Opinion
No. 106,492.
2012-09-21
Jack R. LaPOINTE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Johnson District Court, John P. Bennett, Judge. Richard Ney, of Ney & Adams, of Wichita, for appellant. Andrew J. Dufour, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court, John P. Bennett, Judge.
Richard Ney, of Ney & Adams, of Wichita, for appellant. Andrew J. Dufour, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Jack R. LaPointe's third appeal arising out of his March 2004 convictions of aggravated robbery and aggravated assault. The testimony at trial regarding the crimes and the relevant procedural history of the case are reported in detail in the opinion in LaPointe's second appeal in LaPointe v. State, 42 Kan.App.2d 522, 525–35, 214 P.3d 684 (2009), rev. denied 290 Kan. 1094 (2010) ( LaPointe II ). Here they are in an abbreviated form:
On the evening of October 30, 2000, Carrie Wellman was checking out customers at the Payless Shoe Source store when a man walked in with a gun and proceeded to rob the store. In the process he committed an aggravated battery. The robber ran from the store with approximately $1,000 in a plastic shopping bag.
Brandy Loveall was in a car in the parking lot when she saw a man walking fast carrying a gun. She made eye contact with the man before he passed her and ran between two buildings. When the police arrived, they checked out a nearby apartment complex where they recovered $138 which the robber had dropped, along with several items of clothing.
Loveall was interviewed the next day. She described the man she saw the previous night. She said he was carrying a double-barreled, sawed-off shotgun. At trial Loveall identified LaPointe as the man she saw that evening. Wellman and 11–year–old Monserrat Santos, who was in the store with her mother at the time of the robbery, gave descriptions that had some minor differences.
Joseph Seeber seemed to match the suspect's description and lived in the area, so a little over a week following the robbery Wellman was shown a photo lineup that included Seeber. Wellman rather reluctantly picked Seeber's photo. But the police did not question Seeber about the robbery because of their lack of confidence in Wellman's identification of him. At trial, Wellman testified she would not recognize the man who robbed her if she saw him again.
About a week later Loveall was shown the same photo lineup. She immediately stated that none of the individuals in the photos was the robber. Then, in November 2000, Michael Norton, a suspected bank robber, told authorities that LaPointe had admitted to committing the robbery. In January 2001, after Norton pled guilty to federal bank robbery charges, FBI agents interviewed Norton who admitted that he had driven LaPointe to the Payless store and waited in the car while LaPointe robbed the store. According to Norton, when LaPointe returned to the car he told Norton he had thrown the shotgun onto the roof of the nearby Fashion Bug store. The police and an FBI agent went to the Fashion Bug, where they recovered the shotgun.
The police then showed Loveall a second photo lineup that included LaPointe's photo. As soon as she saw the photos Loveall identified LaPointe as “the guy.”
At trial Norton claimed that after the robbery he dropped LaPointe off at the home of LaPointe's girlfriend, Deanna Burch, where Burch's car was parked outside. Burch contradicted this testimony, saying she had taken her car to work that evening. She said LaPointe was not at her home when she returned from work.
Seeber testified that he did not rob the Payless store. He said he did not have a car and did not know Norton or LaPointe.
Loretta LaPointe, who married LaPointe in March 2001, testified that she had seen him take a sawed-off shotgun out of the trunk of her car in early October 2000, shortly before the robbery. She told LaPointe that the gun could not stay there, and she never saw it again. She testified that LaPointe had been at her home on the night of the robbery babysitting her children.
Forensic experts testified that no worthwhile latent prints were found on the shotgun or on the money that was recovered. The prints taken at the store did not match Seeber, LaPointe, or Norton. Hairs on the clothing items found at the apartment complex were examined at the Kansas City, Missouri, police crime lab, and none matched LaPointe.
LaPointe's convictions were affirmed by this court in State v. LaPointe, No. 93,709, 2006 WL 2936496 (Kan.App.2006) (unpublished opinion), rev. denied 283 Kan. 932 (2007) ( LaPointe I ).
In April 2007, LaPointe moved for postconviction DNA testing in his criminal case, but his motion was denied. LaPointe did not appeal the denial of this motion.
