Opinion
No. 110986.
2015-03-13
Gayl NORTHCUTT, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.Michael J. Nichols, of Michael J. Nichols, P.A., of Kansas City, for appellant.Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.
Michael J. Nichols, of Michael J. Nichols, P.A., of Kansas City, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Gayl Northcutt was convicted of first-degree murder and conspiracy to commit first-degree murder following David Mason's death. Northcutt filed a petition for habeas corpus relief under K.S .A. 60–1507, arguing that both the attorney who represented him at his jury trial and the attorney who represented him on his direct appeal were ineffective. To obtain habeas relief, Northcutt has the burden to show (1) that at least one of his attorneys' work fell below minimum standards and, thus, was constitutionally deficient and (2) that the substandard work prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984); Sola–Morales v. State, 300 Kan. ––––, 335 P.3d 1162, 1169 (2014).
Northcutt raises eight claims of ineffective assistance of counsel. Seven of these are directed at his trial counsel: failure to pursue a voluntary-intoxication defense, failure to move to suppress Northcutt's statements to law enforcement or argue that the jury should not give them much weight, failure to inform Northcutt of his right to not testify at trial, failure to prepare Northcutt to testify, and failure to call an expert witness to challenge the State's expert regarding Mason's cause of death. He also argues that his appellate counsel was ineffective when she provided the Kansas Supreme Court with copies of statements to police that were very damaging to his case.
Northcutt has not shown that either attorney's work fell below minimum standards. First, for claims about his trial counsel, either the district judge made factual findings supported by evidence that are contrary to Northcutt's claim or the claims involve strategy choices that wouldn't have affected the result. Northcutt's claims that trial counsel failed to tell him about his right to remain silent and failed to prepare him to testify at trial are contrary to his attorney's testimony at the habeas hearing about his normal practices. Northcutt's claims that trial counsel should have moved to suppress his statements to law enforcement, presented arguments to mitigate the statements, and pursued a voluntary-intoxication defense do not justify setting aside the jury's verdicts because those strategies would not have been successful at trial. Northcutt's final claim regarding trial counsel—that he should have called an expert witness to challenge the State's expert—fails because substantial evidence suggests that the expert he said trial counsel should have called would not have offered testimony that was substantially different from the State's expert's testimony.
Second, for his claim about his appellate counsel, Northcutt argues that the attorney improperly provided the Supreme Court with copies of his statements to law enforcement. But had the attorney not provided copies of the statements, the Supreme Court would have been prevented from properly evaluating the merits of an issue Northcutt raised on his direct appeal—whether there was sufficient evidence to support his conviction for conspiracy to commit first-degree murder. See State v. Davis, 281 Kan. 169, 178, 130 P.3d 69 (2006); Williams v. Quarks, No. 90,013, 2003 WL 22697578, at *1 (Kan.App.2003) (unpublished opinion), rev. denied 277 Kan. 928 (2004). So there was nothing improper in providing copies of statements admitted at Northcutt's trial to replace the original lost copy and thus to allow for full appellate review of Northcutt's case.
Since Northcutt has not shown that his attorneys provided ineffective representation, we affirm the district court's judgment.
Factual and Procedural Background
In May 2007, a jury found Gayl Northcutt guilty of first-degree murder of David Mason and conspiracy to commit first-degree murder. Northcutt appealed his convictions. On the initial, direct appeal from a conviction, the appellate court looks at the evidence in the light most favorable to the State, since the jury found in the State's favor. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). Applying that standard in Northcutt's direct appeal, the Kansas Supreme Court summarized the facts of Northcutt's case in the light most favorable to the State:
“The record reveals that Mason died the night of March 15, 2006, and that Mason had spent much of that day with Northcutt. Virtually all of the evidence regarding what occurred that day came from Northcutt's two custodial interviews and his trial testimony. Although there are common themes and details in his various statements, there are also variances.
“In his first interview with police, Northcutt explained that after spending most of March 15 with Mason, he went home mid-afternoon. That evening he went to Mason's apartment, which Mason shared with Northcutt's younger brother, John. At the apartment, Mason and Northcutt ‘got into a kind of pushing, shoving argument.’ Northcutt explained he had confronted Mason about a dispute between Mason and his brother regarding rent money and because Mason owed Northcutt for some expensive camera equipment that Mason had borrowed and not returned, claiming the equipment had been stolen from him. Northcutt told Mason to ‘take care of business' and then shoved Mason. Mason fell and hit his head on a metal bed rail. Mason then stood up, slipped, fell down, and again hit his head on the bed rail. Later in the interview, Northcutt admitted that he shoved Mason both times Mason fell. After Mason fell against the bed rail the second time, Northcutt left Mason where he had fallen and walked out of the room. Northcutt returned to Mason's apartment the next day and found Mason dead.
“Police interviewed Northcutt a second time after they interviewed his brother, John. In the second interview, Northcutt implicated his brother as a participant in the fight and stated that both he and his brother went to Mason's apartment with the intent to kill Mason. In explaining the events, Northcutt told police he left his house with rope that had a ‘gear shifting knob’ attached to it. He described the knob as about the size and weight of a pool ball. After entering the apartment, Northcutt pulled Mason out of a chair, pushed him against a wall, and ‘conked’ him on the head. Mason started screaming, and John increased the volume on the television to cover the sound. The fight continued as Mason attempted to run away from Northcutt. Northcutt admitted to hitting Mason twice in the back of the head and to punching Mason in the chest.
“Another version of events was offered by Northcutt during his trial, which was separate from his brother's trial. In testifying in his own defense, Northcutt told the jury that he and Mason spent the day of March 15 together, riding in Mason's car, going to a lake, and getting drunk. Sometime during their outing, Mason fell off a boat dock and cut his arm, and Northcutt helped him put a bandage on it. They returned to Mason's apartment around 3 p.m. so Mason could go to the bank and get $500 he owed to Northcutt. When they arrived at the apartment, Mason went inside, and Northcutt walked three blocks to his mother's house.
