count for the individual in the group who was not actually hit by the gunfire. A jury convicted Johnson on the charges, and he appealed the convictions. The Kansas Supreme Court affirmed in all material respects on direct appeal. State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008) (court upholds convictions and sentences but vacates imposition of attorney fees on Johnson and remands that issue for further proceedings).
At trial, Johnson argued that he had significant mental deficits that combined with his intoxication prevented him from forming the required intent to commit attempted second-degree murder. He offered the testimony of Dr. David Mouille, a psychologist, in support of that theory. The State countered with Dr. Gerald Vandenberg, also a psychologist. Before trial, Johnson had secured a ruling from the district court requiring Dr. Vandenberg to tape record his clinical examination of Johnson. Dr. Vandenberg acknowledged that he had turned off the tape recorder, in violation of the court order, during part of the examination. The lawyer representing Johnson at trial filed a motion to exclude Dr. Vandenberg as a witness for that reason. The trial lawyer argued exclusion to be an appropriate sanction for violation of the discovery order. The district court denied the motion, finding that Dr. Vandenberg's violation was an appropriate subject for cross-examination and possibly a contempt citation. After the trial, the district court conducted a hearing and did hold Dr. Vandenberg in indirect contempt.
The lawyer appointed to handle Johnson's direct appeal asserted the district court's ruling allowing Dr. Vandenberg to testify as a point of error. The appellate lawyer characterized the ruling as a due process violation but cited no authority supporting the argument. In considering the point, the court indicated it could not “find a basis” for Johnson's position and stated “[a] criminal defendant does not have a due process right to have expert witnesses record interviews.” 286 Kan. at 832, 190 P.3d 207. The court also found that Dr. Vandenberg's failure to record a portion of the clinical interview did not deprive Johnson of a fair trial, since Johnson was no worse off than defendants in the vast majority of cases involving psychological experts who commonly are not required to record their examinations. 286 Kan. at 832–33, 190 P.3d 207.
In his 60–1507 motion, Johnson raised new arguments for excluding Dr. Vandenberg's testimony and submitted that the lawyers handling his trial and the direct appeal were constitutionally ineffective for failing to use those arguments. The district court conducted an evidentiary hearing on the motion and issued a lengthy written decision denying it. Johnson has timely appealed that denial to us.
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 they are supported with 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 demonstrate constitutionally ineffective assistance of either the lawyer handling his case in the district court or the lawyer briefing the direct appeal, Johnson must show representation falling below an objective standard of reasonableness and resulting in legal prejudice, meaning there probably would have been a different outcome had the representation been adequate. 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 v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). 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. The Strickland test guides review of both trial and appellate advocates' handling of criminal cases. See Miller v. State, 298 Kan. 921, 929–30, 318 P.3d 155 (2014) (applying Strickland test to performance of lawyer handling direct appeal).
In support of his 60–1507 motion, Johnson contends his lawyers should have fashioned a due process argument based on Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), reh. denied 488 U.S. 1051, 109 S.Ct. 885, 102 L.Ed.2d 1007 (1989), that not only would have excluded Dr. Vandenberg's testimony but presumably would have required dismissal of the charges. In Youngblood, the Court held that absent bad faith, a law enforcement agency's failure to retain or preserve evidence that might have been exculpatory does not violate a criminal defendant's constitutional due process rights. 488 U.S. at 58. In Youngblood, police officers investigating the sexual assault of a 10–year–old boy failed to refrigerate his clothing they had collected as evidence. As a result, biological material on the garments degraded and could not be scientifically tested. There was no way to determine whether the testing would have produced inculpatory or exculpatory results. Nothing in the record indicated the officers acted purposefully to prevent testing of the evidence. At trial, Youngblood pinned his defense on identity and was convicted. On direct appeal, the Arizona Court of Appeals found the degradation of the biological material denied Youngblood due process and ordered that he be discharged as a remedy. State v. Youngblood, 153 Ariz. 50, 54, 734 P.2d 592 (1986). The United States Supreme Court reversed and remanded, holding no due process violation could be established absent bad faith on the part of the police. The Court distinguished Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and other cases requiring the government to disclose plainly exculpatory evidence to a criminal defendant. The lost biological material in Youngblood was just that-lost and irretrievable. Nobody could say if it would have helped or hurt Youngblood.
Johnson contends his trial and appellate lawyers should have argued Youngblood to show he had been denied due process when Dr. Vandenberg turned off the tape recorder during the clinical examination. Although there are similarities between Youngblood and what happened here, the Court's decision is not directly controlling. Rather, Youngblood has to be extended to apply here.
In engaging the comparison, we make a couple of reasonable assumptions to advance the argument. First, we assume Dr. Vandenberg to have been acting as a government agent when he examined Johnson. Dr. Vandenberg had been hired by the State specifically to render an expert opinion in this case and otherwise maintained a private, clinical practice that included some forensic work in civil and criminal cases. Second, we assume that Dr. Vandenberg's deliberate decision to turn off the tape recorder rose to the level of bad faith contemplated in Youngblood.
But there is a significant difference between Youngblood and the circumstances here. The biological evidence in Youngblood and whatever it would have shown regarding the perpetrator of the crime were wholly unavailable to the jurors deciding that case. The same is not true for Johnson. Both he and Dr. Vandenberg were available to testify about what happened during the clinical examination. Although a tape recording might have provided a more accurate and complete account for the jurors, evidence about the unrecorded portion of the examination remained for the factfinders to consider.