In June 2007, LaPointe filed a K.S.A. 60–1507 motion, asserting various claims of ineffective assistance of counsel. The district court denied relief without holding an evidentiary hearing. LaPointe appealed. In LaPointe II the court remanded the case to the district court for an evidentiary hearing to resolve issues regarding trial counsel's performance. 42 Kan.App.2d at 539–40.
The panel majority in LaPointe II identified three issues that needed to be addressed at an evidentiary hearing: whether trial counsel was ineffective (1) in failing to object to a detective's testimony regarding the reliability of Loveall's and Wellman's eyewitness identifications; (2) in failing to file a notice of alibi that contained Loretta's correct address; and (3) in failing to request further DNA testing. Further, the panel majority noted that “[i]n the event that the trial court finds on remand that LaPointe's trial counsel was deficient in not requesting further DNA testing, then the court should consider whether LaPointe is entitled to obtain the hair and clothing for DNA testing.” 42 Kan.App.2d at 524.
District Judge John Bennett conducted the evidentiary hearing on LaPointe's motion on remand. District Judge John Anderson had conducted the trial and also entered the order denying LaPointe's K.S.A. 60–1507 motion without an evidentiary hearing, but Judge Anderson retired before the case was returned for an evidentiary hearing. Nevertheless, Judge Bennett was well versed in the matter, having “read the entire trial transcript and reviewed the entire case file” and having considered the testimony at the evidentiary hearing before ruling.
LaPointe testified at the evidentiary hearing along with his trial counsel, Donald Smith; DNA analysis expert Dean Stetler; and alibi witness Loretta Howe, who was still married to LaPointe but no longer used his surname. Following the hearing, Judge Bennett issued a detailed, 12–page memorandum decision denying relief on LaPointe's motion. LaPointe appeals.
Standard of Review
On appeal, we review the court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. We have de novo review of the district court's ultimate conclusions of law. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007).
In order to prevail on his motion, LaPointe had to satisfy the well-known, two-pronged test: first, he must establish that Smith's performance as counsel was constitutionally deficient. This requires a showing that Smith made errors so serious that his performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Second, LaPointe must establish that Smith's deficient performance prejudiced LaPointe's defense, thus depriving him of a fair trial. See Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). The benchmark for judging an ineffective assistance of counsel claim is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
Judicial scrutiny of Smith's performance is highly deferential and requires us to consider all the evidence that was before the jury. We presume that Smith's conduct fell within the broad range of reasonable professional assistance. To establish prejudice, LaPointe had to demonstrate a reasonable probability that, but for Smith's deficient performance, the outcome of the proceeding would have been more favorable to him. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Harris, 288 Kan. at 416. Finally, we do not second-guess counsel on strategic decisions made after an appropriate investigation.
Eyewitness Testimony
LaPointe claims that Smith was ineffective in failing to object to Detective Scott Atwell's testimony regarding the reliability of Wellman's and Loveall's identifications of two different suspects in separate photo lineups.
In its brief filed in the district court in opposition to LaPointe's motion (misidentified by the State as its answer to LaPointe's petition), the State argued that “Detective Atwell was not passing on the credibility of Wellman or Loveall.” The State's position was that Atwell's testimony provided the explanation “why Detective Atwell did not follow up on Seeber when he did follow up on LaPointe.”
In his reply brief, LaPointe did not address the State's contention regarding the purpose of Atwell's testimony on this point. To the contrary, LaPointe assumed Atwell's testimony was improper under any possible scenario and argued: “In order to make a ruling on the merits of these issues, potential testimony from trial counsel will be needed to explain why he failed to object to this improper testimony and potential testimony from Petitioner may be needed.”
The district court summarily denied relief, holding:
“[Movant's] claims of ineffective assistance of trial counsel are not supported by the record. The record shows that [movant's] counsel provided reasonable assistance. Further, [movant] does not allege any prejudice as a result of counsel['s] alleged errors; he provides only conclusory allegations of error.”
