Opinion
No. 107,536.
2013-10-1
Ramon Ray McGLOTHEN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Johnson District Court; Peter V. Ruddick, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Peter V. Ruddick, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
K.S.A. 60–1507 movant Ramon McGlothen, for whom an evidentiary hearing was held, argues that he received ineffective assistance of counsel at trial. Initially, he argues that defense counsel failed to request a deposition in a related civil case of the State's key witness and that the deposition would have helped defense counsel undermine the witness' credibility. McGlothen next argues that defense counsel failed to discover a document that would have supported his theory of defense. Because we find that McGlothen was not prejudiced in either instance, we affirm the district court.
Facts
On February 1, 2002, a car stopped in the driveway of Mushtaq Ahmed (Ahmed) as he was preparing to leave for work. A white man and a black man exited the car. The white man approached Ahmed and led him inside the house. The black man followed. According to Ahmed, he did not know or recognize either man.
Ahmed's wife, Shoshanna Ahmed, and their daughter, Kiran Ahmed, were both inside the house. The black man brought Kiran Ahmed from her bedroom to the kitchen table. The white man then made a phone call to Steve Tolbert.
Tolbert operated at least two car dealerships in the Kansas City metropolitan area and had employed Ahmed for several years. In July of 2001, Tolbert loaned Ahmed $25,000 to start up a residential mortgage finance company. The two agreed to be equal partners in the company and that Ahmed would draw a salary of $5,000 per month. Ahmed, however, failed to get the business up and running. Nonetheless, he paid himself a salary which, in time, completely depleted the $25,000 lent to him.
Consequently, during the phone call, Tolbert demanded Ahmed repay the $25,000 and warned him that failure to repay the money would result in severe consequences for him and his family. Tolbert then told the white man to bring Ahmed to his car dealership in Olathe.
The lock and windshield to Ahmed's car were both frozen from a recent ice storm, however, so Ahmed and the white man fetched hot water from indoors to melt the ice. Afterward, the white man drove Ahmed's car to the car dealership while Ahmed rode as a passenger. The black man, meanwhile, drove the other car.
Ahmed was taken to a room at the car dealership and directed to sit in a chair. He sat next to the black man and in front of the white man. Within a few minutes, Tolbert and another man came into the room.
The black man proceeded to go through Ahmed's pockets and took from him a wallet, checkbook, watch, money, and perhaps other items. At about this time, the other man began to punch Ahmed. All four men threatened that Ahmed and possibly his family would be hurt or killed if he did not repay Tolbert. But because Ahmed claimed he did not have any money, Tolbert and Ahmed agreed that Ahmed would work for Tolbert at another car dealership until he repaid his debt in full. Ahmed then left the car dealership alone and, the next day, informed police about what had occurred.
As the police progressed in their investigation of the incident, they began to believe that the white man was Dennis Taylor, one of Tolbert's employees at the Olathe dealership, and that the black man was McGlothen. Consequently, James Rader, a detective for the Lenexa Police Department, called McGlothen and asked him about the incident. Rader recorded their phone conversation.
In the conversation, McGlothen confirmed he was at both crime scenes with another man, Dennis Taylor, but denied any wrongdoing. A recording of the conversation would later be admitted at trial against McGlothen and would prove to be an important piece of evidence in the State's case against him. Most notably, McGlothen admitted in the phone conversation that he had been paid $1,000 for his services and that he witnessed Taylor with a gun before the two entered the Ahmed family's home.
The State then filed a four-count complaint against McGlothen. The complaint charged McGlothen with conspiracy to commit aggravated kidnapping, aggravated kidnapping, and aggravated robbery against Ahmed; and kidnapping against Kiran Ahmed.
After the State filed these charges but before trial commenced, Tolbert filed a civil lawsuit against Ahmed to recover the $25,000. Ahmed, in turn, filed a suit against Tolbert concerning the incident on February 1, 2002. Ahmed's wife and daughter were also parties to the lawsuit.
Defense counsel drew attention to Ahmed's civil lawsuit against Tolbert in four noteworthy stages of McGlothen's criminal trial: opening argument, cross-examination of Ahmed, cross-examination of Kiran Ahmed, and closing argument.
In the opening argument, defense counsel argued that McGlothen went to Ahmed's house simply to collect a debt but, contrary to Ahmed's assertions, did not commit any criminal actions against Ahmed or his family. Defense counsel discussed in detail Ahmed's and Tolbert's failed business venture and suggested that Ahmed's financial struggles motivated him to file a lawsuit against Tolbert which, in turn, resulted in the State's charges against McGlothen.