“Defense counsel asked Northcutt about the problems between Mason and Northcutt and between Mason and John. Northcutt testified that there were issues between John and Mason concerning rent and utilities. As for Northcutt's situation, he testified that in addition to loaning money to Mason, he had loaned his expensive camera equipment to Mason around 1986 or 1987, and Mason had told him it had been stolen. Northcutt estimated the value of the equipment as around $30,000. On March 15, John called Northcutt and informed Northcutt that Mason was using Northcutt's supposedly-stolen camera. Northcutt testified that he told his brother that if Mason has ‘got my camera I wanted to get it back, and if he's taking pictures of me, I said I'm going to kick his butt .’ The brothers also talked about the disagreement between Mason and John regarding rent and utility payments. Northcutt testified:
“ ‘I told John, I said well, I would confront [Mason] about it, but I said that's really none of my concern, that's between you and him. John wanted to move out and I said well, you can't move over here.... I'll let you park your bags over here if you want, but as far as that, I said I'll confront [Mason] about certain issues, you know, and—if you want, you know, because John's kind of scared to talk to him.’
“When Northcutt made this offer, John reported that Mason was not at the apartment. Northcutt told John to call him when Mason returned, which John did a short time later. Northcutt immediately went over to Mason's apartment.
“Northcutt rode his bicycle and brought with him a climber's ‘impelling rope’ that he routinely used to suspend his bicycle in trees to prevent it from getting stolen. This impelling rope, according to Northcutt, was about 18 inches long, had a clip, and had a gearshift knob on one end for weight. The impelling rope was attached to a longer rope that was about 35 feet long. When he arrived at Mason's residence, he discovered the branches on the trees were too tall to reach, so he could not hang his bicycle. He put the bicycle under the back porch and carried the impelling rope inside.
“Northcutt testified that he came up behind Mason, who was sitting at the computer, and ‘kind of kicked him in the butt’ and asked if he had his camera. At that point, Mason jumped up, bringing some computer cords with him. The two men got ‘tangled up’ in the cords. Northcutt said his impelling rope got wrapped around Mason's hand, so he tried to unwrap it. But, according to Northcutt, Mason was ‘half drunk’ and kept pulling at the impelling rope at the same time Northcutt was working on it, which caused the heavy ball to keep hitting both of them. They got untangled, but Mason started ‘yelling and screaming’ because the bandage ripped off his arm in the struggle and his cut was bleeding. At that point, John came into the room and turned up the volume on the television.
“The arguing continued, and Northcutt tried to ‘chase them around’ the apartment in an attempt to bandage Mason's arm. Eventually, Mason sat at the kitchen table but then ran to his bedroom. Northcutt followed and when he opened Mason's bedroom door, Mason pulled Northcutt's hand. Their hands slipped apart, and Mason fell backwards, hitting his head on the bed railing. According to Northcutt, Mason's head was bleeding, so Northcutt told him to sit while Northcutt got a first aid kit. Mason tried to get up but fell again, hitting his head on the bed's footboard. Mason got on the bed, saying, ‘I just want rest.’ At that point, Northcutt left the apartment.
“Northcutt testified that he returned to Mason's apartment the next day. John, who had spent the night at his girlfriend's house, arrived at the same time. The two went inside and found Mason dead. He was lying face down in the living room. Northcutt told the jury that he did not know what happened but thought people would think ‘I done something wrong’ because of his fight with Mason the previous night. A couple of days later, Northcutt told John ‘we're going to have to do something’ about Mason. They used some plastic and a moving dolly to transport Mason to the bedroom floor. Sometime later, Northcutt decided to bury Mason behind their mother's house and leave town.
“When asked by defense counsel if he intended to kill Mason, Northcutt testified, ‘No, I did not.’ He also denied conspiring with John to kill Mason and indicated that he did not know how Mason died.
“Several other witnesses testified during the trial. Although most of this testimony relates to matters that are not at issue on appeal, some additional points are significant to our discussion, including police testimony that there was a large blood stain on the bedroom floor and a forensic pathologist's testimony regarding autopsy results. The pathologist testified he could not determine the cause of death because of the level of decomposition resulting from the body being wrapped in plastic for nearly a month before police uncovered the grave. Despite the decomposition, the pathologist could discern four head lacerations that were consistent with blows by a pool ball-sized object. These injuries by themselves were not necessarily fatal but could have been part of the ‘mechanism of death.’
“An additional witness' testimony provides circumstantial evidence relevant to our consideration, as will be more fully discussed. That witness—a neighbor who lived in the upstairs portion of the duplex—testified that she met John and Northcutt on the sidewalk and, about 10 minutes after entering her apartment, heard a loud argument coming from downstairs. She recognized the voices of John, Mason, and one or two others. She heard Mason tell John that he was going to kick him out of the apartment because John was not helping pay the rent. Then, the television downstairs got very loud, and a short time later she heard the slam of a door. From her apartment window she saw John driving away in Mason's car, screeching the tires as he left the driveway. This was unusual because Mason did not let others drive his car. The neighbor testified that this was the last time she saw Mason's car at the apartment.” State v. Northcutt, 290 Kan. 224, 226–30, 224 P.3d 564 (2010).
In December 2010, Northcutt filed a pro se motion for habeas relief under K.S.A. 60–1507, arguing that both his trial and appellate counsel had been ineffective. Northcutt later acquired an attorney, who filed an amended motion that alleged his trial counsel had been ineffective in seven ways:
• failing to move to suppress statements Northcutt made to law enforcement on the basis that Northcutt was intoxicated and could not have knowingly waived his right to remain silent;
• failing to move to suppress statements Northcutt made to law enforcement on the basis that he waived his right to remain silent because he was promised leniency by law enforcement;
• failing to argue to the jury that the statements Northcutt made to law enforcement should not be given much weight because Northcutt had been intoxicated when he made them;
• failing to pursue a voluntary-intoxication defense;
• failing to tell Northcutt about his right to remain silent and not testify at trial;
• failing to prepare Northcutt to testify at trial; and
• failing to call an expert witness to challenge the State's expert regarding Mason's cause of death.