LaPointe appealed. The panel majority determined that Atwell's testimony constituted an impermissible vouching for the credibility of one eyewitness over another. LaPointe II, 42 Kan.App.2d at 538–39. In his concurring opinion Judge Malone picked up on the argument in the State's brief before the district court which characterized Atwell's testimony not as an opinion on the credibility of another witness, but rather as an explanation of why Atwell focused his investigation on LaPointe. Judge Malone stated:
“As to trial counsel's failure to object to Detective Scott Atwell's testimony about the reliability of Carrie Wellman's photo lineup identification, this testimony was offered to explain why Atwell focused his investigation on LaPointe rather than on Joseph Seeber. At trial, Wellman acknowledged that she was unsure of her pick in the photo lineup. Atwell was not expressing an opinion on the credibility of another witness. Furthermore, he was not testifying at trial as an expert witness on eyewitness identification.” LaPointe II, 42 Kan.App.2d at 557.
The panel majority concluded that the credibility of the eyewitness testimony was “crucial” to LaPointe's convictions and there was a substantial issue “as to whether defense counsel was ineffective in failing to object to Atwell's testimony.” 42 Kan.App.2d at 539–40. Because “the parties have not been given the opportunity to present witnesses on this issue,” the majority reversed the district court's summary denial of relief and remanded for an evidentiary hearing. 42 Kan.App.2d at 539–40.
One of the defense strategies at trial was to go after Detective Atwell for failing to investigate Seeber as a suspect. At the evidentiary hearing, Smith, LaPointe's trial counsel, was directed to trial testimony in which Detective Atwell was asked by the prosecutor whether he ever contacted Seeber, whom Wellman had picked out of the photo array. Atwell responded that he did not because he “ ‘had absolutely no confidence in the way she picked out photograph No. 1.’ “ Smith conceded that this testimony was objectionable. But when asked whether at the time of Atwell's testimony he thought Atwell was vouching for the credibility of one eyewitness over another or whether he thought Atwell was explaining his investigation decision, Smith testified, “[R]eading it in a transcript form, I can see it both ways actually.”
Whether counsel's conduct is constitutionally deficient is an issue of law for the court. See Bellamy, 285 Kan. at 354–55. The district court found that in failing to object to Atwell's testimony, Smith's representation of LaPointe did not fall below the standard required of trial counsel. The court also found that LaPointe was not prejudiced by Smith's failure to object.
In LaPointe II, the majority observed: “The testimony of Atwell as a law enforcement officer would be given more credit than other witnesses because of Atwell's official position and because his position may imply that his testimony was reliable.” 42 Kan.App.2d at 539. Judge Bennett discounted this observation, finding that from his experience as a trial judge presiding over hundreds of jury trials such a blanket pronouncement was not warranted. He noted instances when “juries give no credit to the testimony of the police” and instances when he is surprised by “what made a difference to them and what didn't matter.”
As a preliminary matter, LaPointe argues that the majority's view of the impropriety of the questions put to Atwell about Loveall and Wellman is the law of the case and could not be revisited in the remand proceedings in the district court or in this appeal. We disagree.
The law of the case doctrine “is ‘a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so.’ [Citations omitted.]” Venters v. Sellers, 293 Kan. 87, 99, 261 P.3d 538 (2011).
In LaPointe II the majority did not consider whether Atwell was not commenting on the credibility of the eyewitnesses but was describing his reason for focusing the investigation on LaPointe rather than on Seeber. This was because the State raised this contention in the brief it filed in the district court in opposition to LaPointe's motion, but it did not raise this contention before the Court of Appeals in LaPointe II, as disclosed by our close reading of the State's appellate brief in those proceedings.
The law of the case doctrine addresses matters already decided in prior proceedings in the case. The appellate court in LaPointe II was never asked to consider the applicability of the caselaw prohibiting one witness from vouching for the credibility of another witness when, as now argued, the testimony was elicited in order to explain the course of the criminal investigation. The LaPointe II majority did not examine the testimony in this context. Consequently, the issue as now framed remained undecided when the case was remanded to the district court, and the law of the case doctrine did not apply.
