Opinion
110,589.
07-24-2015
Jerry D. RICE, Appellant, v. STATE of Kansas, Appellee.
Richard Ney, of Ney, Adams & Shaneyfelt, of Wichita, for appellant. Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Richard Ney, of Ney, Adams & Shaneyfelt, of Wichita, for appellant.
Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This appeal considers the claim of Jerry D. Rice that the lawyer he retained following his murder conviction was ineffective for not asserting and pursuing in Rice's direct appeal to the Kansas Supreme Court all of the various aspects in which Rice contends that his trial counsel was ineffective in the guilt and penalty phases of Rice's trial.
Rice was convicted of first-degree murder for the death of his wife, Dorlinda M. Rice (Lindy). He was sentenced to life in prison with no chance of parole for 40 years.
Stripped to the essentials necessary for the disposition of Rice's current appeal, the procedural history of the case after Rice's conviction discloses that in his direct appeal to the Kansas Supreme Court, Rice included the claim that his trial counsel had been ineffective in advising Rice not to testify on his own behalf during the guilt phase of the trial. The Supreme Court found no reversible errors in the conduct of the trial and found the evidence sufficient to support Rice's conviction, but the Supreme Court remanded the case to the district court pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), for an evidentiary hearing on Rice's ineffective assistance of trial counsel claim. Following that hearing, the Supreme Court majority affirmed Rice's conviction, concluding that Rice's trial counsel had been ineffective in advising Rice not to testify but that this improperly grounded advice was harmless because there was no reasonable probability that the outcome of the trial would have been different if Rice had taken the stand in his own defense. State v. Rice, 261 Kan. 567, 607–09, 932 P.2d 981 (1997) (Rice I ).
Rice filed a K.S.A. 60–1507 motion asserting additional claims of ineffective assistance of trial counsel. At the hearing on that motion, Rice sought to amend his motion to include claims that his counsel at the Van Cleave hearing had been ineffective. The district court denied the motion to amend, concluding that Rice did not have a constitutional right to the effective assistance of counsel at the Van Cleave hearing. Rice appealed, and this court reversed and remanded for further proceedings on Rice's claim of ineffective assistance of counsel at the Van Cleave hearing. Rice v. State, 37 Kan.App.2d 456, 465–66, 154 P.3d 537, rev. denied 284 Kan. 946 (2007) (Rice II ).
On remand, the district court again denied relief based on Rice's delay in asserting his claim of ineffective assistance of Van Cleave counsel. Rice appealed again, and again this court reversed for further consideration of Rice's claims. Rice v. State, 43 Kan.App.2d 428, 433–43, 225 P.3d 1200 (2010)(Rice III). On remand, the district court held an evidentiary hearing. The same judge who presided over Rice's jury trial presided over the hearing on Rice's K.S.A. 60–1507 motion. The hearing was held 17 years after Rice's criminal trial. At the time of the hearing Rice's trial counsel was age 78 and with an admittedly failing memory. Following that hearing the district court denied relief, and this appeal followed.
The parties are well acquainted with the facts which led to Rice's murder conviction. For others, the following will provide a brief overview of the essential facts. Other facts will be supplied as necessary when we discuss each of Rice's various claims.
Rice's conviction was based primarily on circumstantial evidence. The State contended that Rice killed Lindy and disposed of her body. Lindy's body was never found. Rice contended that not only did he not kill Lindy, but that Lindy had been seen alive and well in central Missouri and in Overland Park after the date of the alleged crime. He contended Lindy had a history of running off, and that is what she did at the time the State claimed she was murdered.
After living together for several years, Rice and Lindy were married in November 1991. Lindy had three children from prior marriages: Terrisa Hicks, an adult, and Mark (age 10 at trial) and Amanda (age 6 at trial) who lived with Lindy and Rice. The relationship between Rice and Lindy had been a stormy one, involving physical and verbal abuse of Lindy. Lindy had gone to her mother's house several times out of fear of Rice. During past angry confrontations Rice had reportedly threatened Lindy's life.
At trial, Mark and Amanda testified that on the night of September 14, 1992, Rice came home, and in the altercation that followed he severely beat Lindy. The children witnessed Rice punching Lindy in the face, kicking her in the stomach, and dragging her up the stairs by her hair. Rice told the children to stay in their rooms and not go upstairs. He told them not to tell anyone what they saw that night. The following morning, when Rice went outside, the children went upstairs and found the bathroom door blocked by a dresser. They were able to move the dresser a few inches and look inside the bathroom, where they saw their mother lying on the floor and apparently unconscious. They then hurried back downstairs before Rice returned to the house. At some point after Rice returned, he took the children to the sitter. He later came and picked up the children and returned home. When they returned home, the children went to the upstairs bathroom and found the dresser moved back into place and Lindy gone.
A few days later, Rice's girlfriend, Lela Faye Chambers, moved in with Rice. She helped take care of the children, whom she found to be nervous and frightened. The children told Chambers they were not supposed to talk about what happened to their mother. The children were eventually taken to Minnesota to live with their natural father, Mark Lyons, Sr.
Rice's home was located above some abandoned mines which were used as a landfill in the Argentine area of Kansas City. There were numerous sinkholes in the surrounding land caused by the mines. The owner of the landfill parked a bulldozer in the area. In the past, Rice had hot-wired the bulldozer for his personal use. He was seen using the bulldozer near the entrance to a mine shortly after Lindy's disappearance. The entrance to the mine was found to have been filled in at about that time. The State's theory was that Rice had disposed of Lindy's body there, though the authorities were never able to find it.
According to the State, Rice took steps to cover up the crime. A few months before her disappearance, Lindy had done extensive redecorating to the home, including interior repainting. Carpets were cleaned but not replaced because Rice said new carpets would be too expensive. Shortly after Lindy's disappearance, Rice repainted the interior of the home and replaced the carpet in the areas where the beating had occurred.
Rice presented evidence that Lindy drank heavily, had been involved in the use of illegal drugs, and in the past had disappeared for extended periods of time without her children and without warning. Lindy purportedly announced in August 1992 that she intended to leave Rice. Four defense witnesses testified to having seen Lindy in central Missouri or in Overland Park after the date of her alleged murder.
In rebuttal, the State presented the testimony of Pam Whitten to impeach the testimony of Rice's sister, Dixie Frazier. Whitten had been living off and on at Frazier's home for several months. Whitten testified she saw Frazier on the morning of September 15, 1992. According to Whitten, Frazier had just returned from Rice's home and appeared quite shaken. Frazier told Whitten that Rice had called Frazier and asked her to come to his home. When Frazier arrived, she found Rice's home to be a total wreck and a hutch had been destroyed. She found Rice sitting on the bed holding Lindy, rocking her, and telling her he was sorry. Rice told his sister that he had beaten Lindy the night before, that they had then made up and gone to bed and made love, but that later he could not awaken her. Neither Frazier nor Rice could detect any signs of life from Lindy. Frazier returned home at around 9:30 a.m. According to Whitten, Rice arrived later at about 1 p.m. to drop off the children and have Frazier look after them, apparently to provide him with time to make arrangements to clean up the house and dispose of the body.
After closing arguments the jurors deliberated for a couple of hours and then adjourned for the evening. The following morning they deliberated until about noon when they announced their guilty verdict. The court adjourned for 2 hours and then reconvened for the penalty phase of the trial at 2 p.m.
The State advised the court that its evidence in the penalty phase would consist of Rice's prior criminal record. The State had previously given notice that it intended to seek a hard 40 sentence based upon the assertion that the crime was committed in an especially atrocious, cruel, or heinous manner. Thus, the court ruled that the State's evidence and argument would be limited to that, and evidence of Rice's criminal history would not be admitted. With that, the State announced it would rest on the testimony elicited at trial and would make its closing argument on the issue of Rice's punishment based upon that testimony.
Rice's trial counsel did not introduce any evidence or call any witnesses on Rice's behalf during the penalty phase. At the conclusion of the court's instructions to the jury regarding Rice's punishment, the State made its final argument. Rice's trial counsel waived closing argument on Rice's behalf. The jury returned a verdict of life imprisonment with Rice being eligible for parole after 40 years. This was the sentence imposed by the court.
Preliminary Matters
? Available Relief
Rice contends there were numerous instances in which his trial counsel was ineffective which were never addressed at the Van Cleave hearing and in Rice's direct appeal. Rice asks us to reverse the district court and order that he be allowed a new direct appeal of his conviction. He relies on dicta in Rice III, wherein this court discussed the difference between claims of ineffective trial counsel and claims of ineffective appellate counsel. The right to a second direct appeal was not an issue for the court to decide in that case. But when the issue of a second direct appeal was before the court to decide in State v. Howard, 44 Kan.App.2d 508, Syl. ¶ 4, 238 P.3d 752 (2010), this court declared:
“Under the plain language of K.S.A. 60–1507(b), the trial court, in ruling on a K.S.A. 60–1507 motion, has the authority to vacate and set aside the judgment and discharge the prisoner, resentence the prisoner, grant a new trial, or correct the sentence. Nothing in K.S.A. 60–1507 provides the trial Court with authority to grant a second direct appeal.”
Thus, we conclude that a second direct appeal is not relief that is available to Rice if his claims of ineffective assistance of appellate counsel have merit. His relief is confined to the available alternatives set forth in the statute.
? Sufficiency of the District Court's Findings and Conclusions
As a further preliminary matter, Rice states in his appellate brief:
“The district court's ruling, which was issued more than two years after the hearing, failed to make any specific findings as to any of Petitioner's individual claims. In very general terms, the district court found that [appellate counsel's] performance was not ineffective and that Petitioner failed to show that the outcome would have been different had [appellate counsel] raised all claims of trial counsel's ineffectiveness.”