Similarly, when cross-examining Ahmed, defense counsel immediately asked about both the Ahmed family's lawsuit against Tolbert and Ahmed's failure to launch the residential mortgage finance company.
Defense counsel also cross-examined Kiran Ahmed about the civil trial. But, unlike the cross-examination of Ahmed, the cross-examination of Kiran Ahmed concerned the extent to which she—based on her depositions in the civil lawsuit against Tolbert—was able to recall what happened on February 1, 2002.
Finally, in closing argument, defense counsel again emphasized that Ahmed's financial troubles potentially motivated his lawsuit against Tolbert which, in turn, led to the State's charges against McGlothen.
Ultimately, the jury acquitted McGlothen of the conspiracy charge but convicted him of aggravated kidnapping, aggravated battery, and criminal restraint of Kiran Ahmed, a lesser-included offense of the kidnapping charge. Accordingly, the district court sentenced McGlothen to 195 months in prison. McGlothen appealed his convictions to this court, which affirmed the district court. See State v. McGlothen, No. 91,723, 2005 WL 1500863 (Kan.App.2005) (unpublished opinion).
McGlothen then filed a pro se K.S.A. 60–1507 motion in the district court. The motion included a photocopy of a document which showed that, in 1999, Taylor sold a vehicle to a patron at the Olathe car dealership, and that Ahmed was the finance and insurance manager of the sale. According to McGlothen, this document evidences that—contrary to Ahmed's testimony at trial—he already knew Taylor before the incident on February 1,2002.
The district court held an evidentiary hearing on McGlothen's K.S .A. 60–1507 motion. Phil Crawford, who served as McGlothen's defense counsel at his trial, was the sole witness at the hearing. He testified that the theory of defense was that McGlothen was “simply an innocent participant” and did not commit the alleged offenses. Crawford testified that this strategy largely depended on undermining the credibility of the State's witnesses.
When asked about the civil lawsuit that the Ahmed family filed against Tolbert, Crawford recalled that he cross-examined Ahmed and Kiran Ahmed about the lawsuit, but he did not recall obtaining any depositions from the civil case. Crawford agreed that the depositions could have been useful if they included any prior statements that were inconsistent with Ahmed's or Kiran Ahmed's testimony at trial. As the district court later observed, however, the trial transcript demonstrated that Crawford read a deposition of Kiran Ahmed and cross-examined her about it, though the transcript did not show that Crawford obtained a transcript of Ahmed.
With respect to the document evidencing the 1999 car sale, initially Crawford believed that he confronted Ahmed at trial about whether he previously met or knew Taylor. But after reading the transcript of his cross-examination, Crawford admitted he asked no such questions. Crawford also agreed that the document would both support the theory that Ahmed left voluntarily with Taylor and McGlothen and undermine Ahmed's credibility because he testified to the contrary. Crawford could not recall if he spoke to anyone at the car dealership about whether Ahmed and Taylor knew each other.
After the evidentiary hearing, the district court issued a written order which rejected McGlothen's request for relief. This appeal followed.
Did the District Court Err by Determining McGlothen Was not Entitled to Relief Under K.S.A. 60–1507?
Standard of Review
In Lujan v. State, 270 Kan. 163, Syl. ¶ 3, 14 P.3d 424 (2000), the Kansas Supreme Court articulated the three different approaches that a district court can employ when faced with a K.S.A. 60–1507 motion:
“First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner's motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after the appointment of counsel to determine whether in fact the issues in the motion are substantial.”
See also Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009); K.S.A. 60–1507(b).
After a full evidentiary hearing, the district court must issue findings of fact and conclusions of law concerning all issues presented. Supreme Court Rule 183(j) (2012 Kan. Ct. R. Annot. 274). An appellate court reviews 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. Appellate review of the district court's ultimate conclusions of law is de novo. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10(2007).
Analysis
McGlothen claims he received ineffective assistance of trial counsel. His argument is two-fold. First, McGlothen argues that Crawford was ineffective for failing to request and review depositions of Ahmed. Second, McGlothen argues that Crawford was ineffective for failing to discover the 1999 document that evidenced that Taylor and Ahmed both worked on the same car sale. In both instances, McGlothen contends, these failures deprived him of the opportunity to further undermine Ahmed's credibility.
Ineffective assistance of counsel claims require the K.S.A. 60–1507 movant to show (1) that counsel's performance, based upon the totality of the circumstances, was so deficient that it fell below the objective standard of reasonableness guaranteed to the defendant under the Sixth Amendment to the United States Constitution, and (2) the defendant was prejudiced to the extent that there was a reasonable probability of success but for counsel's deficient performance. See Trotter, 288 Kan. at 128, 132–33.