One of the themes of LaPointe's defense at trial was that Detective Atwell botched the investigation when he focused on LaPointe rather than Seeber. This was made clear in Smith's opening statement at trial when he noted that in a photo lineup Wellman identified Seeber as the robber. Smith stated, “That individual was identified as Joseph [Seeber]. Mr. [Seeber] was not investigated as part of this case and has never been charged in this case and has never been subject to examination regarding this case.” Smith returned to this theme in his closing argument when he argued, “The Sheriff's Office dropped the ball on Joseph Seeber.”
Wellman testified at trial before Detective Atwell testified. Wellman was the store cashier on duty at the time of the robbery. She heard the robber yell, “ ‘No one move.’ “ She testified that the robber was carrying a long gun at his side. Wellman collected the money from the safe and the cash register. “He told me to hurry up when I wasn't going fast enough with the money.” At that point she said, “I wasn't looking at him.... I didn't really look at him a whole lot.” Wellman only observed the robber for 20 seconds. “Once I realized what was going on, I could not look at him anymore.” He had a bandana covering his nose and the lower half of his face; only his eyes, forehead, and the top of his head were exposed.
About 2 weeks later, Wellman was shown a photo lineup of various individuals. At the time of trial Wellman could not remember whom she picked out of the lineup. She testified that it took her a while to pick someone out of the lineup. She did so by covering the bottom half of the faces in the photo because she had only seen the upper portion of the robber's face. “I just wasn't for sure who it was that did it, so I just [picked someone] [p]robably because I felt I kind of had to pick someone.” She said she would not recognize the man who robbed her if she saw him again. The man she identified as the robber was Seeber.
Loveall also testified before Detective Atwell testified. She was in a car in the parking lot when she saw a man walking fast and carrying what appeared to be a sawed-off shotgun. By this time the robber had pulled the bandana from his face and it was “[p]ulled back over his hair.” She and the robber made eye contact, and she stated, “We stared at each other.” As the robber passed by, Loveall turned and continued to look at him.
Loveall was shown more than one photo lineup. She said the man she saw was not in the first lineup. She identified LaPointe as the robber in the second lineup. She also identified LaPointe in the courtroom as the armed man she saw running from the Payless store immediately after the robbery.
When the State called Detective Atwell to testify, the prosecutor asked, “Did you ever contact Mr. Seeber, the guy that Ms. Wellman picked out?” Atwell explained that he did not because he had no confidence in the manner in which Wellman picked Seeber out of the photo lineup, but he did have confidence in Loveall's identification of LaPointe.
At the evidentiary hearing on LaPointe's motion, the State argued to the district court:
“Ask yourself this as the Judge. If Mr. Smith had said, Well, Detective Atwell, you never followed up on Mr. Seeber, did you? No. You only followed up on Mr. LaPointe? Yes. Would there be a problem with the prosecutor standing up saying, Detective Atwell, why didn't you follow up on Mr. Seeber? I think it's a valid question.
“The detective explained why [he] followed this lead, not that one. And he never says, I thought Brandy Loveall was telling the truth, I found her more honest, I found her testimony more credible. He said, as the way the identifications went down, which you would probably have a right to explain anyway, with Miss Wellman covering up the faces and not being sure in her identification, and Brandy Loveall identifying him right away, he had more confidence in her identification so [he] ran with this lead instead. I think you would have a right to explain that, if nothing else, on redirect.”
In Bledsoe, the movant claimed that counsel was ineffective for failing to object to Sheriff Dunaway's opinion regarding whether a suspect's statement was a “confession.” The sheriff testified that a few days after the suspect was arrested, the sheriff “began to have a problem with the arrest because Tom's story ‘wasn't panning out.’ “ 283 Kan. at 96. The movant argued that a witness may not express an opinion concerning the credibility of another witness. The Bledsoe court acknowledged that while this is a correct principle of law, “there was nothing objectionable about Dunnaway's testimony on this basis.” 283 Kan. at 97. The court found that Dunnaway was merely describing the statements and his reaction to them and did not state an opinion about whether the statements were worthy of belief. 283 Kan. at 97.