It also alleged that appellate counsel was ineffective because she provide the Kansas Supreme Court with copies of incriminating statements Northcutt made to law-enforcement officers that were missing from the record on appeal.
In November 2013, Judge Robert Burns, who presided at Northcutt's criminal trial, conducted an evidentiary hearing on the motion for habeas relief. Northcutt and his trial attorney, Bill Dunn, both testified. After Northcutt presented his case, the State moved to dismiss the petition, arguing that Northcutt had not proven the allegations set out in his motion. The district court dismissed the petition, holding that trial counsel's performance was not constitutionally deficient and that even if it had been, his attorney's work did not prejudice his defense. The district court did not address appellate counsel's performance.
Northcutt has appealed to this court.
Analysis
I. Northcutt's Trial Counsel Was Not Constitutionally Ineffective
We begin with Northcutt's arguments that Dunn's representation at trial fell below minimum standards. To obtain habeas relief, Northcutt has the burden to show two things set out in Strickland v. Washington, 466 U.S. at 687:(1) that his attorney's work was below minimum standards and, thus, was constitutionally deficient; and (2) that his attorney's substandard work prejudiced his defense. Sola–Morales, 335 P.3d at 1169. Courts often refer to these two parts of the Strickland test as the “performance prong” and the “prejudice prong.” Mattox v. State, 293 Kan. 723, 726, 267 P.3d 746 (2011).The benchmark for judging Northcutt's claim is whether his attorney's conduct “ “ ‘so undermined the proper functioning of the adversarial process' “ “ that the district court could not rely on his trial “ “having produced a just result .” “ Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012).
When the district court has conducted an evidentiary hearing as it did here, we review its factual findings to see whether they are supported by substantial evidence; if they are, we must accept them. Miller v. State, 298 Kan. 921, 928, 318 P.3d 155 (2014). Substantial evidence is enough legal and relevant evidence that a reasonable person could accept it as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). We do not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. Flynn v. State, 281 Kan. 1154, 1163, 136 P.3d 909 (2006). After accepting the district court's factual findings that are supported by substantial evidence, we then must determine whether the defendant has met the two-part showing required under Strickland. That determination presents a legal issue that we must review independently, without any required deference to the district court. Miller, 298 Kan. at 928; State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).
When a court considers the performance prong of the Strickland test, it should not view the attorney's performance through the corrective lens of hindsight. Rowland v. State, 289 Kan. 1076, 1086, 219 P.3d 1212 (2009). Instead, we presume that the attorney's performance fell within the wide range of reasonable professional assistance and consider the entire range of possible reasons the attorney might have made the decisions that he or she did. See Cullen v. Pinholster, 563 U.S. ––––, 131 S.Ct. 1388, 1407, 179 L.Ed.2d 557 (2011); State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). The test is not what the best or even a good attorney would have done but whether some reasonable attorney could have acted, under the circumstances, as the defense attorney acted at trial. Hardwick v. Benton, 318 Fed. Appx. 844, 846 (11th Cir.2009).
Many ineffective-assistance-of-counsel claims rest on whether counsel's decisions were made in pursuit of some reasonable defense strategy: An attorney's strategic decisions are essentially not challengeable if the attorney made an informed decision based on a thorough investigation of the facts and the applicable law. State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318 (2013); Edgar, 294 Kan. at 839; Thompson v. State, 293 Kan. 704, 716, 270 P.3d 1089 (2011). Even so, the failure to complete a thorough investigation is a ground for establishing ineffective assistance of counsel. Shumway v. State, 48 Kan.App.2d 490, 512, 293 P.3d 772, rev. denied 298 Kan. –––– (October 1, 2013); McHenry v. State, 39 Kan.App.2d 117, 123, 177 P.3d 981 (2008); State v. James, 31 Kan.App.2d 548, 553–55, 67 P.3d 857, rev. denied 276 Kan. 972 (2003). The attorney's strategy itself must also be reasonable. In re Care & Treatment of Ontiberos, 295 Kan. 10, 33, 287 P.3d 855 (2012); Wilson v. State, 51 Kan.App.2d ––––, 340 P.3d 1213, 1223–24 (2014), petition for rev. filed December 30, 2014.
If the defendant does not satisfy the performance prong of the Strickland test, there is no need to proceed to the second step and analyze the prejudice prong. See State v. Bricker, 292 Kan. 239, 250, 252 P.3d 118 (2011). When a court does consider the prejudice prong, it determines whether the defendant has shown a reasonable probability that the result of the trial would have been different but for the defense attorney's inadequate work. Miller, 298 Kan. at 934. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” 298 Kan. at 934.
On appeal, Northcutt raises the same claims that he raised in his amended motion before the district court. Because just one such claim would justify relief if Northcutt meets both prongs of the Strickland test, we consider each of his claims in turn. A. Failure to Move to Suppress Statements Northcutt Made to the Police on the Basis That Northcutt Was Intoxicated When He Made Them
Northcutt's first claim is that Dunn should have filed a motion to suppress Northcutt's statements to police based on the fact that he was intoxicated when he made the statements. At the hearing on his habeas petition, Northcutt indicated that he was intoxicated when the police interviewed him about Mason's death. He told the district court that he had been drinking “quite a bit” that day, had consumed a beer with dinner, and had finished a six-pack of beer (possibly sharing it with others) before the police interviewed him.
If Dunn had filed the motion to suppress, the State would have needed to show the district court that Northcutt's statements were voluntary. State v. Bridges, 297 Kan. 989, 1004, 306 P.3d 244 (2013). In determining whether a defendant's statements to law enforcement were voluntary, the district court usually looks at “the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interview; (3) the accused's ability to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the officer's fairness in conducting the interview; and (6) the accused's fluency with the English language.” State v. Gibson, 299 Kan. 207, 214, 322 P.3d 389 (2014). The ultimate issue is whether the defendant's statements reflect a free and independent will. See State v. Gilliland, 294 Kan. 519, 529, 276 P.3d 165 (2012).
