Opinion
No. 110,900.
2015-01-9
Leon MITCHELL, III, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.Janine Cox, deputy appellate defender, of Kansas Appellate Defender Office, for appellant.Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Janine Cox, deputy appellate defender, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, SJ.
MEMORANDUM OPINION
PER CURIAM.
Leon Mitchell, III, appeals the district court's dismissal of his K.S.A. 60–1507 motion claiming his trial attorney was ineffective. Mitchell contends that his lawyer did not try hard enough to reach two alibi witnesses. Our review of the record reveals that his lawyer's actions were reasonable, especially given the information the counselor had at the time. We therefore affirm.
Mitchell was convicted of aggravated burglary and attempted aggravated robbery.
In 2008, a jury found Mitchell guilty of one count of aggravated burglary and one count of attempted aggravated robbery. The court sentenced Mitchell to 136 months' imprisonment for the aggravated burglary and a consecutive term of 34 months for the attempted aggravated robbery, with 24 months' postrelease supervision. Mitchell appealed, and this court affirmed his convictions and sentences in State v. Mitchell, 45 Kan.App.2d 592, 252 P.3d 586, rev. denied 293 Kan. 1111 (2011).
Mitchell filed a K.S.A. 60–1507 motion contending ineffective assistance of trial counsel, arguing that his trial attorney provided ineffective assistance of counsel because he failed to investigate witnesses “who could testify on [his] behalf and provide persuasive testimony to support claims of innocence.”
The district court took evidence on the motion, hearing testimony from both Mitchell and his trial attorney. Both witnesses agreed that Mitchell initially asserted he had an alibi defense. But Mitchell's testimony and his attorney's testimony regarding their conversations about contacting and using the two potential alibi witnesses conflicted.
Mitchell testified that he told his attorney that Lameshia Shaw, his girlfriend at the time, and Takisha Carr–Williams, his cousin, were his alibi witnesses. Mitchell maintained that he told his attorney to contact Shaw and Williams because they could provide information about his whereabouts and motive. Mitchell stated that he gave his attorney Shaw's and Williams' contact information. He also testified that he asked his attorney every time he met with him if he was going to contact Shaw or Williams, but his attorney never gave him a direct answer. Mitchell asserted that his attorney never told him whether he had been successful in contacting Shaw. Moreover, Mitchell testified that Shaw never told him whether his attorney had contacted her. Mitchell also testified that he did not know if his attorney had contacted or investigated Williams until he saw a file with information about Williams during his trial.
In contrast, Mitchell's attorney testified that he asked Mitchell about any alibi witnesses. According to the attorney, Mitchell told him to contact Shaw because she could provide an alibi for his whereabouts when the crime was committed. Mitchell then gave the attorney Shaw's cell phone number. The attorney maintained that he called Shaw's cell phone but her voice mailbox was full. The attorney said he “never was able to reach anybody at that number.” When asked if he attempted to call Shaw after the initial contact, the attorney testified, “You know, I may have, but I don't have those recorded.” He stated, however, that he told Mitchell that he was unable to contact Shaw. The attorney testified that Mitchell then told him Shaw no longer wanted to be involved in the case, and he responded by telling Mitchell he would abide by his wishes.
After that, the attorney testified that Mitchell was unable to provide him any more details about his suggested alibi. Without having any more details and being unable to contact Shaw, the attorney testified that he believed an alibi defense would be nearly impossible because of the statutory requirements of giving notice to the State and offering specific details in order to use an alibi defense. The attorney also testified that Mitchell later suggested that he was not actually with Shaw when the crime occurred.
Further, the attorney asserted that he does not believe Mitchell ever suggested Williams was an alibi witness. Additionally, the attorney testified that Mitchell never provided him with her phone number or ever specifically asked him to contact Williams.
Also, the attorney testified that Williams was important in the State's theory of the case. The attorney explained the State's theory in Mitchell's case as follows: Williams was estranged from her husband, her husband was dating Wanda Markham, Williams believed her husband had taken her drugs and money over to Markham's house, and based on this belief, Williams sent Mitchell to Markham's house to retrieve Williams' drugs and money. Mitchell's attorney also testified that he further investigated Williams. In this investigation, he obtained two court file copies. The first court file was from a domestic dispute between Williams and her estranged husband. The second court file was from a criminal charge when Williams attempted to run over Markham. The attorney also asserted that Mitchell told him Williams was extensively involved in drug trafficking. The attorney testified that after reviewing this information and discussing it at length with Mitchell, he and Mitchell agreed not to involve Williams in the case because her involvement would likely bolster the State's theory.
The attorney explained that he built Mitchell's defense on incorrect eyewitness identifications and flawed photo arrays used by the police to identify Mitchell. The attorney also testified that the police observed and apprehended another man outside Markham's home shortly after the robbery occurred.
We set forth principles that guide us.
Claims involving ineffective assistance of counsel presents mixed questions of fact and law. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013). When a trial court holds a full evidentiary hearing on a K.S.A. 60–1507 ineffective assistance of counsel claim, this court reviews the trial court's factual findings for support by substantial competent evidence and its legal conclusions based on those facts de novo. Cheatham, 296 Kan. at 430.