The Bledsoe court also noted that the district court concluded that Dunnaway's testimony was admissible opinion testimony under K.S.A. 60–456. The court concluded:
“This statement also helped to explain the course of the investigation, which turned from Tom to Floyd. In addition, as lay-witness testimony, the statement was rationally based on the sheriffs perception; if he is regarded as an expert, it was based on data known to him and on his experience as a longtime law enforcement officer. See K.S.A. 60–456(b). We agree with the district court that [trial counsel's] failure to object to this testimony does not constitute ineffective assistance.” 283 Kan. at 97.
The majority in LaPointe II stated that “testimony attacking the credibility or reliability of eyewitness identifications is inadmissible in Kansas.” 42 Kan.App.2d at 538. But here the testimony was elicited to explain the course of the investigation and to address the defense contention that Atwell conducted a shoddy investigation.
We consider the observation in LaPointe II about the impact of police testimony on jurors to be mere dicta. Here, the jury received a proper instruction on the factors to consider in evaluating eyewitness testimony. We have no hesitancy about the capacity of jurors in situations such as this, with testimony such as this, to arrive at their own conclusions regarding the weight to be given the conflicting eyewitness testimony. Given the nature of the testimony from Wellman and Loveall, we fail to see how LaPointe was prejudiced by Atwell's explanation of the reason for his decision to pursue the investigation of LaPointe. Atwell's testimony explaining the path of the police investigation did not deprive LaPointe of a fair trial. Judge Bennett did not err in holding that Smith's failure to object to Atwell's testimony did not fall below the standard required of competent counsel and that LaPointe was not deprived of a fair trial by Smith's failure to object.
Alibi Witness Testimony
LaPointe next contends Smith was ineffective in failing to conduct a reasonable investigation into Loretta LaPointe's correct residential address in the notice of alibi. LaPointe's pretrial notice of alibi stated that at the time of the robbery, LaPointe was at Loretta's home in Tonganoxie. In fact, Loretta lived at an address in Kansas City, not Tonganoxie.
Loretta testified that she and LaPointe were married in March 2001, about 5 months after the robbery. She first learned of the charges against LaPointe a few months later in the summer of 2001. At the time of the trial, she was uncertain whether she would continue to be married to LaPointe. (By the time of the evidentiary hearing following the remand in LaPointe II, Loretta was still married to LaPointe but no longer used his surname and had not seen him for many years.) Loretta was living with LaPointe at the time of the robbery. She testified at trial that LaPointe was at home babysitting her two children on the evening of the robbery while she went to work.
In her direct testimony Loretta never identified her residential address. On cross-examination she was asked if she lived at the address in Tonganoxie. She said she did not. In the bench conference that followed, the prosecutor claimed she had been misled by the address in the alibi notice and moved to strike Loretta's testimony. The prosecutor stated that she had intended to introduce testimony from the owner of the Tonganoxie property that Loretta did not live there at the time of the robbery. After some private negotiations between the parties, it was agreed that the State could introduce into evidence the notice of alibi and the parties could inquire into it. Loretta's testimony resumed, and she testified she lived in Kansas City at the time of the robbery.
The prosecutor then spent 14 pages of trial transcript testimony cross-examining Loretta on matters unrelated to her residence address.
On redirect, Loretta testified that LaPointe “was not straying very far from home” at around the time of the robbery because it was at about that time that he disclosed to Loretta that he had been having an affair with Deanna Burch and that Burch was pregnant with his child.
Loretta testified that she had never told Smith she lived in Tonganoxie. She testified that early in the case she frequently spoke to Smith, but in early 2004 she stopped contacting Smith and became less cooperative.
Smith then called Courtney Beck to testify. Beck worked in Smith's office. She testified to Loretta's lack of communication with Smith's office and to the concern that Loretta would not appear and testify at trial on LaPointe's behalf. Beck prepared the notice of alibi using Google to link Loretta's phone number to her residence address. Beck's direct testimony consisted of three pages of the trial transcript.
The prosecutor ended her closing argument with an attack on the credibility of Loretta's alibi testimony. In Smith's closing argument, he began by acknowledging his error regarding Loretta's address in the alibi notice. He stated that the error was his and not Loretta's. He said he “wanted to make sure she was here to be able to testify” notwithstanding the cooperation problems and the “things that were going on” between Loretta and LaPointe.