The fact that Northcutt had been drinking does not itself prove his statements were involuntary. See Gilliland, 294 Kan. at 529. But Northcutt argues that his mental condition was seriously impaired by the alcohol he consumed before speaking with the police.
The district court found as a factual matter that Northcutt was not intoxicated when he spoke to police and that his statement about drinking a six-pack of beer before the interview was not credible. The district court relied on Officer Curtis Nicholson's testimony from a hearing held to determine whether Northcutt's statements to police would be admitted at trial—often called a Jackson v. Denno hearing by attorneys and courts. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Officer Nicholson said that Northcutt had told him he had consumed only a beer or two before he spoke with the police. Officer Nicholson's testimony is substantial evidence to support the district court's finding that Northcutt was not intoxicated when he spoke with police, as is the fact that Northcutt was able to give details about the altercation with Mason in his police interviews. Northcutt, 290 Kan. at 227; see State v. Cribbs, 29 Kan.App.2d 919, 927, 34 P.3d 76 (2001) (finding that a defendant's confession providing details “that would have escaped a person made senseless by intoxicants” was voluntary).
Northcutt notes that at the Denno hearing Dunn did not ask Officer Nicholson whether the one or two beers Northcutt consumed impaired his mental faculties. But there is no evidence here that one or two beers would have so impaired his mental faculties as to make his statement involuntary. Accordingly, we find that Dunn's failure to file a motion to suppress based on intoxication was not ineffective under the performance prong of the Strickland test. B. Failure to Move to Suppress Statements Northcutt Made to the Police on the Basis That They Were Coerced
Northcutt next argues that his statements to law enforcement were involuntary because they were induced by promises of leniency. He contends that Dunn should have tried to suppress his statements to police based on the fact that they were coerced.
As a legal matter, the officers' fairness in conducting the interview is one factor that courts consider when determining whether statements were voluntary. Gibson, 299 Kan. at 214. Coercion by law enforcement can be mental as well as physical. State v. Garcia, 297 Kan. 182, 195, 301 P.3d 658 (2013). If statements are induced by fear or hope of benefit or leniency, they will be excluded as involuntary. 297 Kan. at 196. For a statement to be involuntary as a product of a promise of leniency, the promise must concern action to be taken by a public official; must be likely to cause the accused to make a false statement to obtain the promised benefit; and must be made by a person the accused reasonably believes has the power or authority to execute it. 297 Kan. at 196.
At the hearing on the habeas motion, Northcutt told the court that police had made a general promise of more lenient treatment if he would make a statement to them:
“[Northcutt's Habeas Attorney: D]id you ever talk to Mr. Dunn about the fact that you believed you were promised some leniency before you made your statement? Your statement to the detectives?
“[Northcutt:] I informed Mr. Dunn that the police did make that statement, yes, sir. And he said it would be very difficult to prove ... it'd b[e] my word against their word.
“[Northcutt's Habeas Attorney:] What did you tell him about that promise of leniency?
“[Northcutt:] That it would be better for me to go ahead and make a statement to the police and to show that I was acting in good faith, that they would go a lot lenient, more lenient on me. It would go a lot easier if I would go ahead and make a statement to the police.
“[Northcutt's Habeas Attorney:] Is that the extent of what was told to you?
“[Northcutt:] Yes, sir.”
As a factual matter, however, the district court found that Northcutt was not promised leniency in exchange for his statements. The district court based this finding on the written waiver of rights that Northcutt signed before his interview with the police. State v. Sharp, 289 Kan. 72, 89, 210 P.3d 590 (2009) (stating that whether law enforcement made promise of leniency is a factual finding). The waiver said that “no promises or threats have been made to me and no pressure or coercion of any kind has been used against me.” Officer Nicholson testified that Northcutt had signed the waiver before they started talking.
Northcutt argues that the district court should not have relied on the boilerplate language in the waiver of rights since some of his conversations with the police were not recorded. But we must accept the district court's factual findings if they are supported by substantial evidence, and the waiver of rights is evidence that a reasonable person could accept as being adequate to support the district court's conclusion. Miller, 298 Kan. at 928.
Perhaps more significantly, all that Northcutt has testified to is that police officers made a generalized statement that things “would go a lot easier” and that “they would go a lot [more] lenient” if he talked with the officers. But to render a defendant's statement involuntary, the officers must promise some specific action by a public official. Garcia, 297 Kan. at 196; State v. Harris, 284 Kan. 560, 579–80, 162 P.3d 28 (2007). No promise of specific action was made here. Rather, the general statements made by police here were like others that the Kansas Supreme Court has concluded were not so definite or coercive as to render a confession involuntary. See Harris, 284 Kan. at 579–80 (citing cases).
In addition, the district court had more evidence than the written waiver. The court also had Officer Nicholson's testimony at the Denno hearing that neither he nor any other member of the police department made any promises to Northcutt and that he did not discuss anything with Northcutt before the conversation about his rights. The district court clearly did not accept Northcutt's testimony as proof that any promise of leniency had been offered to Northcutt, and other evidence supported the district court's conclusion that no improper promises were made. There was not a strong basis to support a motion to suppress Northcutt's statements to police based on a claim of coercion, and Northcutt has not shown that Dunn's failure to move to suppress his statements to law enforcement on that basis was ineffective under the performance prong of the Strickland test. C. Failure to Argue to the Jury That Northcutt Was Intoxicated When He Confessed
Northcutt's next claim is that even if he was not so intoxicated that his confession was involuntary, Dunn still should have mitigated the effect of the confession by emphasizing to the jury that Northcutt was intoxicated when he confessed. He says it is common knowledge that people who are intoxicated exaggerate or make outlandish or false statements.
But courts give wide latitude to a defense attorney's choice of which arguments to emphasize during closing argument:
“[C]ounsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should ‘sharpen and clarify the issues for resolution by the trier of fact,’ [citation omitted] but which issues to sharpen and how best to clarify them are questions with many reasonable answers.” Yarborough v. Gentry, 540 U.S. 1, 5–6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003).
