Opinion
No. 108,847.
2013-11-22
Billy Joe McCASLIN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., PIERRON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Billy Joe McCaslin appeals the district court's denial of his K.S .A. 60–1507 motion and subsequent untimely amended 60–1507 motion. McCaslin argues (1) the district court erred in finding the additional claims of ineffective assistance of counsel alleged in his amended 60–1507 motion did not relate back to the original 60–1507 motion, and (2) the district court erred in denying his original 60–1507 motion without holding an evidentiary hearing. We affirm.
A jury found McCaslin guilty of first-degree premeditated murder, rape, and aggravated arson in connection with the death of Angela Duran–Ortiz (A.D.). He received a hard 50 life sentence for the murder conviction, 246 months for the rape conviction, and 61 months for the aggravated arson conviction, with all sentences to run consecutively.
The Kansas Supreme Court affirmed McCaslin's convictions and sentences in State v. McCaslin, 291 Kan. 697, 245 P.3d 1030 (2011). Reiterating the underlying facts reported in detail in that Supreme Court opinion is not necessary for this appeal. However, based on the arguments presented, some details of the court's holdings in McCaslin are required.
Our Supreme Court held that McCaslin had failed to preserve his argument that the district court admitted hearsay evidence in violation of the Confrontation Clause when the prosecutor asked McCaslin during cross-examination, “;Are you aware that [A.D.'s] friend said—you would not be aware because it's not in the police reports that she said she would never—she never would have had sex with you?;” See 291 Kan. at 704–710. The court found that McCaslin's trial attorney had only objected based on “ ‘facts not in evidence,’ “ and did not make a contemporaneous objection based on either hearsay or confrontation. 291 Kan. at 707–709. The court also found that McCaslin had waived any argument regarding his objection to facts not in evidence by failing to brief or argue the issue on appeal. 291 Kan. at 09.
Our Supreme Court also addressed three allegations of prosecutorial misconduct. First, the court found that prosecutor's aforementioned question regarding A.D.'s friend constituted misconduct. 291 Kan. at 718–23. Second, the court found the prosecutor's conduct was gross and flagrant during McCaslin's cross-examination when in response to McCaslin asking the prosecutor how many bodies he had walked in on like that, the prosecutor stated, “ ‘[Y]ou've walked in on more bodies like that than I have.’ “ See 291 Kan. at 716–18. Finally, the court found the prosecutor's rebuttal remarks “comparing a burning murder victim to the lit charcoal for barbecuing meat and for roasting marshmallows to make a cookout dessert” constituted misconduct. 291 Kan. at 722–23. Our Supreme Court, however, held this latter instance of prosecutorial misconduct, even when coupled with the two instances of misconduct during McCaslin's cross-examination, were not reversible error. 291 Kan. at 723–24. Of note, Justice Johnson dissented, finding the instances of prosecutorial misconduct denied McCaslin a fair trial. 291 Kan. at 732–37. The mandate was issued on March 28, 2011.
On March 19, 2012, McCaslin filed a pro se K.S.A. 60–1507 motion with a copy of Justice Johnson's dissent attached, alleging ineffective assistance of trial counsel and prosecutorial misconduct. Specifically, McCaslin alleged his trial counsel was ineffective for failing to retain an expert witness to rebut the testimony of Dr. Deborah Johnson, the deputy coroner who had performed A.D.'s autopsy. Moreover, McCaslin reargued the three instances of prosecutorial misconduct addressed on direct appeal.
On July 18, 2012, McCaslin filed a motion to amend his K.S.A. 60–1507 motion, alleging that both trial and appellate counsel were ineffective. Relying on the McCaslin opinion, McCaslin claimed his trial counsel was ineffective for failing to lodge a contemporaneous objection based on hearsay and confrontation grounds when the prosecutor had asked McCaslin whether he was aware that A.D .'s friend had said A.D. would never have had sex with him. McCaslin also faulted his appellate counsel for failing to brief on appeal the “facts not in evidence” objection made during trial. McCaslin asserted his amended claims “relate[d] back to the original [60–1507] motion by attacking the performance of counsel, and continuing the argument that counsel was ineffective.” The State filed a response.
The district court heard arguments from counsel at a preliminary hearing on August 17, 2012. The court adopted the arguments from the State's response and found McCaslin was not entitled to relief on those issues raised in his original K.S.A. 60–1507 motion. Specifically, the court ruled: (1) McCaslin's prosecutorial misconduct claims were not properly before the court because they were allegations of trial errors rejected on direct appeal and barred by res judicata; and (2) McCaslin's claim of ineffective assistance of trial counsel lacked merit because Dr. Johnson's testimony established there was no need for rebuttal testimony, trial counsel effectively cross-examined Dr. Johnson, and any expert proffered by McCaslin to rebut Dr. Johnson's testimony would not have made a difference at trial. As to McCaslin's amended 60–1507 motion, the court ruled it would not allow the amendments because they did not relate back to the claims of ineffective assistance of counsel in the original 60–1507 motion.
The district court filed its journal entry denying McCaslin's motions on September 10, 2012. McCaslin appealed the court's judgment.