This is the full discussion on this point and as such is insufficient as a basis for now criticizing the adequacy of the district court's findings and conclusions. A point raised incidentally in a brief and not argued therein is deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). Further, the failure to support a point with pertinent authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). To the extent Rice is critical of the district court's findings and conclusions, this issue has been waived.
Besides, the district court did make a number of specific findings in its journal entry memorializing its ruling on Rice's motion. A party must object to inadequate findings of fact and conclusions of law in order to preserve an issue for appeal, thereby giving the district court an opportunity to address any alleged inadequacies. See State v. Carr, 300 Kan. 61, 65, 331 P.3d 544 (2014). We find no such objection here. In the absence of such objection, we presume the district court found all of the facts necessary to support its judgment, provided those facts are found in the record.
Finally, the requirement of explicit findings and conclusions found in Supreme Court Rule 165 (2014 Kan. Ct. R. Annot. 272) and K.S.A. 60–252 is designed to enable the appellate court to conduct a meaningful review of the appellant's claims of error. Here, we find that the district court's findings and conclusions are adequate for us to conduct a meaningful review. See Robertson v. State, 288 Kan. 217, 233, 201 P.3d 691 (2009).
? Standard of Review
In our review, we examine the district court's findings of fact to determine whether they are supported by substantial competent evidence and whether they are sufficient to support the district court's conclusions of law. We review de novo the district court's conclusions of law. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).
To demonstrate ineffective assistance of appellate counsel, Rice must
“show ‘(1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.’ “ State v. Smith, 278 Kan. 51–52, 92 P.3d 1096 (2004) (quoting Baker v. State, 243 Kan. 1, 7, 755 P.2d 493 [1988], which adapts the two-prong Strickland test for ineffective assistance of trial counsel to claims of ineffective assistance of appellate counsel).
Counsel's representation must be viewed within the context of the case as it existed at the time of the allegedly deficient representation, and the court presumes, absent a contrary showing, that counsel rendered adequate assistance and made all significant decisions concerning the representation in the exercise of reasonable professional judgment. Laymon v. State, 280 Kan. 430, 437–38, 122 P.3d 326 (2005).
Failure of appellate counsel to raise an issue on appeal, even if requested by the defendant, is not necessarily ineffective assistance of counsel. Baker v. State, 243 Kan. 1, 9–10, 755 P.2d 493 (1988).
“In an appeal from a criminal conviction, appellate counsel should carefully consider the issues, and those that are weak or without merit, as well as those which could result in nothing more than harmless error, should not be included as issues on appeal. Likewise, the fact that the defendant requests such an issue or issues to be raised does not require appellate counsel to include them. Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit.” 243 Kan. at 10.
As the Supreme Court explained in Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985) :
“(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
“(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”
Here, Rice claims his appellate counsel was ineffective in conducting the Van Cleave hearing and in pursuing Rice's appeal. This criticism is directed at appellate counsel's failure to pursue instances of claimed ineffective assistance of Rice's trial counsel. Thus, our initial focus must be on the adequacy of trial counsel's performance. If we determine that trial counsel's performance was inadequate, we then must determine whether appellate counsel had a reasonable basis for not raising the issue on appeal. We will consider Rice's claims chronologically.
Claims of Ineffective Assistance of Counsel in the Guilt Phase of the Trial
? Failure to Investigate Witnesses in Warsaw, Missouri, Who May Have Seen Lindy Alive
Rice's primary defense was that Lindy had not been murdered but simply had run off. In advance of trial, Rice's trial counsel had a memorandum that identified potential trial witnesses in Warsaw, Missouri, who could not positively identify Lindy as a person they had seen after the date of Lindy's disappearance but who could testify that Lindy looked familiar. While these witnesses were not called to testify at trial, Rice's trial counsel did present the testimony of four other witnesses who claimed to have seen Lindy alive after her disappearance. Rice's appellate counsel testified at the KS.A. 60–1507 hearing that Rice's trial counsel did not have to put on evidence that was merely cumulative in order to avoid being ineffective.
Here, the record shows that trial counsel investigated these potential witnesses. There was an effort to locate possible witnesses in and around Warsaw, Missouri, who had seen Lindy after the date of her disappearance. The search uncovered potential witnesses who would not have been particularly helpful to the defense. They could not positively identify Lindy but rather thought Lindy looked familiar. Trial counsel's investigator opined that these potential witnesses were of no value to the defense.
The witnesses who were called to testify for the defense on this issue consisted of persons who knew Lindy before her disappearance and who provided significantly more detail that would tend to support Rice's contention that Lindy was alive and well. If the jurors ultimately did not believe the testimony of the witness who did testify at trial about having seen Lindy, and they clearly did not, they hardly would have believed the vague and uncertain testimony of these other possible witnesses. Trial counsel was not ineffective in failing to call additional witnesses who were cumulative and factually weak on this issue. Had he called them, it is highly unlikely their testimony would have resulted in a more favorable verdict for Rice. Thus, appellate counsel was not ineffective in failing to raise this issue on appeal.
? Failure to Investigate Houston, Texas, Incident
This issue also relates to Rice's contention that not only did he not kill Lindy, but that Lindy was seen alive and well after the date of her disappearance. Rice contends that he was aware of a report from Houston, Texas, that a woman named Mary Rice, with the same birth date and social security number as Lindy, reported her car stolen. He contends he told trial counsel about this, and trial counsel was ineffective in not pursuing the matter.
There is a certain bootstrap element to this contention. Rice presumes, without any evidentiary support, that there actually was such a report. He has come forward with nothing that suggests that an investigation by trial counsel would have led to exculpatory evidence. Rice has the burden of coming forward with some evidence in the record that supports this claim. He has failed to do so. Further, Rice's trial counsel testified that Rice hired a separate investigator to gather information on this Texas report. Rice's trial counsel did not recall that the investigator ever came up with anything.
Rice's trial counsel presented a number of witnesses at trial who were well acquainted with Lindy and who testified to having seen Lindy after the date of her purported murder. Whether to pursue and call additional, cumulative witnesses on this issue is a matter we leave to trial counsel. Trial counsel's decision was made after his investigator had looked into the matter further. Moreover, in view of the jury's obvious rejection of testimony of multiple witnesses who were well acquainted with Lindy and who testified on this issue, it is highly unlikely this cumulative evidence, if it existed, would have resulted in a different outcome of the trial.
? Failure to Investigate the Scheduling of Mark, Jr .'s Surgery
This issue also relates to Rice's contention that Lindy simply ran away. Rice argues that the evidence discussed here counters any notion that Lindy would not have run off and left her son who was ill and in need of surgery.
Rice argues that his trial counsel should have investigated when surgery for Lindy's son, Mark, was scheduled. In his appellate brief Rice contends evidence of when surgery was scheduled would have refuted testimony of Margaret Flynn, Lindy's mother. Rice does not disclose in his brief what Flynn's testimony was or where it could be found. But he does direct us to his own testimony at the hearing where he said there was no date scheduled for the surgery before Lindy disappeared.
Lindy's son, Mark, had seen Dr. Sage before Lindy disappeared. Dr. Sage arranged for Mark to see a specialist in October or November 1992. Lindy disappeared in mid-September 1992. According to Rice, Mark's medical complaints accelerated the schedule for surgery. Rice testified: “I think his operation was probably the latter part of September, first part of October, I'm not sure.” This would have been within a few weeks after Lindy disappeared. In any event, Lindy was aware that her son was under a doctor's care when she disappeared, and she would have known that Mark was scheduled to see a specialist for his condition.
Rice testified that he talked to his appellate counsel about this. But Rice does not direct us to any testimony from his appellate counsel regarding his reason, or lack of a reason, for not raising this issue on appeal. Rice cites in his appellate brief, apparently with approval, language from the earlier opinion of our court in Rice v. State, 43 Kan.App.2d 428, 438, 225 P.3d 1200 (2010) (Rice III ):
“The movant must first establish that trial counsel was ineffective. The only additional evidence required to establish a claim of ineffective assistance of appellate counsel is to elicit testimony from the appellate attorney as to the thought processes that prompted the failure to raise the issue on appeal.”
But we are mindful of our obligation to apply an objective standard of reasonableness to counsel's performance. As noted earlier, appellate counsel must separate the wheat from the chaff in deciding which issues to raise on appeal. Effective appellate advocacy does not consist of throwing every issue against the appellate court's wall and seeing what sticks. Appellate counsel need only raise issues on appeal that have a reasonable prospect of leading to a successful outcome of the appeal. Finally, even though Rice contends he talked to appellate counsel about this issue, the failure of counsel to raise the issue on appeal is not necessarily ineffective assistance of counsel. Baker, 243 Kan. at 9–10.
Here, the lack of a specific date for Mark's surgery did not undermine Lindy's knowledge of her son's illness and the need for a specialist. Appellate counsel's failure to raise this issue on appeal was not objectively unreasonable.
? Limiting Instruction on Evidence of Marital Discord
Rice argues that his appellate counsel was ineffective for failing to raise trial counsel's failure to request a limiting instruction on the evidence of marital discord and failure to object to the district court not giving a limiting instruction on Terrisa Hicks' testimony about a letter supposedly written by Rice. The State said the letter was intended to show marital discord and the continuing relationship between Rice and Lindy as well as Rice's motive and intent.
Rice concedes that his trial counsel objected to the use of marital discord evidence before trial and requested a limiting instruction. Again at trial, Rice's counsel requested a limiting instruction when the State moved to admit the “ ‘highly prejudicial’ “ note purportedly written by Rice. Though the judge stated he would give a cautionary instruction, he later said he would not do so.
Rice asserts that, even if the letter was admissible to show motive and intent, the law at the time required a limiting instruction, and the failure to give the instruction was reversible error. Though trial counsel requested a limiting instruction, Rice asserts that counsel's failure to press the issue constituted ineffective assistance, and appellate counsel should have raised this issue on appeal.