Dunn did not explain why he failed to argue during closing that Northcutt was intoxicated when he spoke with police. But Dunn did say that he didn't think intoxication was “a big issue” in the case and that when he was working on the case, he probably had not thought that Northcutt “was all that drunk when he gave the statement.”
It appears that Dunn strategically avoided talking about Northcutt's statements to law enforcement in light of the fact that he didn't have many strong arguments to use to attack them. The weak arguments he had would have only drawn attention to the statements, which were very damaging. In addition, of course, Officer Nicholson testified at trial that Northcutt had consumed only a beer or two before he spoke with law enforcement. As a result, the argument that alcohol made him likely to exaggerate or lie to the police was weak. If Dunn had used the argument at closing, the State could have emphasized Nicholson's testimony during its rebuttal argument, highlighting both Northcutt's incriminating statements and Nicholson's testimony that Northcutt was not intoxicated. Dunn's failure to argue that Northcutt was intoxicated when he spoke with police (and to instead focus on the holes in the State's theory on Mason's death) fell within the wide latitude allowed in deciding which strategy to use during closing argument. Dunn's failure to argue that Northcutt was intoxicated was not ineffective assistance of counsel.
Northcutt also says that the district court's finding on this issue—that his statement to police was voluntary—did not address Dunn's failure to use the intoxication to mitigate the effect of the statements. But the district court made an overall finding that Dunn's performance was not constitutionally deficient, which applied to all of Northcutt's arguments, including his claim that Dunn should have argued Northcutt was intoxicated when he spoke with police. Moreover, if Northcutt found the district court's factual findings or legal conclusions inadequate, he needed to object to them to preserve the issue for appeal. Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013) (objecting gives the trial court an opportunity to correct any findings or conclusions that are argued to be inadequate). Northcutt did not object to the district court about its conclusions of law or factual findings. D. Failure to Pursue a Voluntary–Intoxication Defense
Northcutt next contends that his attorney should have presented a voluntary-intoxication defense. Voluntary intoxication is a defense to a crime if a defendant was so intoxicated that his or her ability to form the requisite intent for the crime was impaired. State v. Hilt, 299 Kan. 176, 192–94, 322 P.3d 367 (2014). In other words, the voluntary-intoxication defense negates the intent element of specific-intent crimes:
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.” K.S.A. 21–3208(2).
In theory, a voluntary-intoxication defense can be used to defend each of the crimes Northcutt was charged with: Both first-degree murder and conspiracy to commit first-degree murder are specific-intent crimes. K.S.A. 21–3302; K.S.A. 21–3401; State v. Dominguez, 299 Kan. 567, 591–92, 328 P.3d 1094 (2014); State v. Wilson, 30 Kan.App.2d 498, 501, 43 P.3d 851, rev. denied 274 Kan. 1118 (2002); State v. Campbell, 217 Kan. 756, 770, 539 P.2d 329 (1975). Northcutt contends that Dunn should have investigated his state of mind on the day he allegedly killed Mason and then should have raised a voluntary-intoxication defense.
Some evidence at trial did indicate that Northcutt was intoxicated on the day of the alleged crime. Northcutt told the jury that he had gotten “pretty well drunk” that day and that he had been “drunk” while arguing with Mason. Mason's neighbor, who met Northcutt right before the crime allegedly occurred, also testified that Northcutt appeared “drunk or tipsy.” At the habeas hearing, Northcutt told the district court that on the day Mason died, he had consumed at least 23 beers. Northcutt indicated that he and Mason had taken a case of beer to the lake but that Northcutt had consumed nearly all of it because Mason was drinking vodka.
But Dunn told the court that he did not remember discussing the voluntary-intoxication defense with Northcutt and that he probably would have chosen not to present it because he did not consider it a viable defense here. To successfully use the defense, Dunn would have needed to show that Northcutt was intoxicated enough that his mental faculties were impaired, not just that he consumed alcohol. Hilt, 299 Kan. at 193; State v. Kidd, 293 Kan. 591, 594–95, 265 P.3d 1165 (2011); State v. Brown, 291 Kan. 646, 656–57, 244 P.3d 267 (2011). And our Supreme Court has found that when defendants can remember details about their alleged crimes, those details suggest that their mental faculties were not impaired at the time of the crime. See State v. Hernandez, 292 Kan. 598, 607, 257 P.3d 767 (2011); State v. Brown, 258 Kan. 374, 386–87, 904 P .2d 985 (1995); State v. Payton, 229 Kan. 106, 112–14, 622 P.2d 651 (1981).
For example, in State v. Gonzales, 253 Kan. 22, 24–26, 853 P.2d 644 (1993), the defendant had consumed most of 24 beers just before he allegedly stabbed someone. The Supreme Court found that despite the amount of alcohol he had consumed, his mental faculties were not impaired enough that he was incapable of forming the intent required for murder because he could recall in detail all events leading up to the stabbing and the victim's exact words earlier in the evening. Accordingly, even though the court must give a voluntary-intoxication jury instruction if that theory is supported by the evidence, the court in Gonzales held the evidence supporting the defense was so weak that the district court properly refused to give that instruction. 253 Kan. at 26. In finding that the defendant was capable of forming intent, the Supreme Court contrasted the case with State v. Gadelkarim, 247 Kan. 505, 507–09, 802 P.2d 507 (1990), where a defendant testified at trial that he did not remember what happened when he allegedly killed his girlfriend or making incriminating statements to the police the next morning when his blood-alcohol concentration was still very high.
