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Martin v. State

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1140 (Kan. Ct. App. 2013)

Opinion

No. 107,639.

2013-03-8

Thomas MARTIN, Appellant, v. STATE of Kansas, Appellee.

Appeal from Reno District Court; Timothy J. Chambers, Judge. Sam S. Kepfield, of Hutchinson, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Reno District Court; Timothy J. Chambers, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.

MEMORANDUM OPINION


PER CURIAM.

A police investigation of a single-car accident involving Thomas Martin led to a consensual search of Martin and his car. The search uncovered a quantity of recently manufactured methamphetamine and $528 in cash. The police later obtained a search warrant for Martin's residence where they seized various drugs and drug paraphernalia used to manufacture methamphetamine. After being informed of his Miranda rights, Martin made a number of incriminating statements to the officers.

Martin was charged with a number of drug-related crimes. After his preliminary hearing, Martin moved to suppress the evidence seized during the search of his residence. After a hearing, the district court found probable cause to support the issuance of the search warrant. In doing so, the court ruled that even if it disregarded those portions of the affidavit that Martin claimed were false, the remainder of the affidavit was sufficient to establish probable cause. See Franks v. Delaware, 438 U.S. 154, 171–72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

Following Martin's conviction on all counts, a panel of this court affirmed all but one conviction and rejected Martin's contention that there was insufficient information within the affidavit to establish probable cause to issue the search warrant. State v. Martin, No. 93,435, 2008 WL 4471699, at *4 (Kan.App.2008) (unpublished opinion), rev. denied 288 Kan. 834 (2009).

Martin then moved for relief under K.S.A. 60–1507, claiming his trial counsel had been ineffective in not calling witnesses on his behalf at the hearing on his suppression motion.

Martin and his trial counsel, Charles O'Hara, testified at the hearing on Martin's motion. O'Hara had filed the suppression motion, and he supported the motion with an affidavit from Martin. In the motion Martin attacked inaccuracies in the officer's affidavit used to obtain the search warrant. O'Hara testified that he discussed with Martin the strategy of which witnesses should be called and that Martin agreed with his strategy. As O'Hara recalled, none of the witnesses they discussed would have provided an alibi for Martin. O'Hara chose not to interview the potential witnesses they discussed. He stated:

“[A] lot of the affidavit basically had to do with these people appearing at his house and not whether they did anything, there was no description of whether they did anything when they were there. So I, I just don't quite understand the relevance of having them appear to say that they didn't do anything when there's no evidence that they did anything.”
Martin agreed with the strategy of filing a motion under the principles outlined in Franks to undercut the probable cause affidavit rather than calling the witnesses to testify at the hearing on the suppression motion.

Martin testified at the hearing about the specifics of what some of the witnesses could have testified to if called to testify at the suppression motion hearing and about his request that O'Hara to speak with EMT personnel and the man at the car accident scene.

The district court noted the conflicts in the testimony of Martin and O'Hara and found O'Hara's testimony to be more credible. The court determined that O'Hara was not ineffective based on the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied 461 U.S. 1267 (1984). Further, the court found that even if the witnesses had been called at the motion to suppress or at trial, there was not a reasonable probability that the outcomes would have been different.

Martin appeals.

The parties are well acquainted with the standards applied in K.S .A. 60–1507 proceedings involving claims of ineffective assistance of counsel. The movant has the burden of proof. Supreme Court Rule 183(g) (2012 Kan. Ct. R. Annot. 274). On appeal, we review the district court's factual findings to determine whether they are supported by substantial competent evidence and whether they are sufficient to support the court's conclusions of law. Our review of the district court's ultimate conclusions of law is de novo. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009); Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007). Substantial evidence is legal and relevant evidence that a reasonable person might view as sufficient to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007). In conducting our review, it is not our role to reweigh conflicting evidence, reevaluate the credibility of witnesses, or redetermine questions of fact. State v. Elnicki, 279 Kan. 47, 69, 105 P.3d 1222 (2005).