At the K.S.A. 60–1507 hearing, appellate counsel testified that he raised the admission of repetitive evidence of marital discord on appeal but did not raise an ineffective assistance of counsel claim on this issue.
In Rice's direct appeal, appellate counsel argued that the admission of repetitive evidence of spousal abuse was reversible error. The Kansas Supreme Court disagreed, noting a long line of cases allowing evidence of previous spousal abuse to show evidence of motive and intent, to show the continuing course of conduct of the parties, or to corroborate the testimony of witnesses as to the act charged. State v. Rice, 261 Kan. 567, 583–85, 932 P.2d 981 (1997) (Rice I ). At the time of Rice's criminal trial, evidence of a discordant marital relationship was admissible independent of K .S.A. 60–455, even when the same evidence related to a material fact listed in K.S.A. 60–455. State v. Hedger, 248 Kan. 815, 819–20, 811 P.2d 1170 (1991), disapproved of by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Thus, the district court was not required to give a limiting instruction relating to this evidence at the time of Rice's trial.
Trial counsel tried to limit the amount and type of evidence of marital discord that was admitted at trial, and he requested a limiting instruction but the court declined to give one. Because trial counsel was not ineffective in this matter, appellate counsel was not ineffective for failing to raise the issue on appeal. Besides, Rice cannot show that he was prejudiced because there is no reasonable probability that the outcome of his appeal would have been any different had this issue been raised.
? Failure to Impeach Mark Sr., Rowland, and Flynn with Prior Inconsistent Statements
Rice complains that his trial counsel failed to impeach Mark Lyons, Sr., Jackie Rowland, and Margaret Flynn with prior inconsistent statements and testimony. He does not identify what these witnesses said that was subject to impeachment and where that testimony can be found in the record.
Rice contends his trial counsel should have confronted Mark with the transcript of the divorce proceedings between Mark and Lindy wherein he claims Lindy testified that Mark hit and beat her. But he does not direct us to where this testimony can be found in the extensive and voluminous record before us in this appeal. Further, he does not explain how evidence that Mark beat Lindy at some time in the past would be relevant to prove that Rice did not beat Lindy on the night in question. After all, Lindy was divorced from Mark in 1988, and her altercation with Rice was in 1992. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013).
The same can be said for the claimed impeachment materials relating to Rowland and Flynn. Rice refers us to Rowland's preliminary hearing testimony but provides us no further assistance in exactly where that testimony can be found. The conflict in Rowland's testimony apparently is her testimony at trial that Rice refused to let her see the children, and her earlier testimony that Rice allowed her to take the children for visits. Rice does not disclose where this testimony can be found. It is not our task to comb the record to verify the existence of the testimony to which Rice refers. Rice has the burden of directing us to that portion of the record that supports his contentions. Rice does not disclose the significance of any such impeachment of Rowland and how it might have affected the outcome of the trial.
Rice does not tell us what testimony from Flynn would be impeached and the significance of any such impeachment on the outcome of the trial. Once again, points incidentally raised but not argued are abandoned. 298 Kan. at 264.
? Failure to Impeach the Children
Rice argues that his appellate counsel was ineffective because he did not assert on appeal trial counsel's failure to offer the videotape statement of Lindy's son, Mark, and failure to call witnesses to rebut Mark's testimony. With respect to Lindy's daughter, Amanda, Rice complains that his appellate counsel should have raised the issue of trial counsel's failure to impeach Amanda by confronting her with her preliminary hearing testimony.
Mark's Testimony
Rice relies on State v. Ward, 31 Kan.App.2d 284, 292, 64 P.3d 972, rev. denied 276 Kan. 974 (2003), to support the proposition that “impeachment of Mark Lyons, Jr. with his prior inconsistent statements would have been completed by offering Mark's video-taped statement into evidence.” Rice also argues that his trial counsel should have called “Robbin [sic ] Jones and/or Icy Davis as rebuttal witnesses.”
Mark testified at trial that he saw a white car drive up to the house early in the morning after the altercation. The State's theory was that the white car belonged to Dixie Frazier, Rice's sister, who came to the house at her brother's request on the morning after the murder. Rice's theory was that on the morning after the altercation Lindy's friend, Robin Jones, came to the house in a dark car and picked up Lindy and drove off.
Mark had previously given a statement to police in which he referred to a dark car pulling up to the house. Also, Robin Jones gave a sworn statement to Rice's counsel indicating that Mark had told her that the car he saw that morning was dark rather than white.
Rice also argues that Icy Davis provided Rice's then-current counsel with a sworn statement in July 1993 that Mark had told her he saw the lights of a car of unknown color and “she took off and he didn't see her no more.” After a brief off-the-record discussion with Rice's counsel, Davis changed her statement to say Mark had told her the car was dark. In a brief unsworn statement given about 9 years later in March 2002, long after Rice's trial, Davis stated that Mark had asked her whether she was the one who picked up Lindy at the house that morning.
In Ward, which Rice relies on, this court expressed concern with the practice of attempting to impeach a witness without admitting evidence of the underlying act that contradicts the witness' current trial testimony. In Ward, the State was permitted to ask the defendant's wife whether she was afraid of the defendant and whether in a past incident he had pointed a gun at her head in front of her children. The witness denied that her husband had ever threatened or abused her and testified she was not afraid of him.
In its concluding remarks, and by way of dicta, the appellate court stated it was “troubled” by the State's failure to complete the impeachment of the defendant's wife with extrinsic evidence contradicting her denial that the defendant had abused or threatened her. 31 Kan.App.2d at 292.
This concern expressed in Ward was cited in In re Care & Treatment of Ontiberos, 295 Kan. 10, 38–39, 287 P.3d 855 (2012), a sexually violent predator case. There, the State asked Ontiberos on cross-examination about various instances of claimed misconduct, to which Ontiberos responded that he did not remember or that he disagreed with the premise of the question. Further, during the cross-examination of Dr. Barnett, Ontiberos' expert, the State, in an effort to show that Ontiberos had not been forthcoming to Dr. Barnett, asked whether Dr. Barnett knew about Ontiberos being in a prison fight and having fashioned a knife out of a pen while in prison. The State presented no evidence that these events had, in fact, occurred, but left the jury with the impression that they had occurred.
The Supreme Court noted that Barbara, Kansas Law and Practice, § 3:1 (5th ed.2001), “continues to support the rule that counsel admit extrinsic evidence, either by producing the document or live witness testimony, if the witness denies the impeaching fact.” 295 Kan. at 39. The court explained that the admission of extrinsic evidence following the witness' denial of a purported fact “ ‘is to insure against unfair crossexamination where the examiner may misquote or take the statement out of context.’ “ 295 Kan. at 39. In Ontiberos, “[t]hese procedures were not followed, preventing the jury from determining whether Ontiberos and Dr. Barnett's testimony was suspect. And our review of the record establishes at least one instance when the State was misstating the alleged facts—not Ontiberos.” 295 Kan. at 39.
The rule in Ward is meant to protect parties such as Rice against the State's attempt to impeach Rice's witness with unsupportable accusations. Here, Rice asserts that this rule should be applied against his own attorney. But the real issue is whether Rice's trial counsel should have introduced contradictory evidence regarding the color of the car Mark saw at the house on the morning after the altercation. According to Rice, his trial counsel should have introduced Mark's prior video statement to the police or should have called either Jones or Davis or both of them to contradict Mark's trial testimony about a white car.
In Rice's direct appeal, in discussing the effect of Rice's failure to testify on his own behalf at trial, our Supreme Court stated, “The testimony of the children was effectively cross-examined and challenged, and while Rice may have amplified the inconsistencies, much of that same evidence came in through the [Kansas City Star] news story.” Rice I, 261 Kan. at 608. In that news story, Rice told the reporter that Mark had said that his mother got into a strange car at approximately 5:30 a.m. and drove away. Further, Lela Chambers, Rice's girlfriend, testified at trial that Rice told her Lindy left at 5 a.m. in a dark car.
It is well settled that strategic and tactical decisions, including the decision on what witnesses to call, whether and how to conduct a cross-examination, what jurors to accept or strike, and what trial motions should be made, are exclusively left to the province of trial counsel after consultation with his or her client. Winter v. State, 210 Kan. 597, 602, 502 P.2d 733, reh'g denied (1972). Consultation with the client does not mean that trial counsel must ask his or her client's permission on these decisions but implies a general discussion between counsel and the client. State v. Bafford, 255 Kan. 888, 894–95, 879 P.2d 613 (1994).
Not surprisingly, the children's accounts of what happened preceding Lindy's disappearance varied in details over time. Rice's trial counsel tried several times to elicit testimony from Mark that he saw a dark car come to the house on the morning his mother disappeared, but Mark contended he saw a white car come to the house that morning when it was light outside.
In closing argument, Rice's counsel argued that “there are a lot of inconsistencies between and among the children's testimony.” He pointed out that “children become confused and are easily led.” In his cross-examination of Mark, Rice's trial counsel had established that Mark had never seen the white car before the day of his mother's disappearance and has never seen it since then. Rice's counsel argued in closing:
“[H]ow convenient for the State now to say it was a white car that showed up. If a white car shows up that has Ms. Frazier in it, why don't the kids see Aunt Dixie? She's in there three hours and they don't even know it? They know her real well. State's theory is now that it was Dixie who come in this car, and the kids don't know her. Mark said he just seen this car and it was dark—one time he said it was a dark car, and in the trial here, he said it was a white car.”
At the 60–1507 hearing, Rice's trial counsel testified that most of Mark's descriptions of the events recounted in his video interview with the police were consistent with his trial testimony. He was concerned that allowing the jury to see the video tape of Mark's police interview would have bolstered Mark's testimony and simply allowed the jury to hear yet another recounting of what happened from the State's point of view. Further, he testified that he thought Davis was a loose cannon, and he did not find her to be reliable.