In her rebuttal, the prosecutor returned to Loretta's alibi testimony and stated, “[T]he only way you can make them say exactly what you want them to say is to script it. Loretta LaPointe's version and the defendant's version were virtually identical.”
At the evidentiary hearing following LaPointe II, Smith was asked whether he thought it was helpful to the defense for him to attack Loretta's credibility by bringing up her lack of cooperation. Smith testified, “I don't believe that's an attack of credibility, I think it might even enhance her credibility because it's showing she had, quite frankly, had changed sides and wasn't certain which side she would be on and came into court and testified to the best of her ability.” The questioning of Smith turned to Smith's decision to call his secretary to testify about Loretta's lack of cooperation. Smith was asked, “Are you not attacking Ms. LaPointe at that point?” Smith responded, “I would disagree with the characterization of attacking her, I don't think because a witness is reluctant to testify that that necessarily creates that sort of thought.” When pressed on the issue, Smith responded, “I think we have to agree to disagree on that.”
Judge Bennett found that Smith gave the wrong address in the notice of alibi and admitted his mistake. Regarding the claims that the address error undermined Loretta's credibility, the judge stated:
“Mr. Smith's handling of the issue after it was made known could cut both ways. He decided to fully expose his reasons for the mistake. Was this wrong? Should he have just let it go? Using hindsight, perhaps it would have been better not to have bothered to explain it. But the court finds that the mistake did not deprive [LaPointe] of a fair trial. The court cannot find that but for Mr. Smith's error in listing the address there was a reasonable probability that the result of the trial would have been different.”
Loretta and LaPointe had somewhat of a rocky relationship. Before their marriage, and while they were living together, LaPointe admitted to Loretta that Burch was pregnant with his child. Nevertheless, Loretta and LaPointe were married in March 2001, about 5 months after the robbery. Loretta first learned of the charges against LaPointe a few months later in the summer of 2001. She initially cooperated with Smith, but her cooperation waned as time went on. By the time of the trial she was contemplating divorce.
The prosecutor argued in closing that Loretta's alibi testimony was scripted and should not be believed. The evidence of Loretta's lack of cooperation indicates otherwise. It is not unusual for alibi testimony to come from a mother, wife, or girlfriend who is eager to assert that the defendant could not have done it because he was with her at the time. The inherent bias behind such testimony is readily apparent, and such testimony is often rejected by the jury. But here, Loretta's lack of cooperation served to vitiate, to some extent, that inherent bias. Given her rocky relationship with LaPointe, it is certainly understandable that she would not be willing to concoct an alibi to come to his rescue. As Smith testified, rather than undermining Loretta's testimony, the evidence of her waning cooperation tended to enhance it. Ultimately, the jury did not believe that LaPointe was babysitting Loretta's children on the night of the robbery. It is apparent that the jury found Loveall's eyewitness identification of LaPointe more persuasive. But, LaPointe has not demonstrated that the alibi notice error or the questioning of Loretta's cooperation led to this outcome.
LaPointe also argues that Smith attempted to shift the blame to Loretta to cover his lack of investigation. But Smith made it clear in closing argument that the error was entirely his. We find no credible support for LaPointe's argument on this point.
LaPointe relies on Henry v. Poole, 409 F.3d 48, 63–67 (2d Cir .2005). In Henry, a federal habeas corpus proceeding based on a claim of ineffective trial counsel, trial counsel was found to be ineffective for presenting an alibi witness for the day after the crime rather than for the night of the crime. In Henry, the robbery occurred at 12:10 a.m. on August 10. The alibi witness testified to the events of August 10 and testified that the defendant spent the night of August 10 (after the robbery) with her. Unlike in Henry, Loretta never testified in error about where she lived and where LaPointe spent the evening babysitting her children on the evening of the robbery. She testified that LaPointe was at her home in Kansas City. Loretta testified that the address contained in the alibi notice was not her address. The alibi notice was not of her doing. The unequivocal testimony was that Smith's office staff made the mistake in preparing the alibi notice. As discussed earlier, we are satisfied that it was not the address error that undermined Loretta's testimony. Henry does not apply.