Like the defendant in Gonzales, Northcutt was able to recall the details of the events leading up to the alleged murder. At trial, he testified about spending the day with Mason before the crime allegedly occurred—drinking at the lake, going to Cabela's for a sandwich, getting in a minor car accident, Mason falling into the river, and then walking home from Mason's house. He then described the events immediately before his altercation with Mason, explaining that he had ridden his bike back to Mason's home, had met Mason's neighbor, and had placed his bike under Mason's porch because the tree limbs were too high to use to hang his bike, as was his normal practice. Northcutt also remembered his altercation with Mason in great detail. He said that he and Mason had argued and had gotten tangled up in computer cords and the rope he usually used to hang his bike. Mason said, “Oh, God, give me a break,” and had slipped and fallen backward two times, hitting his head on the bed each time. He also said that Mason had gone to bed and had been breathing when he left Mason's house.
The fact that Northcutt provided such a detailed recollection of the events of that night months after it happened demonstrates that his mental faculties were intact that night. If Dunn had pursued the voluntary-intoxication defense, the district court would have found that the evidence at trial did not support it and would have refused to instruct the jury on it, just as the court did in Gonzales. As a result, Northcutt has not shown that Dunn's failure to pursue the defense was ineffective under the performance prong of the Strickland test. E. Failure to Inform Northcutt of His Right Not to Testify at Trial
Northcutt also claims that he and Dunn never discussed his right to remain silent at trial, so Northcutt did not have enough information to make an informed decision about whether to testify. See U.S. Const. amend V; Rule 226, Kansas Rules of Professional Conduct 1.2(a) (2014 Kan. Ct. R. Annot. 470) (“In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to ... whether the client will testify.”). At the habeas hearing, Northcutt testified that Dunn had insisted he testify at trial:
“[Northcutt's Habeas Attorney:] I think we've already addressed the fact that you did testify at your own trial; is that correct?
“[Northcutt:] Yes, sir.
“[Northcutt's Habeas Attorney:] And do you recall having any conversation with Mr. Dunn prior to trial about that decision?
“[Northcutt:] Yes, I do.... [I]t was a brief conversation. The State had just rested their case, and we—he called for a brief recess and we went into the hallway ... to converse, and Bill Dunn insisted that I had to take the stand at that time, and this was all done in the hallway outside the presence of the jury.
“[Northcutt's Habeas Attorney:] Had you ever had any conversations with him prior to trial about testifying or not testifying?
“[Northcutt:] No, sir. I never had any conversation about that whatsoever.
“[Northcutt's Habeas Attorney:] Did he ever advise you that you had the right to testify, but that you also did not have to testify?
“[Northcutt:] I was not advised of my rights in any respect. Lacking in knowledge of the law, you know, I expect Counsel to keep me informed of that.
“[Northcutt's Attorney:] Okay. Do you recall any conversations about your testimony and how that might play in your trial strategy?
“... I believe Mr. Dunn had testified that he had reasons that he thought it'd be good for you to testify, and it was part of his strategy, I guess, for lack of a better word. Do you recall having any conversations with him about that?
“[Northcutt:] He never really gave me any reasons why I was to testify. He just said that I was going to have to take the stand.
“[Northcutt's Attorney:] Okay.
“[Northcutt:] For what reasons I told him that I didn't think it was a good idea, but he kept insisting that the only evidence that was going to—that they would be able to produce would be coming from me taking the stand.”
Northcutt says that he was not aware that he did not have to testify because the trial court did not advise him of his right to remain silent either.
The trial court had no obligation to advise Northcutt of his right to remain silent. See United States v. Yono, 605 F.3d 425, 426 (6th Cir.2010); Nguyen v. Archuleta, 369 F. Appx. 889, 892–93 (10th Cir.2010); Dodge v. State, No. 101,267, 2010 WL 3731171, at *5–6 (Kan.App.2010) (unpublished opinion), rev. denied 292 Kan. 964 (2011). Some courts have cautioned that a judge's comment could have the unintended effect of swaying the defendant's decision about whether to testify. Yono, 605 F.3d at 426. But defense counsel has a duty to advise the client about whether to testify and to explain the advantages and disadvantages of doing so. Dodge, 2010 WL 3731171, at *6.
Dunn claimed he could not specifically remember informing Northcutt of his right not to testify but that it was his normal practice to do so. He said that having the jury see that Northcutt was likeable was also part of his trial strategy:
“[Northcutt's Habeas Attorney:] Do you recall any conversations that you may have had with [Northcutt] about whether he should or should not testify or about his right to testify?
“[Dunn:] I don't recall any specific conversations.
“[Northcutt's Habeas Attorney:] Do you believe that you advised him that he had a right not to testify?
“[Dunn:] It would be very contrary to my normal practice if I failed to advise him that he had a right to testify and equally a right not to testify, and that if he chose not to testify no one could force him to take the stand.
1”[Northcutt's Habeas Attorney:] Okay. Do you recall ever discussing with him as a matter of trial strategy whether or not you thought it would be a good idea for him to testify?
“[Dunn:] Again, I don't have specific recollection, but I've been trying to think about this case, and ... maybe its speculation, but I'm imagining that what we thought was this: We knew we had to get over that statement. Gayl had an explanation for that statement, as I recall, and we wanted to get that in front of a jury. I also felt, as a matter of trial tactics, and maybe it was misguided, but I'd come to know [Northcutt] and I thought [he] had a lot of kind of quirky, likeable things about himself and I felt that if the jury got to know him a little bit through testimony that it would be a good thing, so I'm sure, if [Northcutt] asked my opinion, I'd say to him, sure. I just imagine I would have said yeah, you probably ought to take the stand.”
On cross-examination, Dunn again stated that he always informs his clients that they have the right not to testify:
“[State:] [Y]ou indicated that it's your practice to discuss with a criminal defendant the fact that they have a right not to testify?
“[Dunn:] Every time.
“[State:] Okay. You believe you did it in this case?
“[Dunn:] I believe I did.
“[State:] Okay. You believe that the fact that this defendant took the stand and testified, that that was under an informed decision of his own?
“[Dunn:] I think that we—yes, I do think that.
“[State:] [I]t's not as if you force your clients to take the stand, right?
“[Dunn:] I would never force anyone to take the stand.”