Generally, when trial counsel makes a thorough investigation of the law and facts relevant to the realistically available options, then counsel's decision is virtually unchallengeable. See Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009). Strategic choices made after a less-than-complete investigation are reasonable to the extent that reasonable professional judgments support the limitations on investigation. 289 Kan. at 1083–84. However, 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 can be made. Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008).
Was Crawford Ineffective for Failing to Request A Deposition of Ahmed?
Neither party cites any Kansas case directly on point to the issue here. Moreover, independent research also failed to find any substantially similar cases in Kansas or in other jurisdictions.
Thus, this issue must be resolved largely on application of the facts without reference to other judicial opinions.
Perhaps the most closely related Kansas case concerns the use of depositions taken for and used in a criminal case under K.S.A. 22–3211. See State v. Uwadia, 47 Kan.App.2d 829, 279 P.3d 731 (2012) (mandate issued August 2, 2012). Conversely, the issue here is whether defense counsel was ineffective for failing to request a deposition in a related civil case in which the criminal defendant was not a party.
Although McGlothen's argument has some merit, there are questions as to whether Crawford's failure to request a deposition of Ahmed was objectively unreasonable. Moreover, this failure, even if unreasonable, unlikely prejudiced McGlothen's defense.
Crawford's failure to request a deposition of Ahmed does not appear to be objectively unreasonable. Admittedly, such a deposition could have helped Crawford exploit inconsistencies, if any, between Ahmed's testimony in his deposition and his testimony at trial. But it is unclear whether any inconsistencies even exist. Apparently, McGlothen did not request a copy of the Ahmed deposition before the evidentiary hearing, for he failed to proffer any argument before the district court-or this court-on how, specifically, the deposition would have changed the outcome of the case. Therefore, Crawford's failure to request the deposition is probably not objectively unreasonable because the deposition appears to have been insignificant to McGlothen's defense.
Moreover, even if Crawford's failure to request the deposition was objectively unreasonable, this failure did not prejudice McGlothen's defense because Crawford put forth a strong effort to undermine Ahmed's credibility. Notably, Crawford specifically questioned Ahmed on his financial struggles and failed business endeavor with Tolbert, thus suggesting to the jury Ahmed's finances led him to file a lawsuit against Tolbert, which, in turn, led to the State's charges against McGlothen. Therefore, even if Crawford had requested and received a deposition of Ahmed, McGlothen has failed to demonstrate that the deposition would have affected the outcome of the trial.
Was Crawford Ineffective for Failing to Discover the 1999 Document?
Here, McGlothen contends that Crawford should have discovered the document showing that Ahmed and Taylor worked together in 1999 on the sale of the same car. Because this document suggests that the two men knew each other, it would have suggested that Ahmed left his home with Taylor and McGlothen voluntarily rather than by coercion. Moreover, the document could have undermined Ahmed's credibility concerning whether the other alleged crimes occurred at the car dealership.
Several facts established at the evidentiary hearing lend support to McGlothen's argument. Initially, Crawford believed that he confronted Ahmed-who testified at trial that he did not know or recognize Taylor or McGlothen-about whether he previously met or knew Taylor. But after reading the transcript of his cross-examination, Crawford admitted that he asked no such questions. He also agreed that the document would both support the theory that Ahmed left voluntarily with Taylor and McGlothen and would undermine Ahmed's credibility because he testified to the contrary. Crawford, moreover, could not recall whether he spoke to anyone at the car dealership about whether Ahmed and Taylor knew each other. Therefore, these facts suggest that Crawford may have erred by failing to take efforts to discover the document, and this failure may have prejudiced McGlothen's defense.
In rebuttal, the State properly observes that there is no testimony concerning the origin or admissibility of the 1999 document, and that McGlothen never testified that he made Crawford aware of the document. Although the first point is well-taken, the second carries little merit because, presumably, McGlothen was unaware that Ahmed and Taylor worked together on a car sale.
The State, however, makes a more persuasive argument that the failure to discover the document would not have prejudiced McGlothen's defense because, in his recorded phone conversation, he admitted that he had been paid $1,000 for his services and that he witnessed Taylor with a gun before the two entered the Ahmed family's house. Therefore, even if Ahmed and Taylor knew each other, these facts nonetheless corroborate Ahmed's testimony that McGlothen was an active participant in a kidnapping. Any error here probably did not prejudice McGlothen's defense.
The district court is affirmed.