We find substantial evidence to support the district court's findings, and we find no error in the district court's legal conclusion. Smith admitted the error in listing Loretta's address, but LaPointe failed to show the necessary element of prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2042, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984).
DNA Testing
Finally, LaPointe puts a new spin on an issue previously addressed in LaPointe II. In that earlier appeal LaPointe argued “that his trial counsel was ineffective in failing to request independent DNA testing of hairs found on a bandana and biological material on clothing allegedly worn by the robber.” 42 Kan.App.2d at 543. The court in LaPointe II noted our Supreme Court's holding in Moncla v. State, 285 Kan. 826, 837–38, 176 P.3d 954 (2008):
“ ‘Some of the hair found at the scene belonged to the [murder victim]. So long as a question remained as to the source of the remaining hair and other substances found at the scene, Moncla's trial counsel was free to argue Moncla's theory that someone else committed the murder. That defense would have been compromised had DNA testing identified Moncla as the source of these items found at the scene. Thus, the decision not to move the court for testing may be reasonably characterized as “a tactical decision and not a deficient one.” [Citations omitted.] We defer to decisions of trial counsel on matters of reasonable trial strategy.’ “ LaPointe II, 42 Kan.App.2d at 543.
The court in LaPointe II also noted the holding in Sanders v. State, 26 Kan.App.2d 826, 829, 995 P.3d 397 (1999), rev. denied 269 Kan. 934 (2000), in which the court followed a similar path, finding that trial counsel's decision not to pursue independent DNA testing was a tactical decision. “[I]ndependent testing might, as petitioner argues, have produced evidence in his favor; however, it also might have verified that the State's evidence was accurate. Defense counsel had shown the State's evidence to have some exploitable weaknesses which would disappear if another and independent test verified the original results.” 26 Kan.App.2d at 829. However, the LaPointe II court found the record inadequate to determine whether Smith's actions were a matter of trial strategy, so the case was remanded for an evidentiary hearing. 42 Kan. App, 2d at 544–45.
At LaPointe's trial there was testimony that the crime lab was able to collect some hairs from clothing, but, according to the State, the samples were insufficient for DNA analysis. But Robert Booth, the chief criminalist at the Kansas City, Missouri, crime lab, conducted a hair analysis and testified that none of the hairs was a match to the sample he obtained from LaPointe. According to Booth, his comparison testing did not affirmatively eliminate LaPointe as the sample donor, but the sample most likely did not come from him.
At the evidentiary hearing following the LaPointe II remand, Smith testified that his decision not to request further testing of the clothes was part of his trial strategy. He stated, “Given our strategy and the desire to raise reasonable doubt, I, quite frankly, was afraid of what those results might show and how that might alter my defense.” Smith was concerned that hiring a DNA expert could result in information that would hurt, rather than help, LaPointe's defense. DNA test results could affect Smith's ability to put LaPointe on the stand to testify on his own behalf. Smith testified, “I believed that we could establish that it wasn't Jack without finding out information that we may not have wanted to know.” Smith stated that his review of the facts of this case caused him to believe that information obtained as a result of further DNA testing was far more likely to “cause a problem rather than create a solution.”
Smith did not specifically recall discussing the DNA testing issue with LaPointe. While Smith said he would have taken LaPointe's opinion into consideration, “I don't think it would have changed my thoughts.” According to Smith, a “big part” of why he did not request DNA testing was because he was convinced that LaPointe was guilty of the robbery. Smith based this belief on the facts of the case, as well as his knowledge of LaPointe's relationship with Norton and LaPointe's extensive criminal history. Smith did not believe that his opinion regarding LaPointe's involvement crippled the defense.
LaPointe now argues that when Smith failed to pursue DNA testing because he believed LaPointe was guilty of the crime, Smith had a conflict of interests that prejudiced LaPointe. He is also critical of Smith's failure to consult with him about DNA testing.
On this second point, in Bledsoe v. State, 283 Kan. 81, 92, 150 P.3d 868 (2007), the court discussed which issues are reserved for trial counsel:
“[C]ertain decisions relating to the conduct of a criminal case are ultimately for the accused: (1) what plea to enter; (2) whether to waive a jury trial; and (3) whether to testify. Others are ultimately for defense counsel. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. See State v. Ames, 222 Kan. 88, 100, 563 P.2d 1034 (1977).”