As we indicated at the outset, Johnson relies on a creative application and extension of Youngblood as the underpinning for his claim of ineffective assistance of counsel. We need not and expressly do not decide whether Youngblood should be applied here. That is not the question before us. The issue is whether the lawyers handling Johnson's trial and direct appeal were constitutionally inadequate for failing to make the argument Johnson has come up with in his 60–1507 motion.
A criminal defense lawyer typically will not be considered constitutionally ineffective for failing to foresee a change in the law years in the offing. Baker v. State, 20 Kan.App.2d 807, Syl. ¶ 3, 894 P.2d 221, rev. denied 257 Kan. 1091 (1995); see Mayo v. Henderson, 13 F.3d 528, 533–34 (2d Cir.1994) (under Strickland test, “[c]ounsel is not required to forecast changes in the governing law”); Lilly v. Gilmore, 988 F.2d 783, 785–86 (7th Cir.1993); accord Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). In turn, a 60–1507 motion cannot be based on such a failure. Likewise, a criminal defense lawyer is not required to assert “novel” theories to satisfy his or her client's Sixth Amendment right to adequate counsel. Scott v. Werholtz, 38 Kan.App.2d 667, 674, 171 P.3d 646 (2007), rev. denied 286 Kan. 1180 (2008); see Anderson v. United States, 393 F.3d 749, 754 (8th Cir.2005); United States v. Rezin, 322 F.3d 443, 446–47 (7th Cir.2003). This is such a case.
Even accepting that the rule of Youngblood could be extended to control here, the argument is an untested, novel one. Johnson cites no other cases applying Youngblood in the way he suggests or in some roughly analogous manner. Nor does he cite to treatises, articles, or other sources suggesting the argument. Under those circumstances, Johnson's trial and appellate lawyers did not deviate from the Sixth Amendment standard for adequate representation. Johnson cannot support his 60–1507 motion with that argument.
A different circumstance might be presented if a particular argument had been advanced in a number of cases and an appellate court had yet to pass on it in a precedential decision or an argument had been much discussed in the legal literature as being potentially fruitful. The record here contains no evidence of that sort. We decline to venture an abstract and unnecessary suggestion about how that claim might be dealt with in a 60–1507 proceeding.
For his second point on appeal, Johnson contends the district court incorrectly rejected his argument that allowing Dr. Vandenberg to testify at trial violated his rights to compulsory process, confrontation, and a fair trial. This is a variation on the theme outlined in his first point. Johnson submits that the lawyers representing him at trial and on direct appeal were constitutionally deficient for failing to raise those grounds to preclude Dr. Vandenberg from testifying.
The Sixth Amendment provides criminal defendants “compulsory process for obtaining witnesses in [their] favor.” U.S. Const. amend. VI. The right, then, affords a defendant subpoena power to secure the appearance of witnesses at trial to offer otherwise admissible testimony. Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Johnson's argument that Dr. Vandenberg's testimony violated his compulsory process rights is inapposite. If Johnson had wanted to call Dr. Vandenberg as a witness at trial and the district court refused to authorize a subpoena to compel his otherwise unlikely attendance, we would have a compulsory process issue. But not here.
Johnson argues that the broad purpose of compulsory process is to afford a criminal defendant access to favorable evidence. And he says that purpose was thwarted when Dr. Vandenberg turned off the tape recorder during the clinical examination. We think that overextends the constitutional right. If not, it, too, amounts to a novel argument. Johnson's lawyers did not provide inadequate representation by failing to argue a compulsory process violation.
The Sixth Amendment right to confrontation requires that criminal defendants, typically through counsel, have the opportunity to cross-examine witnesses providing evidence against them. See Bullcoming v. New Mexico, 564 U.S. ––––, 131 S.Ct. 2705, 2713–14, 180 L.Ed.2d 610 (2011) (prosecution may admit testimonial statement of absent witness at trial only if defendant had previous opportunity to cross-examine witness); State v. Friday, 297 Kan. 1023, Syl. ¶ 19, 306 P.3d 265 (2013). Johnson had the chance to cross-examine Dr. Vandenberg at trial and took advantage of it. The cross-examination would have been different had Dr. Vandenberg recorded the entire examination of Johnson. But that doesn't create a Confrontation Clause violation. Nor would it necessarily have resulted in a more effective attack—Johnson would not have been able to skewer Dr. Vandenberg for deliberately violating a court order regulating the clinical examination. We don't see a Confrontation Clause claim here, so Johnson's lawyers can't be constitutionally ineffective for failing to assert it.
The “fair trial” argument really amounts to the due process claim Johnson raised as his first point recycled with a different title. The claim is no more effective with another name.
In short, as to Johnson's second point, he advances compulsory process and confrontation claims that have no merit, so the lawyers representing him at trial and on direct appeal can't be faulted for failing to assert them. Moreover, Johnson could have suffered no prejudice from the failure to raise points that have no legal merit. Even if we are missing something and the arguments actually have some colorable basis in the law, they are sufficiently unusual and obscure that Johnson's lawyers could not have been constitutionally ineffective for failing to assert them. Finally, the fair trial argument adds nothing to the due process argument we have already rejected as insufficient for relief on the 60–1507 motion.
The district court ruled correctly in denying Johnson's 60–1507 motion.
Affirmed.