McCaslin appeals the denial of both his original and amended K.S.A. 60–1507 motions. He argues (1) the district court failed to consider whether the additional claims of ineffective assistance of counsel in his amended 60–1507 motion related back to the issues of prosecutorial misconduct raised in his original 60–1507 motion; and (2) the district court erred in denying relief for his allegations of ineffective assistance of counsel in his original 60–1507 motion without holding a full evidentiary hearing.
Because McCaslin has failed to brief the allegations of prosecutorial misconduct from his original K.S.A. 60–1507 motion and he no longer argues that his amended 60–1507 motion relates back to the ineffective assistance claims raised in the original 60–1507 motion, he has abandoned any such arguments on appeal. See State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012) (An issue not briefed by the appellant is deemed waived and abandoned).
Standard of Review.
Under Kansas law, a district court has three available options to use in resolving a K.S.A. 60–1507 motion. First, the court may conclude that the motion, files, and case records conclusively show the prisoner is entitled to no relief and summarily deny the motion. Second, the court may conclude from the motion, files, and record that a potentially substantial issue exists in which case it may hold a preliminary hearing. If the district court then determines there is no substantial issue, the district court may deny the motion. Third, the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full evidentiary hearing. Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013). The standard of review depends upon which of these options the court uses.
Here, the district court exercised the second option and held a preliminary hearing, where it then denied McCaslin's K.S.A. 60–1507 motions without a full evidentiary hearing. If a court conducts a preliminary hearing, one of two standards of review may apply, depending on the circumstances.
Both parties erroneously cite to the mixed standard of review we apply when the district court at a preliminary hearing both admits evidence and considers counsel's arguments. In that instance, the court's factual findings are reviewed to assure they are supported by substantial competent evidence and are sufficient to support its legal conclusions regarding the prisoner's right to relief under K.S .A. 60–1507(b). Those legal conclusions are subject to de novo review. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007). If, as in the case here, the court conducts a preliminary hearing and denies relief under 60–1507 based solely upon counsel's legal arguments at a nonevidentiary hearing and the court's review of the files and records of the case, an appellate court is in as good a position as the district court to consider the merits. Thus, appellate review is de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
McCaslin's Argument That His Amended K.S.A. 60–1507 Motion Related Back to His Original K.S.A. 60–1507 Motion Is Not Properly Before This Court.
Before addressing the merits of McCaslin's original K.S.A. 60–1507 motion, McCaslin's argument that his amended claims of ineffective assistance of counsel “relate back to his issue of prosecutorial misconduct” is not properly before this court.
The record supports the State's argument that McCaslin is raising this argument for the first time on appeal. In his amended K.S.A. 60–1507 motion, McCaslin specifically asserted that his amended claims related back to the claims of ineffective assistance of counsel asserted in his original 60–1507 motion. McCaslin presented the identical argument during the preliminary hearing. In fact, McCaslin concedes his failure to raise this issue below when he acknowledges the following in his brief:
“[N]either party presented any specific arguments as to why or how the additional claims related back to Mr. McCaslin's claim of prosecutorial misconduct in any written pleadings or at the preliminary hearing. Thus, the question of whether Mr. McCaslin's additional claims identified in his motion to amend his original K.S .A. 60–1507 motion related back to his claim of prosecutorial misconduct was never argued to the district court or specifically ruled upon.”
Generally, issues not raised before the district court cannot be raised on appeal. State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). McCaslin fails to argue any of the three exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal apply. These three exceptions are: (1) The newly asserted theory involves only a question of law arising out of proved or admitted facts and is finally determinative of the case, (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights, and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assigned a wrong reason for its decision. State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200,cert. denied133 S.Ct. 529 (2012). Moreover, McCaslin makes no attempt to comply with Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R. Annot. 38) and explain to this court why an issue that was not raised below should be considered for the first time on appeal. See State v. Breeden, 297 Kan. 567, Syl. ¶ 2, 304 P.3d 660 (2013) (declining to consider issue for this reason).
McCaslin has failed to properly preserve this new issue. See Johnson, 293 Kan. at 964. Since review of our decision is possible, we will address the other arguments.
The District Court Did Not Err In Denying the Original K.S.A. 60–1507 Motion.
McCaslin asserts the district court erred in denying his original allegations of ineffective assistance of trial counsel without a full evidentiary hearing “because there remained factual questions that could not be gleaned from the record and could only be answered by trial counsel.” McCaslin argues the record was devoid of any evidence of what actions trial counsel took to hire an expert to prepare for cross-examination or use at trial to rebut Dr. Johnson's testimony regarding sexual assault, the position of A.D.'s body, and blood spatter patterns.
To establish ineffective assistance of trial counsel, the defendant must establish (1) counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of all the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). To establish prejudice, the defendant must show a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different, with reasonable probability meaning a probability sufficient to undermine confidence in the outcome. Cheatham, 296 Kan. at 431.