With respect to not calling Robin Jones as a witness, the trial court had warned that the video interviews of the children would be admissible if defense counsel brought forth additional inconsistent statements by the children. It appears that trial counsel made the strategic decision not to address the car issue further and thereby avoid triggering the introduction of another recounting by the children of the events on the night of the attack, particularly in view of the fact that evidence was already before the jury of Mark's statement to Rice that Lindy drove off that morning in a strange car and in view of the supporting testimony of Chambers.
Rice's appellate counsel testified at the 60–1507 hearing that raising this point on appeal would not have added to the likelihood that Rice's conviction would be set aside. We agree. The decision of trial counsel not to pursue further the issue of Mark's testimony appears to have been a sound tactical decision.
We allow trial and appellate counsel considerable leeway and defer to their judgment in making such decisions on how to best present their client's case to the court and jury. In arguing Rice's case before our Supreme Court, appellate counsel made the decision to be selective in the issues raised and focus on those providing the opportunity to reverse Rice's conviction. With respect to the issues raised about Mark's testimony, we find no error by the district court in determining that appellate counsel's performance was not ineffective.
Amanda's Testimony
With respect to Amanda's testimony, Rice contends his trial counsel should have impeached Amanda's trial testimony about (1) Lindy coming to Amanda's room during the altercation, and (2) Lindy not making any sounds when Amanda observed her on the bathroom floor. Rice argues that his trial counsel was ineffective for not confronting Amanda with her preliminary hearing testimony on these points.
At the preliminary hearing Amanda testified that Lindy “came in my room and she sat down and said, ‘Come here, Amanda,’ and she started hugging me.... And then she fell asleep.” Amanda further testified that Rice then entered and “pulled [Lindy] upstairs by her hair.” At trial, Amanda testified on direct examination that Lindy was in Amanda's room when Rice came in and kicked her. When asked if Lindy ever left the room, Amanda responded that “Jerry took her upstairs ... [b]y her hair.” On cross-examination at trial, Amanda testified that her mother went to sleep “after the fight ... was done” and that she did not sleep in Amanda's room but “went upstairs in Jerry's room.”
We fail to see how impeaching Amanda with her preliminary hearing testimony on this point would have materially advanced Rice's interest. Her direct-examination testimony for the State was moderated considerably by her testimony on crossexamination. Her direct-examination testimony was consistent with her preliminary hearing testimony. Impeaching Amanda by introducing her preliminary hearing testimony would have again put before the jury a more damning set of facts. It also would have buttressed Mark's account of the events. Viewed objectively, not interjecting Amanda's preliminary hearing testimony was a sound tactical decision by counsel. Appellate counsel was not ineffective for not raising this issue on appeal.
Rice also criticized trial counsel's failure to address Amanda's preliminary hearing testimony that Lindy was snoring when she was found on the bathroom floor. In fact, Rice's counsel confronted Amanda on cross-examination with the fact that she had previously stated that Lindy was snoring when Amanda found her. Amanda conceded that she had made up that statement at the preliminary hearing but stated, “I messed up on that part because I was really confused.” She knew she had “said the wrong word” and told the prosecutor of her mistake “after [she] had testified before.”
Trial counsel did confront Amanda with her prior inconsistent statement and Amanda conceded that she had made it. Thus, Rice's appellate counsel was not ineffective in failing to raise this issue on appeal.
? Failure to Request Psychological Evaluation of Children and to Call Expert Psychologist
Rice argues that his appellate counsel was ineffective for failing to argue on appeal that trial counsel should have requested psychological examinations of Amanda and Mark and should have consulted with or presented the testimony of an expert on child impressionability and confabulation.
The Kansas Supreme Court has held that “a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination.” State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979) ; see State v. Price, 275 Kan. 78, 80, 61 P.3d 676 (2003). The Supreme Court has not formally extended the rule in Gregg to nonsex crime cases and to persons other than complaining witnesses. But in State v. Jones, 267 Kan. 627, 636–37, 984 P.2d 132 (1999), abrogated on other grounds by State v. Deal, 293 Kan. 872, 269 P.3d 1282 (2012), the Supreme Court considered the trial court's denial of a request for a psychological evaluation of witnesses in a murder case. The Supreme Court concluded that the defendant failed to provide the trial court with any compelling reason for the requested psychological evaluations, so the district court did not err in denying the defendant's request. Similarly, in State v. Cook, 281 Kan. 961, 985–86, 135 P.3d 1147 (2006), a murder case in which the defendant sought a psychological evaluation of a witness, the Supreme Court ruled that the defendant's reasons for requesting the evaluation were insufficient; thus, the trial court did not err in denying the defendant's request.
We see no reason why the rule in Jones and Cook would not apply here. Rice has failed to allege any compelling reason that would have justified the examination of these children. In the absence of a compelling reason, Rice is in no position to argue that the trial court would have ordered psychological examinations of the children if only trial counsel had asked for them. Thus, he cannot successfully contend that he was prejudiced by his trial counsel's failure to request these examinations, and appellate counsel was not ineffective for failing to raise the issue on appeal.
With respect to issues of impressionability and confabulation, Rice cites Mullins v. State, 30 Kan.App.2d 711, 716–17, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002), to support his contention that his trial counsel's failure to hire an expert on child impressionability and confabulation was ineffective assistance. Mullins is a child sex crime case. The panel of our court in Mullins was critical of the trial court's finding that “the art of defending child sexual abuse cases had ‘evolved’ and that while counsel perhaps should have attempted to secure an expert, ‘few attorneys would have done so at the time.’ “ 30 Kan.App.2d at 717. The Mullins court found no support in the record for these findings.
But in the present case, Dr. Marilyn Hutchinson testified that in the early ' 90's, law enforcement conducted most of the child witness interviews, and it was not until later that child advocacy centers came into existence and were used to interview child witnesses. Rice's trial was in 1994. An important book in the field, “A Scientific Analysis of Children's Testimony,” was not published until 1995, the year following Rice's trial. The American Psychological Association did not issue its guide for interviewing children until 1998. The reported Kansas cases suggest that the trend toward carefully structured child interviews had not yet begun in Kansas criminal trials at the time of Rice's trial.
The court in Mullins found trial counsel to have been ineffective in not considering hiring an expert. On the issue of prejudice, the court noted that the defendant had been convicted primarily on the testimony of the victim. Here, while the testimony of Mark and Amanda was important to the State's case, there was significant circumstantial evidence supporting Rice's guilt, as well as Whitten's testimony about Frazier recounting Rice's description of the crime. Moreover, Rice's trial counsel addressed the issue and appealed to the jurors' common sense by arguing in closing: “Now, this is not by way of condemning these children, it is the nature of things that children become confused and are easily led.” He noted the many times the children had been questioned about the events. He commented on the demeanor of the children when they testified and their apparent lack of emotion. He would have expected “a little emotion [to creep] in. The problem was it was a story and it was a script they had to stick to.”
Taking all of this into account, we cannot conclude that trial counsel's failure to hire a consulting child psychology expert so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. See State v. Brown, 266 Kan. 563, 577, 973 P.2d 773 (1999). Thus, Rice's appellate counsel was not ineffective for failing to raise this issue on appeal.
? Terrisa Hicks' Testimony
Hicks, Lindy's eldest daughter, testified that in the fall of 1991 Lindy came home with a bruised face after Rice had struck her at a bar. That would have been at about the time Rice and Lindy were married. Hicks testified that Lindy's face was bruised as shown in a photo introduced into evidence during the testimony of Lindy's mother, Margaret Flynn. Flynn testified the photo was taken in 1991. Rice argues that his trial counsel was ineffective in failing to introduce into evidence the wedding photographs of Lindy that show she was heavier at the time of her marriage to Rice than she was in the photograph introduced into evidence. Rice contends that this would have established that the photo was taken before he and Lindy were married.
In his brief Rice does not assert when he thinks the photo in evidence was taken, only that it was “at an earlier time, before she was married to [Rice].” Lindy divorced Mark Lyons, Sr., in 1988. Lindy and Rice lived together for several years before they married in November 1991. Flynn testified the photo was taken in 1991, the year Rice and Lindy married. Rice does not contend the photo in evidence was taken before he and Lindy began living together.
In fact, Rice's trial counsel attempted to show that Lindy's bruises were caused by her former husband, Mark Lyons, Sr. He questioned both Lyons and Flynn about this. Robin Jones, purportedly Lindy's best friend, testified that the photo appeared to have been taken in Lyons' home. Mary Collins testified that Mark, Sr., caused Lindy's black eyes and that Lindy had used this photo against him in their divorce. Delores Stuart testified that Mark, Sr., made harassing calls to Lindy, which were recorded, and that Lindy said she was going to use the black eye photo and the tapes against him if he did not stop.
Rice's trial counsel's efforts did not fall below the standard of reasonable advocacy in his efforts to impeach Hicks' testimony. He made the tactical and reasonable decision to try to impeach Hicks through other witnesses. In turn, Rice's appellate counsel was not ineffective in failing to raise this issue on appeal.
? Failure to Introduce Prenuptial Agreement into Evidence
Rice contends his trial counsel failed to introduce the prenuptial agreement between Rice and Lindy which gave Rice ownership of “ ‘all businesses acquired before and after the marriage.’ “ Rice contends this would have rebutted the testimony of Margaret Flynn and Jackie Rowland that Lindy had an interest in some bars and a lawn service.
In the five paragraphs of Rice's appellate brief devoted to this issue, he provides no explanation why failing to show that Lindy had no interest in these properties was damaging to Rice's defense. But he does refer us to testimony at the K.S.A. 60–1507 hearing where this issue was discussed. At that hearing, Rice contended that this business ownership issue was important because of the State's contention that Lindy would not have left on her own and abandoned her interests in these properties.