To establish ineffective assistance of counsel, a defendant must show:
“ “ “(1) counsel's performance was deficient, which means counsel made errors so serious that counsel's performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsel's errors were so serious they deprived the defendant of a fair trial.” “ “ 296 Kan. at 431 (quoting Robertson v. State, 288 Kan. 217, 225, 201 P.3d 691 [2009] ).
Thus, defense counsel is only ineffective when his or her efforts are objectively unreasonable when measured against prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 [1984] ). Judicial scrutiny of counsel's performance is highly deferential and this court must eliminate the distorting effects of hindsight to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective at the time. Cheatham, 296 Kan. at 431–32. To show prejudice, a defendant must submit evidence that, but for counsel's deficient performance, there was a reasonable probability that the outcome of his trial would have been different. 296 Kan. at 432. Moreover, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. 296 Kan. at 432. We examine the question concerning each witness. Takisha Williams
Mitchell has abandoned this issue. In his brief, he mentions Williams twice in his interpretation of the court's factual findings. He also uses the term “witnesses” in discussion of why he was prejudiced by his attorney's actions but never mentions Williams by name. Furthermore, Mitchell never makes an argument about why his attorney's efforts to contact Williams were unreasonable.
Issues not briefed by the appellant are deemed waived and abandoned. State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012). Moreover, raising a point incidentally without arguing the point in the brief is also deemed abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011).
While Mitchell disputes it, the attorney testified that he and Mitchell had a conversation regarding the role Williams could play in his defense and decided against involving her. The district court made a credibility determination that the attorney's testimony was more trustworthy than Mitchell's testimony. Given this information, it was reasonable for the attorney not to continue to contact Williams. Strategically, the attorney made the determination that Williams would not help Mitchell's defense, but would likely hurt it.
Even if the attorney's efforts to contact Williams were unreasonable, Mitchell does not prove that he was prejudiced by this action. Williams did not testify at the evidentiary hearing, and Mitchell did not present any evidence explaining how William's testimony could have helped at his trial. Since Mitchell does not present any evidence concerning how further contacting Williams or Williams' testimony would have changed the outcome of his trial, he cannot prove he was prejudiced by his attorney's actions.
Lameshia Shaw
Mitchell argues that his attorney provided ineffective assistance of counsel because he only contacted Shaw once. He contends that contacting a potential alibi witness only once is legally insufficient. We do not think that Mitchell's argument is supported by the record. Despite Mitchell's contention, the attorney never testified that he only attempted to contact Shaw once. Instead, the attorney testified that he may have attempted to contact Shaw more than once, but he did not record those attempts.
Mitchell's argument does not address the attorney's testimony regarding their conversations about Shaw. After the attorney informed Mitchell he could not reach Shaw by phone, the attorney testified that Mitchell told him Shaw did not want to be involved in the case anymore. The attorney also testified that Mitchell later suggested he was not with Shaw when the crime occurred.
In determining if there is substantial competent evidence to support the findings of the lower court, this court does not reweigh testimony or determine witness credibility. Instead, this court must accept as true inferences that support the trial court's findings, disregarding conflicting evidence. State v. Morton, 286 Kan. 632, 641, 186 P.3d 785 (2008).
In finding that Mitchell's K.S.A. 60–1507 motion was meritless, the district court stated:
“[The attorney] did, in fact, make sufficient efforts to contact the suggested alibi witnesses. Those efforts were to no avail. Further, there were obvious strategic reasons for making decisions as to defense and testimony. Those witnesses—those decisions were made by [the attorney] after his review of the information available to him and his consultation with the defendant—or with Mr. Mitchell.”
The district court stated it made this finding after considering the weight and credibility of the testimony. Thus, it is readily apparent that the district court made a credibility determination that the attorney's testimony about contacting the witnesses and consulting with Mitchell was more trustworthy than Mitchell's testimony. This court must therefore accept the district court's credibility determination.
Accepting the attorney's testimony as true, his actions in attempting to contact Shaw were not objectively unreasonable. After all, the attorney attempted to contact Shaw at least once. The attorney stopped attempting to contact Shaw once Mitchell told the attorney that Shaw did not want to be involved in the case. Moreover, according to the attorney, Mitchell told him he was not really with Shaw when the crime occurred. The attorney explained how it would be nearly impossible to present an alibi defense because Mitchell did not give him any information to corroborate it. He therefore formed a defense around incorrect eyewitness identifications and suggestive photo array procedures. Based on the information the attorney had at the time, his actions in trying to contact Shaw were not unreasonable when measured against the prevailing professional norms because nothing indicated that further attempts to contact Shaw or Shaw's testimony would help Mitchell's defense.
Even if the trial attorney failed to make sufficient efforts to contact Shaw, Mitchell has failed to show that sufficient efforts to contact Shaw would have produced a different result. Mitchell argues that he was prejudiced because “the witnesses might well have been able to testify that Mr. Mitchell was not at the crime scene.” At the evidentiary hearing, however, Shaw did not testify and Mitchell did not provide any evidence as to what Shaw might have testified to on his behalf. Thus, Mitchell has not demonstrated how Shaw's testimony would have changed the outcome of his trial or that he was prejudiced by his trial attorney's conduct.
We affirm the district court's dismissal of Mitchell's K.S.A. 60–1507 motion.