Relying on Muffins v. State, 30 Kan.App.2d 711, 716–17, 46 P.3d 1222,rev. denied 274 Kan. 1113 (2002), McCaslin argues that “defense counsel cannot make a strategic decision against pursuing a line of investigation when he or she has not yet obtained facts upon which that decision could be made.”
Muffins was a K.S.A. 60–1507 case involving the failure to employ an expert in the defense of a child sexual abuse prosecution in which there were no visual signs of sexual abuse and no witnesses to the alleged offenses. The movant was convicted primarily on the unchallenged testimony from the victim and, to a lesser extent, a nurse. Based on these facts, our court upheld the claim of ineffective assistance of counsel because trial counsel had failed to consider hiring an expert on interviewing techniques of child sexual abuse victims, either to use at trial or in preparation of cross-examination of the State's witnesses, and had abandoned all inquiry into interview techniques. 30 Kan.App.2d at 717–18.
In making his argument, McCaslin is essentially asking us to establish a bright-line rule that failure to hire an expert to either prepare for the cross-examination of a coroner or to rebut a coroner's testimony is ineffective assistance of counsel or at a minimum entitles a movant filing aK.S.A. 60–1507 motion to a full evidentiary hearing. But a movant is entitled to a full evidentiary hearing only if the district court concludes from the motion, files, and record that a potentially substantial issue exists. Fischer, 296 Kan. at 822–23. More importantly, our court clearly limited its ruling in Mullins to the facts of the case: “Under the facts of this case, it is held: (1) Defense counsel was ineffective in failing to ever consider hiring an expert, either for use at trial or for use in preparation of cross-examination of the State's witness.” 30 Kan.App.2d 711, Syl. ¶ 3.
The facts here are clearly distinguishable from Mullins. This case did not involve allegations of child abuse in which the use of experts in such cases can often be crucial, and McCaslin was not convicted primarily on the uncorroborated testimony of a victim. Moreover, McCaslin does not point to a single line in the trial transcript to support his claims of damaging testimony by Dr. Johnson regarding sexual assault, the position of A.D.'s body, or blood-spatter patterns. More significantly, McCaslin makes no effort to explain how the use of an expert was critical to his defense or how trial counsel's cross-examination of Dr. Johnson demonstrated a lack of preparation. A brief review of Dr. Johnson's testimony is necessary.
During trial, Dr. Johnson testified that A.D.'s body sustained “a minimum of 13 stab or slash wounds” and that A.D. was still alive when set on fire. Dr. Johnson attributed A.D.'s cause of death to “multiple stab wounds associated with thermal burns and soot and smoke inhalation.” Dr. Johnson commented on the position of A.D.'s body in response to the State's question, “When you first saw the body, did you have any knowledge at all that there may be a sexual component to this situation?” Dr. Johnson responded:
“Yes. Anytime we find first a naked body but also in the spread eagle position kind of with the legs apart, that's not a usual fire position. Generally in fire all the flexor muscles are drawn up and you'll see more like a fetal position or the legs will be raised up and in this case with the legs down, it indicated the gravity was—that was the position when the fire started and that gravity was holding the body down. That's why they didn't come up because normally [the legs] would retract.”
Dr. Johnson testified she had not found any visible signs of internal sexual trauma but that victims who are unconscious or physically powerless during a sexual assault will not likely exhibit signs of an injury.
Dr. Johnson never offered expert testimony regarding blood-spatter patterns. Dr. Johnson did testify to finding blood on A.D.'s sock, but theorized that “it looks like it just ran down her leg or dripped,” or that it was possible A.D. had “bumped into blood that was already on something in the house.” Thus, there was no need for trial counsel to challenge Dr. Johnson's testimony regarding the bloody sock because it neither implicated McCaslin nor was it relevant in establishing cause of death.
The district court properly found there was no need for rebuttal testimony because Dr. Johnson did not provide an expert opinion on whether McCaslin committed a sexual assault and, more importantly, “trial counsel had inquired into the absence of such expert testimony (to demonstrate its absence to the jury).”
The record shows trial counsel effectively questioned Dr. Johnson consistent with McCaslin's primary defense of a general denial to all three charges and that he had consensual intercourse with A.D. on the day she died. During cross-examination, Dr. Johnson confirmed to the jury that she had not found any injuries to A.D.'s vagina consistent with nonconsensual intercourse and trial counsel elicited testimony that she could not rule out the alleged sexual contact was consensual. Trial counsel further undermined the State's case when Dr. Johnson conceded she could not determine who inflicted the fatal injuries despite having established A.D.'s cause of death. Unlike the facts in Mullins, trial counsel here did not “abandon” any inquiry into Dr. Johnson's testimony. See 30 Kan.App.2d at 717–18. Trial counsel was not ineffective for not consulting with an expert and exhibited reasonable professional assistance. See Harris, 288 Kan. at 416.
Accordingly, McCaslin's failure to meet the first prong of the ineffective assistance test is fatal to his claim. See Cheatham, 296 Kan. at 431. The district court correctly denied McCaslin's original K.S.A. 60–1507 motion after determining there was no substantial issue. See Fischer, 296 Kan. at 822–23.
Affirmed.