Flynn, Lindy's mother, testified that Lindy's “name was on two bars and on a lawn service.” She testified that Lindy was involved in their daily operation. Having her name on the business does not convey the clear indication that Lindy was the titled owner of the enterprise, and Lindy's mother was clearly not qualified to testify in any depth as to Lindy's ownership interests. In fact, Rice's trial counsel testified that Lindy did not own the bars but merely operated them and that Rice put Lindy's name on the bar licenses because Rice, a convicted felon, could not be the licensee.
Rowland, Lindy's sister, testified to Rice's violence towards Lindy during the course of the marriage. She said that Lindy would come to her parents' house after a fight but would always return to Rice.
“There was always a pattern. Whenever she would go to my mom and dad's, she would call either ranting and raving that night and screaming and yelling or else the next day [Rice] would call and leave her a list of what she should be doing the next morning.
Whether they were fighting or not, she had a set list of things that she had to do and she did it whether they—whether she was there or not.”
Rowland was asked whether the list had to do with “the businesses they owned together.” She said they did, and she identified a lawn service and three bars along with a car lot that Rice owned with his sister Dixie. Rowland did not opine about the nature or extent of Lindy's ownership interests and clearly was not qualified to do so. In fact, she lumped into her list of businesses a car lot in which Lindy had no apparent ownership interest. This was the extent of the trial testimony cited by Rice on this issue.
In our review of the 15 pages of the State's closing argument and the 7 pages of its rebuttal argument, the only reference to this issue was the following:
“[D]o you honestly believe that she would leave these kids, that she would leave them, go run off and have no contact with them, to miss their birthdays, to miss their Christmas?
Mark, Jr. was going to have surgery. She lost her father, Lindy did, in the first part of August to cancer, and she was worried that Mark, Jr. had the same type of thing, might be cancer. She's worried about that and she's going to be at the surgery and she runs off?
She's remodeling a home. I mean the circumstances don't even suggest that she was looking to leave. She was remodeling the home, she's got her businesses going, Mark, Jr.'s going to have surgery. Her oldest daughter, Terrisa, is pregnant with her first grandchild. And you heard her testify that Lindy was excited. ‘Here's my first grandchild.’ “ (Emphasis added.)
The phrase, “she's got her businesses going” is the sole reference to this issue.
Whether Lindy had a legal ownership interest in these businesses, they certainly were a source of income for her and her family while she remained with Rice. Setting aside the issue of the legality and enforceability of this particular prenuptial agreement, and whether there is any indication Lindy thought it was enforceable, the introduction of the prenuptial agreement would not have rebutted the notion that by running off Lindy was leaving behind a steady stream of income.
Rice's trial counsel was not ineffective for not seeking to introduce the prenuptial agreement into evidence, and appellate counsel was not ineffective in not raising this issue on appeal.
? Failure to Ask the Court to Question Jurors about a Spectator's Statement
During the testimony of Jackie Rowland, Lindy's sister, Rice was heard to say, “That lying bitch.” At the end of the State's direct examination, the court recessed for the day and the jurors were sent home. After the jurors left, the court admonished Rice for his outburst.
The following morning, before the jury was seated but after spectators had entered the courtroom, the prosecutor reported to the court that two assistant district attorneys sitting in the spectator's area had heard two older people commenting the previous day about Rowland's testimony. These unidentified persons had been seated on Rice's side of the spectator area and appeared to be associated with Rice.
The court noted that the spectators currently seated in the courtroom had heard the prosecutor's remarks about yesterday's incident and “[i]f it gets to be a problem, I'll take individuals aside and admonish them.” The court admonished the spectators not to discuss the case in the presence of the jurors.
According to Rice, on the morning just described his sister told him that while “she was in the hallway outside the courtroom waiting to attend the trial ... the statement was made by a male spectator, and the statement was, ‘He's guilty as hell.’ “ According to Rice, after his sister said this, Rice and his trial counsel went into the courtroom, “and the court was in session, and I believed the very first thing brought up, was Mr. Russell brought to Judge Duncan's attention that the statement [was] made when the jury was filing out after Jackie Rowland's testimony, the evening before.” That was in reference to the statement by the two elderly spectators the previous day about Rowland's testimony.
Rice claims his trial counsel should have asked the court to question the jurors about this statement about Rice being “guilty as hell.” But there is nothing to suggest that the comment, if made, was made anywhere near the jurors. According to Rice's testimony, his sister did not say it was uttered in the presence of the jurors. The purported statement was made before Rice and his counsel entered the courtroom for the day's testimony. The jury had not yet assembled in the courtroom, and there is nothing to suggest that the jurors were in the hallway outside the courtroom before the day's proceedings commenced, rather than in the jury room where jurors normally assemble for the day. Rice's trial counsel had no recollection of the incident at all.
Rice fails to direct us to any evidence to suggest that a prejudicial statement was uttered in the presence of jurors which trial counsel should have asked the court to investigate. Because there is no evidence that trial counsel was ineffective in this regard, appellate counsel was not ineffective for failing to raise the matter on appeal.
? Failure to Obtain Psychological Records
Rice asserts that appellate counsel was ineffective for failing to argue on appeal that trial counsel should have followed through on his efforts to obtain the psychological records of Drs. Vickie Nanschultz and John Helminski regarding the children, Amanda and Mark. Rice contends that these records could have shown the children were asked leading questions, and the records could have been helpful when cross-examining Dr. Helminski at trial. The State disclosed before trial that it did not intend to call Dr. Nanschultz, and she did not testify at trial.
Rice has not shown he was prejudiced by Willard Bunch's failure to obtain these records. Dr. Helminski was only allowed to testify as an expert on the issue of core versus peripheral memories. Rice claims the records could have been used in crossexamining Dr. Helminski. But trial counsel did not cross-examine Dr. Helminski. This was with the express consent of Rice because trial counsel believed allowing Dr. Helminski to testify was an error by the trial court. Trial counsel advised the court that he would not cross-examine the witness because he did not want his examination to be “curative and because I respectfully believe this testimony constitutes reversible error.”
In fact, the Kansas Supreme Court later found that the district court erred in admitting Dr. Helminski's testimony about the weight to be given to Mark's inconsistent recollections. According to the Supreme Court, this testimony was not helpful to the jury and dealt with matters that did not call for expert testimony. The Supreme Court stated that Dr. Helminski's testimony about a child's ability to “recall major events while forgetting minor ones would seem to be within the normal experience of lay jurors and, therefore, again, it should not have been permitted by the trial court.” Rice I, 261 Kan. at 590. But the Supreme Court found the error to have been harmless. 261 Kan. at 591.
Finally, with respect to Dr. Nanschultz' records, the State did not call her to testify, and her records could not have been used to cross-examine Dr. Helminski.
Rice also argues that these records could have shown that the children were not properly questioned about this incident. This contention appears to be based primarily on the testimony of Dr. Marilyn Hutchinson, who testified at the K.S.A. 60–1507 hearing. Dr. Hutchinson is a psychologist who practices in Kansas City, Missouri. Her testimony was directed at the “interviews” conducted by Dr. Helminski.
Dr. Helminski practices in St. Paul, Minnesota. He never treated Amanda. He first saw Mark a couple of months after Lindy's death when Mark moved to Minnesota to live with his father. There is no indication that the police or the prosecutor were involved in Mark seeing Dr. Helminski. Dr. Helminski testified that he visited with Mark's father at the outset to understand Mark's situation. The father told Dr. Helminski that Mark was sad because his mother had died. Dr. Helminski saw Mark for six 1–hour sessions. The sessions were interrupted due to uncertainty about who was paying for Mark's treatment. That issue was finally resolved, and the sessions continued in the month of trial.
It appears from Dr. Helminski's testimony that his sessions with Mark were for treatment and counseling and were not a forensic examination to collect evidence to determine what happened to Lindy. This fact undermines much of the testimony of Rice's expert who criticized the approach used by Dr. Helminski.
Dr. Hutchinson conceded that she was confused about Dr. Helminski's role. She acknowledged the difference between a forensic examiner and a treating therapist. “[T]he purpose of a treating therapist is to help a child deal with his or her emotions. And the purpose of a forensic evaluator is to be completely neutral and to try and establish what was true.” She assumed, apparently incorrectly, that Dr. Helminski was conducting a forensic examination when he met with Mark. Thus, she testified that she “would want to have known his experience in forensic examinations.” With respect to her testimony that the purpose of a forensic examiner is to be neutral and establish the truth, she was critical of Dr. Helminski meeting with Mark's father before interviewing Mark. Also, she noted that Dr. Helminski failed to videotape the initial interview to insure that information was not planted in the child's memory by the interviewer. Further, she criticized Dr. Helminski for not addressing with Mark the contradictions in his various statements to law enforcement.
We find nothing to suggest that any of this would properly have been part of Dr. Helminski's role in providing therapy to Mark in these counseling sessions. Thus, Dr. Hutchinson's testimony at the K.S.A. 60–1507 hearing about proper protocols and techniques for forensic interrogations provided no basis for arguing that Rice was prejudiced by his trial counsel's decision (with Rice's consent) not to cross-examine Dr. Helminski on these matters or the decision not to pursue his treatment records. From this it follows that Rice's appellate counsel was not ineffective for failing to raise these issue on appeal.
? Failure to Object to Testimony of Kansas City Star Reporter and Failure to Object to Admission of Her Newspaper Article
Rice argues that his counsel should have raised on appeal his trial counsel's failure to object, on the grounds of no proper foundation, to the testimony of Kansas City Star reporter Karen Dillon and to the admission into evidence of the February 10, 1993, newspaper article she wrote following her telephone interview of Rice.