The district court relied on the fact that it was Dunn's normal practice to advise his clients of their right not to testify and found as a factual matter that Dunn did advise Northcutt of this right. Dunn's testimony about his normal practices is evidence that a reasonable person could accept as being adequate to support the conclusion that Dunn advised Northcutt of his right not to testify, even if Dunn also encouraged Northcutt to testify for strategic reasons. The Eleventh Circuit reached a similar conclusion in a habeas case where the defendant argued that his trial counsel had prevented him from testifying at his trial but trial counsel testified that her ordinary practice was to advise her clients about the consequences of testifying. McGriff v. Dep't of Corrections, 338 F.3d 1231, 1237–38 (11th Cir.2003); see also Reynolds v. United States, 233 F. Appx. 904, 905 (11th Cir.2007) (unpublished opinion). Because there is substantial evidence that Dunn advised Northcutt of his right not to testify at trial, Dunn's performance in talking to Northcutt about this right to remain silent was not ineffective. F. Failure to Prepare for Northcutt's Trial Testimony
Northcutt next claims that in addition to failing to discuss his options about testifying, Dunn also failed to prepare Northcutt for his testimony at trial in two ways: (1) Dunn failed to prepare questions to ask Northcutt on direct examination that would allow him to tell his story in a coherent manner; and (2) Dunn didn't help Northcutt become comfortable presenting his story to a jury. Once again, the district court found to the contrary as a factual matter, concluding that Northcutt “had prepared for trial with Mr. Dunn” and that additional preparation would not have made a difference at trial. The court noted Dunn had indicated that he does not coach his witnesses and that telling Northcutt what to say would have been inappropriate.
Substantial evidence supports the district court's findings on this issue.
First, a review of the trial transcript shows that Dunn asked Northcutt questions at trial in a reasonable order that would have permitted him to tell his version of events in a coherent manner. Dunn started his examination by asking Northcutt about his achievements in the military then moved on to his employment history and personal interests, including duck training. He likely presented these lines of questioning for strategic reasons, to show the jury that Northcutt was quirky and likeable. Dunn then asked Northcutt about his relationship with Mason and walked Northcutt through his version of the events of the day Mason died and of the disposal of the body in chronological order. Dunn's job was to advise Northcutt about the pros and cons of testifying and to prepare him to testify if he chose to do so. But the defense attorney is not in control of whether the defendant actually testifies well or makes a good impression on the jury. See State v. Orr, 262 Kan. 312, 337–39, 940 P.2d 42 (1997).
Second, evidence supports the district court's finding that Dunn spent time preparing Northcutt to testify. At the hearing on the habeas petition, Dunn testified that while he seldom scripted or rehearsed testimony with his clients, he typically talked to them about their testimony and what they might expect on cross-examination. He stated that he would be particularly likely to do so in a high-stakes first-degree murder case like Northcutt's. Dunn also stated that in a case where the defendant had made incriminating statements to the police, he would have spent time preparing to address them.
Northcutt specifically argues that Dunn should have questioned him directly about why his testimony about Mason's death differed from what he had told the police. No one asked Dunn about this specific point at the habeas hearing, but the record on appeal shows that this decision fit with Dunn's trial strategy, which was to focus on the holes in the State's theory of Mason's death and to avoid drawing attention to Northcutt's statements to police.
In sum, there were valid strategy reasons for the questions Dunn asked, and substantial evidence supports the district court's factual conclusion that Dunn spoke with Northcutt about his testimony and prepared him for it. Accordingly, Dunn's preparation for Northcutt's testimony did not constitute ineffective performance. G. Failure to Call an Expert Witness
Northcutt's final contention that Dunn was ineffective is that Dunn failed to call an expert witness that his family had hired before trial—forensic pathologist Corrie May, M.D. Northcutt says that Dr. May's testimony would have cast doubt on the expert testimony offered by the State's witness, Dr. Erik Mitchell, the forensic pathologist who performed Mason's autopsy.
At the habeas hearing, Northcutt offered into evidence a handwritten report allegedly authored by Dr. May, but Dr. May did not testify. The court admitted the report to preserve it for the record but took issue with its authenticity because it was handwritten with numerous revisions and because a note on the top of the report—“Rec. in mail from Bill Dunn 5/22/07”—listed a date after the jury convicted Northcutt. The court stated, “I don't find any basis to base my decision in any way on what's contained [in the report].” It later found that the report reached essentially the same conclusions as Dr. Mitchell had at trial. The handwritten report is the only indication of what Dr. May might have said at trial, and neither Northcutt nor Dunn confirmed that Dr. May wrote the report.
Even if we assume that Dr. May did write the report, substantial evidence supports the district court's finding that Dr. May reached essentially the same conclusions as Dr. Mitchell. At trial, Dr. Mitchell indicated that the four lacerations on the back of Mason's head were soft-tissue injuries. He could not tell the precise mechanism of Mason's death because his body had decayed. But he thought bruising, swelling, or small areas of hemorrhaging of the brain could have been the mechanism of death. He found that the injuries were consistent with being struck on the head by a cue-ball-type object attached to a rope and that Mason's death would be consistent with those injuries.
While the report apparently written by Dr. May does not perfectly mirror Dr. Mitchell's testimony, it was consistent with his statements. The report said that a closed-head injury was a possibility and that blows that did not fracture the skull could still produce a serious brain injury not associated with heavy bleeding—such as bruising of the brain—that can cause death by brain swelling and brainstem herniation. It also stated that Northcutt's gear shift or other weapons could have produced the injuries. It said that Mason's cause of death was “related to [b]lunt trauma to [the] head” and that the manner of death was “homicide.”
The report does not clearly state how Dr. May would have cast doubt on Dr. Mitchell's testimony, and Northcutt has not adequately explained how she would have. The similar conclusions in Dr. Mitchell's trial testimony and the report are evidence that a reasonable person could accept as being adequate to support the district court's conclusion that—assuming Dr. May wrote the report—she reached essentially the same conclusions as Dr. Mitchell. Accordingly, Dunn's decision not to call her as a witness did not constitute ineffective performance under Strickland.