Although Smith could not recall specifically asking LaPointe's opinion, he consulted with LaPointe on numerous occasions before choosing not to pursue the independent DNA testing. Most noteworthy, while Smith would have taken LaPointe's opinion into account, he was satisfied he would have made the same strategic decision not to request DNA testing. When meeting with LaPointe to discuss trial strategy, Smith believed that they discussed the evidence that the police found, what items had been tested, and the results of those tests. There are no allegations that Smith was not prepared or that he failed to investigate the evidence in this case. Smith consulted with LaPointe regarding the evidence linking him to the robbery and made a tactical decision not to pursue independent DNA testing.
With respect to the conflict of interests claim, LaPointe relies on State v. Smith, 291 Kan. 751, 247 P.3d 676 (2011). In Smith, defense counsel informed the district court that he would not present relevant evidence during trial because he believed that his client was guilty. Defense counsel had reviewed the surveillance tape of the robbery and was convinced that the robber was his client; thus, he refused to admit evidence that his client's physical condition rendered him unable to perform the robbery. The Supreme Court reversed the defendant's robbery conviction on the basis that defense counsel failed to advocate for his client and protect his interests. By refusing to present relevant evidence on the basis that he was convinced of his client's guilt, defense counsel “invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty.” 291 Kan. at 757. The Supreme Court found that defense counsel ignored the separation of duties in a criminal prosecution:
“ ‘The lines of demarcation separating the duties of each of the players in a criminal trial are sacrosanct, i.e., the prosecutor representing the people; the defense attorney representing the accused; the trial judge representing the interpreter of the law; and the jury representing the finder of facts.’ State v. Kemble, 291 Kan. 109, 238 P.3d 251, 260 (2010). If any of those lines are crossed, the criminal justice system is compromised.” Smith, 291 Kan. at 756.
Those lines were not crossed at LaPointe's trial. Smith made a tactical decision not to pursue independent DNA testing because of his concern that obtaining DNA test results not yet in existence could harm, rather than help, his client by restricting his ability to argue the deficiencies in the police investigation and the lack of DNA evidence linking LaPointe to the crime. Smith still zealously defended LaPointe and vigorously pursued a theory of defense that LaPointe was not properly identified and did not commit the robbery. Smith's refusal to conduct the independent DNA testing was a tactical decision intended to help LaPointe's defense, not a judgmental decision that invaded the province of the jury.
Judge Bennett provided a thorough and reasonable analysis in rejecting LaPointe's theory that he was denied conflict-free counsel:
“There must be many cases where, because of the evidence and knowledge of the lawyer of the facts of the case; the lawyer believes his client is guilty. The inquiry goes further, however, to determine whether the belief in guilt caused the lawyer to fail to do something he should have done or do something he should not have done. In the Smith case [Smith, 291 Kan. 751,] cited by defendant the Supreme Court of Kansas found that counsel failed to present truthful relevant evidence that would assist his client because he believed his client was guilty. I do not believe the Court intends to introduce a new test for ineffective assistance of counsel which requires only a showing that the lawyer believed in the guilt of his client. If that were the test, there would be defendants who could not be represented by a competent attorney. Attorneys cannot be expected to have no opinion concerning facts they know about. The mistake Mr. Rumsey made in the Smith case was refusing to represent his client in lawful ways after coming to the decision his client was the robber in the video. Of course he couldn't present evidence knowing it was false, but he could present truthful relevant evidence. Refusing to do so created a conflict of interest.
“Here, Mr. Smith believed the defendant was guilty, but his actions on the defendant's behalf were consistent with this belief and his assessment of the risks and rewards which could follow further DNA testing. To fail to make such a judgment in the interest of the defendant would be improper. An attorney is bound to make informed judgments in the interest of this client.”
We concur with Judge Bennett's analysis and his finding that LaPointe was not denied conflict-free counsel at trial. Judge Bennett's findings of fact are supported by substantial competent evidence and are sufficient to support his conclusions of law.
Affirmed.