Someone purporting to be Rice called Dillon. Rice denies that it was he. But the caller called Dillon back several times and provided her with information that was consistent with information Rice would know. Rice later testified that he did not think he told his trial counsel that he had not been the one who spoke with Dillon.
Whether an adequate evidentiary foundation was laid is a question of fact for the trial court and is largely within the trial court's discretion. City of Overland Park v. Cunningham, 253 Kan. 765, 773, 861 P.2d 1316 (1993). In State v. Williamson, 210 Kan. 501, 502 P.2d 777 (1972), the Kansas Supreme Court addressed this very issue in the context of whether the contents of a telephone call were inadmissible hearsay due to insufficient evidence establishing the identity of a caller. The Supreme Court stated:
“Communications by telephone are admissible in evidence where they are relevant to the fact or facts in issue, and admissibility is governed by the same rules of evidence concerning face-to-face conversations except the party against whom the conversations are sought to be used must ordinarily be identified. It is not necessary that the witness be able, at the time of the conversation, to identify the person with whom the conversation was had, provided subsequently identification is proved by direct or circumstantial evidence somewhere in the development of the case. The mere statement of his identity by the party calling is not in itself sufficient proof of such identity, in the absence of corroborating circumstances so as to render the conversation admissible. However, circumstances preceding or following the conversation may serve to sufficiently identify the caller. The completeness of the identification goes to the weight of the evidence rather than its admissibility, and the responsibility lies in the first instance with the district court to determine within its sound discretion whether the threshold of admissibility has been met. [Citations omitted.]” 210 Kan. at 504.
Here, the evidence showed that Dillon was a journalist working for the Kansas City Star at the time the February 10, 1993, article was written. Dillon testified that the article was a true and accurate reflection of statements made to her in conversations she had with certain people when preparing the story. She testified that she spoke to Rice by telephone, and she knew it was Rice because he identified himself as Jerry Rice and called back several times identifying himself as Jerry Rice.
The article itself attributes the following statements to Rice:
“Jerry Dale Rice, the woman's husband, said he was mystified about her disappearance.
“ ‘She left in the middle of the night,’ Rice said. ‘We passed out fliers all over town. I don't know what happened to her.’
“Rice remembers the fights, too.
“ ‘She liked to go out dancing, be with people and, of course, with that comes drinking,’ Rice said. ‘We ran the bars, and every time we got drunk we fought. I slapped her, oh, two or three times, but always after she hit me first and always when we'd been drinking .’
“ ‘But we had some really good years. It was improving all the time.’
“Rice said he had come home after working at his Armourdale bar, Risky Business.
“Rice said Stakely–Rice, who had been prescribed anti-depressants and sleeping pills to deal with her father's death, accused him of stealing her drugs.
“ ‘She threw a potted plant at me,’ he said. ‘She was really radical. I told her I didn't want to talk to her until she was rational. I went to bed.’
“When he awoke the next morning, Rice said, his wife was gone. He said her son told him he had seen Stakely–Rice get into a strange car about 5:30 a.m. and drive away.
“Rice said police have questioned him as a possible suspect in his wife's disappearance.
“ ‘We just had a verbal argument,’ he said of his wife. ‘That's all. I loved her.’
“Two days after his wife vanished, Rice reported her missing. About the same time, Rice said, his 39–year–old girlfriend moved into the house.
“On Oct. 23, Rice filed for divorce from his wife, saying they were ‘incompatible.’
“Rice said he filed for a divorce because he was angry that she did not return. People kept telling him that they had seen Stakely–Rice around town, Rice said.
“ ‘I tore one of the fliers off the wall at the bar and went down and filed,’ he said.”
Dillon's testimony that Rice identified himself to her on the phone was not, in itself, sufficient to show that he made the statements attributed to him in the article. But Dillon's testimony that Rice called her back several times circumstantially bolsters the notion that it was, in fact, Rice with whom she had spoken. Further, the article provides evidence that supports the fact that the caller was Rice. The caller spoke to Dillon about his relationship with Lindy, the events that had occurred on the night Lindy disappeared, Lindy's medication and why she was taking it, and Rice's businesses. Applying the standard in Williamson, there was sufficient foundation to admit Dillon's testimony and her article. Rice's trial counsel was not ineffective in deciding not to challenge the foundation for this testimony.
Besides, Rice makes no argument that admission of this article was in any way harmful to his defense. Quite to the contrary, the article appears to track exactly the position Rice has taken throughout these proceedings: that Lindy was not killed, she simply ran away. Rice fails to show that his trial counsel was deficient in dealing with the admission of this newspaper article. It therefore follows that his appellate counsel was not ineffective for failing to raise this issue on appeal.
? Failure to Present Evidence Concerning the Caterpillar Tractor
There was evidence that Rice hot-wired a Caterpillar tractor. According to the State's theory, he did this in order to use it in disposing Lindy's body. Lindy's mother, Margaret Flynn, testified that she had seen Rice on the bulldozer, and Rice told her he hot-wired it in order to start it. On cross-examination, Flynn stated she saw Rice do this from a distance back in about 1991, a year before Lindy's disappearance. Flynn said that in order to start the tractor, Rice went to “[s]ome kind of box in there ... it's behind that steering wheel. I don't know anything about big equipment ... it was something that he lifted up ... [i]t was behind where you drive it, the steering wheel.” Rice used the bulldozer that day to clear some property of trees.
Rice contends his trial counsel was ineffective for not confronting Flynn with the fact that the bulldozer did not have a steering wheel, and his appellate counsel was ineffective for not raising this on appeal.
We fail to see how this would have undermined Flynn's testimony on this point. The substance of Flynn's testimony was that Rice started the bulldozer and operated it. Flynn admitted she knew nothing about bulldozers. But one need not be an expert to recount the observations that the operator got on a bulldozer whose engine was not running, fiddled around with something in the driver's area, started the bulldozer, and then used it to move around some trees on the property. The fact that Flynn misdescribed the mechanism for directing the movement of the bulldozer—by a steering wheel rather than by levers that controlled movement of the tracks—was something Flynn probably would have readily conceded if questioned about it. But it would not have detracted from her testimony that Rice knew how to start and operate the bulldozer. Trial counsel was not ineffective for not pursuing this further, and appellate counsel was not ineffective for failing to raise this on appeal.
? Failure to Introduce into Evidence the Carpet from Rice's Home
Rice argues that his appellate counsel was ineffective for not arguing trial counsel's failure to introduce into evidence the carpet removed from Rice's home after it was replaced following Lindy's disappearance. Rice asserts that DNA testing of the carpet would have provided exculpatory evidence to counter the State's argument that Rice removed the carpet to get rid of blood and other evidence following the altercation with Lindy.
At the K.S.A. 60–1507 hearing, Rice's trial counsel testified that he put on evidence that Rice had remodeled the house because Lindy had done a poor job of painting and because the carpet was worn and smelly. He did this in order to rebut the State's theory that Rice had remodeled the house to cover up evidence of Lindy's murder. But trial counsel did not introduce the carpet itself because he was concerned Lindy's blood could be on the carpet. Further, it is not clear that the carpet was kept and available for DNA testing. In her sworn statement, Chambers, Rice's new girlfriend, stated there was some old carpet in a truck in front of the house, but it did not look like the carpet taken from Lindy's and Rice's bedroom.
Rice's appellate counsel testified that Rice told him that his trial counsel had not wanted to test the carpet for DNA because if Lindy's DNA was found on it, even if it got on the carpet some other way, that finding would look bad for the defense. Appellate counsel agreed with this assessment and noted that it was trial counsel who had to decide what evidence to introduce.
Neither trial counsel nor appellate counsel was ineffective regarding this issue. The concern that Lindy's blood or DNA could be found on the carpet was well-founded. Lindy lived in that house for a long time. The carpet was in her bedroom. Rice had physically abused her in the past on more than one occasion. It was virtually certain that Lindy's DNA could be found on the carpet, whether as a result of domestic violence or from some benign incident. Trial counsel was not ineffective for failing to pursue this, and appellate counsel was not ineffective for failing to raise the issue on appeal.
? Failure to Elicit Testimony from Witness Chambers
Rice claims that his trial counsel was ineffective for not eliciting testimony from Chambers about Lindy's attempt to paint the interior of the house before her disappearance. Rice asserts that Chambers, his new girlfriend, would have testified that Lindy did a poor job in that she simply painted around pictures on the walls rather than removing them. This would have explained why Rice repainted the house after Lindy's disappearance and would have mitigated the suspicion that he did so to cover up evidence of a crime.
But Chambers' testimony on this point would have been cumulative. The house painter, William Schaal, testified that when he painted the house after Lindy's disappearance the pictures on all the walls had previously been painted around. Robin Jones testified that she had seen evidence that the pictures on the walls had been painted around. Mary Collins testified she noticed that “pictures had been painted around because I had to take them down for Schaal to paint, and that's when I noticed it.”
Trial counsel's decision not to further repeat this testimony through Chambers was not below the standard of reasonable advocacy on Rice's behalf. Appellate counsel was not ineffective for failing to raise this issue on appeal.
? Failure to Investigate Defense Witness Carl Berryman Before Calling Him as a Defense Witness
Rice argues that his trial counsel was ineffective in failing to investigate defense witness Carl Berryman's employment records concerning Lindy. Berryman testified for the defense that Lindy had worked for him as a dancer in his club after the date of Lindy's disappearance. According to Berryman, Lindy had used an assumed name, Cindy Brusso, and worked for him as a dancer after the date that Lindy disappeared from Rice's home. After Berryman testified, the State called the actual Cindy Brusso as a rebuttal witness. Brusso testified that it was she who worked for Berryman. Rice contends this failure to properly investigate Berryman's anticipated testimony undermined Rice's theory that Lindy was still alive.