II. Northcutt's Appellate Counsel Was Not Constitutionally Ineffective
Northcutt also argues that his counsel on direct appeal, Meryl Carver–Allmond, was constitutionally ineffective because she provided the Kansas Supreme Court with copies of exhibits that were meant to be included in the record on appeal but had been lost. The Supreme Court described the incident as follows:
“At Northcutt's trial, audiotapes of the two custodial interviews were played to the jury. In both interviews, Northcutt admitted to beating Mason, and in the second interview he confessed that he and his brother had gone to Mason's apartment with the intent to kill Mason. Consequently, the audiotapes are important to the analysis of Northcutt's factually-based appellate arguments. Yet, when this court began its review of the case, the audiotapes of the interviews—trial exhibits 57 and 58—were not in the record on appeal.
“During oral arguments, the court questioned counsel regarding the burden of creating an adequate record on appeal. At that point, both counsel were alerted to the absence of the tape recordings from the record. In response, both counsel advised the court the exhibits had been designated for inclusion in the record on appeal through a supplemental designation, which was also not in this court's record. It was later reported to the court that the original exhibits could not be located. Northcutt then filed a ‘Motion to Order Transmission of the Record on Appeal.’ In support of the motion, Northcutt's appellate counsel stated that she had received the tapes after the appeal had been docketed, relied on the tapes in preparing Northcutt's appellate brief, and then returned the tapes to the Wyandotte County District Court Clerk's office. Although the parties' statements of facts did not significantly differ, Northcutt argued his constitutional due process and equal protection rights would be violated if this court did not have the opportunity to review the tapes.
“After the motion was filed, the Clerk of the Appellate Courts, with the cooperation of counsel, located copies of the audiotapes and a police department transcript of the recorded interviews. Based on the availability of these substitutes, this court ‘ordered [the parties] to notify this court within (10) days if there is any objection to the court's addition of the audio copies and transcripts to the record on appeal, as substitutes for the unavailable exhibits. If objection is made, the party should also address why this matter should not be remanded for a hearing regarding the unavailability of the exhibits and alternatives for preservation of a record on appeal. See Rule 3.02 (2009 Kan. Ct. R. Annot. 22); Rule 3.04 (2009 Kan. Ct. R. Annot. 26).’
“The State responded, indicating it did not object to the addition to the record. Northcutt did not file an objection. Hence, the audiotapes and transcript were submitted to the court as part of the record on appeal. As a result of this procedure and Northcutt's waiver of any objection, the record is complete, Northcutt's motion is moot, and this appeal is ready for decision.” Northcutt, 290 Kan. at 225–26.
In a letter to Northcutt, CarverAllmond explained that if the tapes were lost, he would have the burden of recreating them for the Supreme Court to consider on appeal:
“I have filed a motion asking the Supreme Court to order the Wyandotte County Clerk's Office to either produce the tapes to declare that they are lost so we can proceed without them. From my quick research, it appears that if the tapes are actually lost, we will have the burden of recreating them, which I can do from the copies I made. Then your appeal should proceed to a decision as normal.”
Northcutt contends that Carver–Allmond should not have provided the court with copies of his statements to police because they were very damaging to his case.
He apparently made the same argument to Carver–Allmond because in another letter, she explained why she had provided the court with copies of his statements:
“I felt it was better to reproduce the tapes because it is the appellant's burden to provide a record on appeal that shows there was error in the district court. Although the tapes were, obviously, very bad for your case, without them the appellate court would have been free to essentially assume that everything the State said was true. Although the murder conviction was always going to be almost impossible to overturn, I thought the tapes might help with the conspiracy conviction.”
The district court did not make any factual findings or legal conclusions regarding Carver–Allmond's decision to provide the Supreme Court with copies of Northcutt's statements. Because the parties do not dispute the facts regarding her actions and this court has unlimited review of legal conclusions, however, we have unlimited review of this issue and can still review the matter in this appeal. Miller, 298 Kan. at 928; Edgar, 296 Kan. at 519–20.
The test for ineffective appellate counsel is much the same as the test for trial counsel: the defendant must show (1) that his attorney's work was below minimum standards and, thus, was constitutionally deficient and (2) that his attorney's substandard work prejudiced his defense to the extent that there is a reasonable probability that the appeal would have been successful if not for counsel's deficient performance. Miller, 298 Kan. at 929–30; Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). When determining whether appellate counsel's conduct fell below minimum standards, this court “ “ ‘must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.’ “ “ Miller, 298 Kan. at 931.
On Northcutt's direct appeal, Carver–Allmond argued that there was insufficient evidence to support Northcutt's conviction for conspiracy to commit first-degree murder. Northcutt, 290 Kan. at 231. If she had not provided the Supreme Court with copies of Northcutt's statements to police, it would not have been able to properly evaluate his claims on appeal, particularly his sufficiency-of-the-evidence claim. See State v. Davis, 281 Kan. 169, 178, 130 P.3d 69 (2006); Williams v. Quarles, No. 90,013, 2003 WL 22697578, at *1 (Kan.App.2003) (unpublished opinion), rev. denied 277 Kan. 928 (2004). As the party claiming error, Northcutt had the burden of designating a record on appeal that showed he was prejudiced. Bridges, 297 Kan. at 1001. Without a full record of the evidence presented to the jury, the Kansas Supreme Court could have denied Northcutt's claim that the evidence wasn't sufficient to convict him on the simple basis that he hadn't provided a complete record on appeal.
To avoid that result and to allow Northcutt's claim to be considered on its merits, Carver–Allmond did her job and made sure that the record was both accurate and complete. That allowed the Kansas Supreme Court to review Northcutt's direct appeal on its merits. What Carver–Allmond did was appropriate and certainly did not constitute ineffective assistance of counsel.
In sum, Northcutt has not shown that either attorney's performance fell outside the wide range of reasonable professional assistance. We therefore affirm the district court's judgment.