Martin was guaranteed “reasonably effective” legal assistance. See Strickland, 466 U.S. at 687. To support a claim of ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have conducted the hearing differently. For Martin to prevail he must prove that O'Hara's performance was constitutionally deficient. See Strickland, 466 U.S. at 694;Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Martin must also show prejudice; that is, he must demonstrate a reasonable probability that the results of the hearing would have been different if not for O'Hara's claimed deficient performance. See Phillips v. State, 282 Kan. 154, 160, 144 P.3d 48 (2006).

We are highly deferential in examining defense counsel's performance. There is a strong presumption that counsel's conduct was within the wide range of professional assistance. Harris, 288 Kan. at 416. The benchmark for judging a claim of ineffective assistance of counsel is whether counsel's performance so undermined the proper functioning of the adversarial process that the proceeding cannot be relied on as having produced a just result. See Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).

To support his claim that O'Hara was ineffective by failing to investigate and call certain witnesses, Martin relies on State v. Sanford, 24 Kan.App.2d 518, 948 P.2d 1135,rev. denied 262 Kan. 968 (1997). Sanford stands for the proposition that trial counsel may be ineffective for failing to adequately investigate a defendant's alibi defense. 24 Kan.App.2d 518, Syl. ¶ 5.

Here, unlike in Sanford, Martin does not claim to have an alibi. Instead, he claims the witnesses would have undermined the veracity of the information in the search warrant affidavit. But the district court conducting the 60–1507 hearing considered Martin's proffer of testimony and ruled that the testimony of the proposed witnesses would not have affected the outcome of the motion to suppress. Rather than holding an evidentiary hearing under Franks, the district court assumed the information in Martin's affidavit was true and examined the affidavit supporting the search warrant without considering the challenged information. In doing so, the district court concluded that there was still a substantial basis to support a finding of probable cause for the search warrant.

But Martin also claimed there were other witnesses he wanted O'Hara to call. Generally, the decision of whether to call a certain witness is a matter of trial strategy subject to the discretion of defense counsel. State v. Ames, 222 Kan. 88, 100, 563 P.2d 1034 (1977). But “defense counsel cannot disregard pursuing a line of investigation and call it ‘trial strategy’ “ when he or she has not yet obtained facts upon which that decision could be made. State v. James, 31 Kan.App.2d 548, 554, 67 P.3d 857,rev. denied 276 Kan. 972 (2003); see Kenley v. Armontrout, 937 F.2d 1298, 1308 (8th Cir.1991). If counsel lacks the information to make an informed decision due to an insufficient investigation, then any reliance on “trial strategy” is inappropriate. Mullins v. State, 30 Kan.App.2d 711, 716–17, 46 P.3d 1222,rev. denied 274 Kan. 1113 (2002). But even when counsel's strategic choices are based on a less than complete investigation, counsel may not be ineffective if reasonable professional judgment supports such a limit on the investigation. Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009); see Flynn v. State, 281 Kan. 1154, Syl. ¶ 5, 136 P.3d 909 (2006).

“Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. [Citations omitted.]” State v. Hedges, 269 Kan. 895, 914, 8 P.3d 1259 (2000).

O'Hara testified that he discussed all of the possible witnesses with Martin and they jointly decided not to call these witnesses because they would not have been helpful to Martin's defense. The district court believed O'Hara's testimony over that of Martin. We do not revisit issues of witness credibility. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272(2011).

Besides, Martin fails to show prejudice. The district court specifically ruled that it did not believe that the testimony of the proposed witnesses would have affected the results of the proceeding. The court also stated that even if the affidavit would not have established probable cause, the evidence would have been saved because the officers would have had a good faith belief that the warrant was valid. See United States v. Leon, 468 U.S. 897, 104 S. Ct 3405, 82 L.Ed.2d 677,reh. denied468 U.S. 1250 (1984). In Martin's direct appeal, a panel of this court agreed and also found the officers' reliance on the warrant to be reasonable. Martin, 2008 WL 4471699, at *4.

We find no error in the district court's ruling on Martin's K.S.A. 60–1507 motion.

Affirmed.


Summaries of

Martin v. State

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1140 (Kan. Ct. App. 2013)
Case details for

Martin v. State

Case Details

Full title:Thomas MARTIN, Appellant, v. STATE of Kansas, Appellee.

Court:Court of Appeals of Kansas.

Date published: Mar 8, 2013

Citations

296 P.3d 1140 (Kan. Ct. App. 2013)