Rice relies on Ingle v. State, 348 S.C. 467, 560 S.E.2d 401 (2002). In Ingle, the defense against the claim that the defendant had sex with his girlfriend's daughter was that the semen found on the daughter's shorts was from having sat on her mother's bed where defendant and the mother had sex earlier. Defense counsel called the mother to testify without first interviewing her. The mother testified that she did not have sex with the defendant, thereby completely undermining the defendant's defense.
In Ingle, the witness was not interviewed at all before she testified. But here, trial counsel's investigator interviewed Berryman and prepared a memo relating to Berryman's testimony, which trial counsel read before calling Berryman to testify. Further, the mother in Ingle was the only witness able to testify to this defense. Here, Berryman was only one of several witnesses who testified to having seen Lindy alive and well after her disappearance. With all the other evidence relating to Rice's defense that Lindy simply ran off, it is hard to imagine that if Berryman had not been called as a witness the outcome of the trial would have been different.
Neither trial counsel nor appellate counsel was ineffective in dealing with this issue.
? Failure to Call Dennis Parker
To analyze this claim, we must first consider the trial testimony of Sami Stem, who testified in Rice's defense, and the testimony of Terry Brown, a rebuttal witness for the State. Stem testified that she had seen Lindy in a bar in Booneville, Missouri, long after Lindy's disappearance. During the State's cross-examination, Stem admitted that Terry Brown was her former boyfriend. The prosecutor asked:
“Q. Ms. Stem, isn't it true you're friends with Dixie Fra[z]ier?
“A. No, sir, that's not true....
“Q. Do you know a Terry Brown?
“A. Yes, I do.
“Q. Was that your boyfriend?
“A. Yes, he was.
“Q. And isn't it true that you told [Brown] that you had a video tape of you and Lindy in Booneville?
“A. No, sir, that's not correct.
“Q. Isn't it true that you told him that you would be the savior of Jerry Rice?
“A. No, sir, that's not correct.”
Brown testified in rebuttal that he had dated Stem at one time. He testified that Stem knew Rice and had stated that she was Rice's savior because she had supposedly seen Lindy in 1993 and had a video tape of the meeting. He also testified that Stem had known Dixie Frazier, Rice's sister, for quite some time.
Turning to Rice's current contention, he contends that he was told by some unknown person that Dennis Parker overheard a conversation in which Brown, before his rebuttal testimony, asked his wife about Stem's testimony because Brown wanted to make sure his testimony was different from Stem's. Rice asserts that he told his trial counsel about this but that his trial counsel did not call Parker to testify about what he heard.
It is clear from the leading questions directed to Stem during her crossexamination that Brown had provided the prosecutor with information about Stem for use in questioning her. Brown's testimony in rebuttal was consistent with the information with which Stem was confronted in her cross-examination. For example, Stem was asked in cross-examination whether Brown was her former boyfriend. Brown testified in his direct testimony on rebuttal that he was Stem's former boyfriend.
Rice does not suggest that the prosecutor's source of information for Stem's crossexamination came from someone other than Brown. Thus, when Brown testified, his answers did not suggest that he had tailored his testimony. Rice argues in his appellate brief that Brown “was deliberately changing his testimony to contradict the testimony of a defense witness.” We find no evidence whatsoever of Brown changing his testimony from the information previously used by the prosecutor in questioning Stem. Moreover, Rice does not suggest how Brown's anticipated testimony changed after Stem testified. Finally, with respect to trial counsel, Rice fails to demonstrate how calling Parker would have made any difference.
We do not find trial counsel's conduct in this regard to have been objectively unreasonable. Thus, appellate counsel was not unreasonable in failing to raise this issue on appeal.
? Failure to Impeach Whitten with Testimony of Davis, Denny, and Judd
Rice argues that his trial counsel failed to impeach Pam Whitten's trial testimony with the testimony of additional witnesses. He also criticizes trial counsel's failure to introduce evidence that Whitten had drug charges pending against her during the time of Rice's trial. Rice claims his appellate counsel was ineffective for failing to raise these issues on appeal.
The State called Whitten to rebut the testimony of Rice's sister, Dixie Frazier, about the events on the morning after the altercation between Rice and Lindy. According to Whitten, Frazier said she had been at Rice's home that morning and found Rice sitting on the bed holding Lindy's lifeless body and telling her he was sorry.
Rice's trial counsel cross-examined Whitten and sought to impeach her credibility by: (1) pointing out that she said she went to sleep right after Frazier told her that Rice had killed Lindy; (2) questioning her about using drugs at the time; (3) eliciting Whitten's testimony that she had later called Frazier and left a threatening message; (4) eliciting Whitten's testimony that she had called Frazier for advice on what to tell the police and that Frazier told Whitten she was crazy and needed to get help; and (5) pointing out the unlikelihood that Frazier was at Rice's house for 3 hours on the day Lindy disappeared without Amanda and Mark ever seeing her.
Rice's trial counsel recalled Frazier in surrebuttal. According to Frazier, Whitten occasionally lived at Frazier's house. Whitten had a key to the house and “[s]he'd come to my house to eat, change clothes and clean up, use the telephone.” Frazier testified that Whitten used “Crystal” (apparently crystal meth) and marijuana, and Frazier told Whitten not to use the phone in connection with her drug dealing. Eventually Frazier kicked Whitten out of the house and changed the locks. Later, Whitten called and was talking “crazy” and asked Frazier for money.
Additional Impeachment Testimony by Icy Davis and Ron Judd
Rice's trial counsel spent considerable time impeaching Whitten's testimony. But Rice contends his trial counsel should have gone further and called Icy Davis to testify that Frazier, Rice's sister, had been at Rice's bar on the morning of September 15, 1992. According to Davis' statement, Rice came to the bar at 9 a.m. with the two children and stayed there until 9:30. We fail to see how this testimony would have made any difference.
Frazier testified that Rice brought the children to her house at about 8 a.m. She then went with the children to Rice's bar to open up that morning at 9 a.m. She returned home at about 10 a.m. Whitten was there when she got home. There is no evidence that the children were with Frazier when she returned home that morning from the bar. This is consistent with Davis' anticipated testimony.
Whitten, who had been living with Frazier for a few months, must have been out all night. Whitten arrived home at about 9 a.m. on the morning after the altercation. Frazier had already left and was not home at the time. Whitten testified that Frazier returned home at about 9:30 a.m. (Frazier said she arrived home about 10 a.m., a small but not crucial difference.) After Frazier disclosed to Whitten what apparently had happened to Lindy the night before, Whitten went to bed and awoke around 1 p.m. when Rice dropped off the children, purportedly so Frazier could look after them while he disposed of Lindy's body. According to Whitten, Frazier needed her help with the children while Rice was gone. Rice later returned to pick up the children at around 6 p.m.
Mark testified that Rice took him and his sister, Amanda, to the sitter's sometime that day and returned more than 2 hours later to pick them up. When they got home, Lindy was no longer on the floor of the bathroom.
According to Frazier, Rice picked up the children at around 5 p.m ., again a small but not crucial difference. (Whitten had testified that Rice came for the children at about 6 p.m.) Frazier did not testify one way or the other whether she had returned the children to Rice after opening the bar that morning and before 1 p.m. when Whitten said Rice dropped off the children.
It appears to us that Davis would not have provided substantial contradictory evidence on the timing of these events.
Rice also argues that if called to testify, Davis would have said that “Mark told her Lindy had left in a car and asked if Davis was the one who had picked his mother up at their house.” Further, according to Rice, Ron Judd would have testified that he was working on Rice's house on September 15, 1992, and no one came to or left the house while he was there that morning and that Frazier's white car was not at the house that morning.
Though Rice described this anticipated testimony of Davis and Judd as impeachment of Whitten, it could also be viewed as a further attempt to impeach Mark's trial testimony. As we discussed earlier, Rice's trial counsel was faced with the prospect of having Mark's preliminary hearing testimony introduced if there were further attempts to impeach him. That would have given the jury one more opportunity to hear Mark's damaging testimony.
Moreover, Rice's trial counsel testified that Davis and Judd would not have been helpful and were loose cannons. He said that he chose to put Frazier back on the stand at trial rather than calling these other potential rebuttal witnesses because he found them inadequate. From its ruling it is apparent that the district court found this testimony credible. Rice's trial counsel made a reasonable tactical decision not to call these witnesses to impeach Whitten. Thus, appellate counsel was not ineffective in failing to assert this issue on appeal.
Additional Impeachment Testimony by Roxanna Denny
Roxanna Denny worked at a bar apparently owned by, or licensed in the name of, Rice's sister, Dixie Frazier. In a 2002 statement, Denny reported that almost 10 years earlier, on October 4, 1992, she overheard Lindy's mother, Margaret Flynn, ask Whitten if Frazier had said anything about Lindy's disappearance. Whitten responded, “ ‘only that Lindy had left and nobody knew where she was.’ “ Flynn then said that she thought Rice killed Lindy but she could not prove it. According to Denny, Flynn and Whitten then “started whispering, so I couldn't hear anything else.”
Soon after Lindy's disappearance, Lela Chambers, Rice's then-current girlfriend, moved in with him. Chambers moved out about 4 months later. Denny apparently moved in with Rice the following month. Trial counsel certainly would have had to balance the value of Denny's testimony against the jury learning of Rice's serial relationships during the time he was purportedly concerned about his missing wife. (The jury never heard that Rice's marriage to Lindy was his sixth marriage.) Further, there are a number of possible explanations Whitten could have provided to explain away this inconsistency. We conclude that trial counsel's failure to call Denny as a witness at trial was a matter of trial strategy and not objectively unreasonable. Thus, appellate counsel was not ineffective for failing to raise this issue on appeal.
Denney also asserted in her 2002 statement that Whitten's cousin, Bill Francisco, claimed that Whitten and Flynn were framing Rice for Lindy's murder. Denny could not have testified to any hearsay statement of Francisco. Francisco, according to his statement, did not contend that Whitten lied when she testified. In his view, Whitten was crazy. This was a view shared and expressed by Dixie Frazier as recounted by Whitten on cross-examination. Whitten called Frazier to tell her she was being questioned by the police about Lindy's disappearance. Whitten testified to Frazier's response: “She told me I was crazy and that I needed help and hung up on me.”
According to Francisco, Whitten was testifying pursuant to a deal with the State regarding drug charges against Whitten. But drug charges were not filed against Whitten until after Whitten had testified at the preliminary hearing, and at the preliminary hearing Whitten testified consistent with her later testimony at trial.
Trial counsel questioned Whitten at trial about her use of drugs. Frazier testified that Whitten was a drug dealer. In cross-examining Whitten, Rice's trial counsel established that Whitten was actively cooperating with the police to develop evidence of Rice's guilt. Whitten testified that she called Frazier at the urging of the police and that the police were recording the conversation between Whitten and Frazier. Whitten was fearful of what would happen when Frazier “found out that that was being taped .”
Trial counsel effectively dealt with the issue without calling Francisco to testify. We do not conclude that the failure to call Francisco so undermined the adversarial process as to deny Rice a fair trial. Even if Francisco had been called to testify, we are satisfied the outcome of the trial would not have changed. Accordingly, appellate counsel was not ineffective for failing to raise this issue on appeal.
? Failure to Call Patti Black as a Witness
Rice argues that appellate counsel should have argued on appeal that trial counsel was ineffective for not calling Patti Black as a witness at trial. Rice asserts that Black could have contradicted some of the State's evidence, including that of Whitten, because she would have testified that there was no sign of foul play at Rice's home on September 15th, the china hutch was not broken, and the children did not seem upset.
But Rice testified at the Van Cleave hearing that on the night before Lindy disappeared, she had thrown a potted plant at him that missed him but hit and broke the hutch. Further, he testified that Black called to tell him she was sick and unable to work that day, negating any suggestion that she observed the condition of Rice's home that day.
Appellate counsel noted the evidence at trial that Lindy and Rice had been arguing about Black stealing money from one of their bars, a matter that trial counsel would consider when deciding whether to put Black on the stand.
Jones, Lindy's best friend, testified at trial that Lindy and Rice had been arguing the day before Lindy disappeared about a bartender that had been stealing from them. Carolyn Stevens, a close friend of Lindy's and an employee at one of Rice's bars, confirmed that Rice and Lindy were arguing over a bartender named Patti who had been stealing money, and Rice wanted her fired.
It is unlikely that Black's testimony would have changed the outcome of the trial. Her purported testimony was subject to significant impeachment by the State. Raising this issue on appeal was not one that was likely to have changed the outcome of Rice's appeal. Accordingly, Rice fails to show that his appellate counsel was ineffective for failing to raise this issue on appeal.
? Failure to Call KCK Police Officers to Testify
Rice contends that a person who claimed to be Lindy called the liquor control division of the Kansas City, Kansas, Police Department after the date of her disappearance to inquire about the liquor license for one of Rice's bars. There is no indication that either officer knew Lindy. But there was some indication that someone other than Lindy may have placed this call to further Rice's defense that Lindy was alive and well.
The officers were not called to testify at trial, but several other witnesses were called who testified to having seen Lindy at various places after her disappearance. At the K.S.A. 60–1507 hearing trial counsel was asked if this incident “fit into your argument ... that she was still alive out there.” He was not asked why he chose not to call these officers as witnesses at trial. Nevertheless, this evidence clearly would have been cumulative, and a decision not to call them would be an objectively reasonable strategic decision.
Appellate counsel was not asked about this at the evidentiary hearing. But applying the objective standard, appellate counsel need not raise on appeal every possible nonfrivolous issue. Rice has not presented evidence to overcome the strong presumption that his counsel's conduct fell within the broad range of reasonable professional assistance. See Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Moreover, we find it highly unlikely that our Supreme Court would have reversed Rice's conviction because of trial counsel's failure to call these witnesses at trial.
? Failure to Call a Substance Abuse Expert
Rice argues that trial counsel knew Lindy was a drug addict yet he did not consider calling an expert to testify that addicts routinely leave their children and families. Rice asserts that appellate counsel's failure to raise trial counsel's ineffectiveness on this point was ineffective assistance of appellate counsel.
There was significant evidence of Lindy's substance abuse problems. As trial counsel pointed out in closing argument:
“Robin Jones who characterized herself as the best friend that Lindy had had told you a lot about their life together.... She knew about Ms. Rice's extensive, almost overwhelming drug use, passed out on more than once on the bathroom floor. Sometimes she couldn't get her up, so drunk she had to drag her out of the car in her yard. Not a pretty picture, not a pretty picture and not said to demean the woman, but said because that's the way it was.”
Jones testified that she had taken care of Lindy's children for long periods of time when Lindy left them with her. On one occasion, she kept the children for 3 months because Lindy did not want to deal with them. Bernice Rice, Rice's mother, testified that Margaret Flynn, Lindy's mother, told her that Lindy had left several times, once for 3 years. Jamie Beech once took care of the children for 3 months while Lindy was living with Rice. During that period Lindy visited the children only twice. Trial counsel argued in closing, “these two minor children ... don't know where their mother is. It is our belief, as was our evidence, that she abandoned them.”
Trial counsel educed testimony and presented argument on the very point of Lindy abandoning her children. It is not clear that a substance abuse expert would have been found to be helpful and been permitted to testify on this matter in view of this testimony and the common-sense conclusions the jurors could draw from this evidence on their own. We conclude that not calling an expert on this subject was not objectively unreasonable. Thus, failing to raise the issue on appeal did not render appellate counsel ineffective.
? Failure to Introduce Evidence of Lindy Relinquishing Parental Rights to Other Children
Rice refers us to the transcript of the K.S.A. 60–1507 hearing at which Rice's trial counsel acknowledged that Rice had told him that Lindy had given up other children for adoption. In fact, Rice testified that one child was given up for adoption before Rice and Lindy began living together, and the other child was placed in an uncle's custody rather than being adopted. Trial counsel admitted that this evidence probably was “relevant to her being portrayed as the good mother who would never leave her children.” But trial counsel was not asked why he decided not to put on this evidence. Nor was appellate counsel asked why this issue was not pursued on appeal.
Applying the objective standard of reasonable professional assistance, and based on the evidence described in the preceding issue, we conclude that trial counsel provided evidence that made it clear to the jury that Lindy was a poor mother who was substantially disengaged from her children, either from a basic lack of maternal instincts or the overriding of those instincts by drugs and alcohol. There was no reasonable probability that adding to this record of maternal neglect with evidence of prior relinquishments of parental rights would have altered the outcome of the trial.
As we have noted before, reasonable appellate representation does not require counsel to raise on appeal every possible nonfrivilous issue. It was not unreasonable for appellate counsel here to focus on other, more productive issues on appeal rather than on this issue which was unlikely to provide any relief.
? Failure to Argue in Closing for a Lesser Included Offense
The trial court instructed the jury on both voluntary and involuntary manslaughter as lesser included offenses. Rice asserts that his trial counsel should have argued in closing that, at best, the State had proven only a lesser crime because the State had failed to prove premeditation. Rice argues that his appellate counsel was ineffective for failing to raise this issue on appeal.
Rice relies on cases from Indiana and Texas for support: Sharkey v. State, 672 N.E.2d 937 (Ind.App.1996), and Waddell v. State, 918 S.W.2d 91 (Tex.App.1996). But those cases involve claims that trial counsel failed to request an instruction on a lesser included offense. Here, the jury was instructed on the lesser offenses of murder in the second degree, voluntary manslaughter, and involuntary manslaughter. Rice's complaint goes only to his counsel's failure to argue in favor of the jury finding him guilty of one of these lesser offenses. Rice relies on an affidavit prepared by his trial counsel prior to Rice's appeal in which he said his trial strategy was to show that Lindy was alive and to defeat the element of premeditation for the first-degree murder charge.
Rice had maintained his innocence throughout the case. His trial counsel testified that Rice did not give him permission to argue that Rice was guilty of some lesser crime. Trial counsel had wanted to attack the element of premeditation but concluded that such an argument would not have been successful. Based on its ruling it is apparent that on this issue the district court believed trial counsel's testimony at the hearing. Moreover, trial counsel's evaluation of the likelihood of success on the premeditation element was confirmed by the Supreme Court when it detailed all the evidence that supported premeditation. State v. Rice, 261 Kan. 567, 588, 932 P.2d 981 (1997) (Rice I ).
Rice's appellate counsel testified that he understood trial counsel's principal strategy to have been Rice's actual innocence, not that the killing was in some way unintentional. Final argument is the one part of the trial in which the court imposes rigid time limits. There were a multitude of issues Rice's trial counsel had to cover in closing argument. We give strong deference to counsel with respect to the decision on how to use that time, what issues counsel wishes to cover, and how those issues are addressed in closing. When asked why it would not have been an easy matter for trial counsel to have argued the issue of premeditation in closing, Rice's appellate counsel observed that there would be nothing wrong with making that argument, but in view of Rice's contention that Lindy simply ran off and was still alive, “I just think when you put witnesses on as he did, that we saw her at some location, uh, I can see where maybe he just went actual innocence and didn't argue that.”
The jury was instructed on the elements of first-degree murder and the lesser offenses, and it was instructed that it had to make its findings in accordance with the instructions. The jury was instructed on the State's burden of proving beyond a reasonable doubt each and every element of the charge, including the element of premeditation for first-degree murder. We presume that the jury followed the court's instructions. State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011). We conclude that Rice's appellate counsel was not ineffective for failing to raise this issue on appeal.
? Failure to Object to the State's Closing Argument
Rice argues that his appellate counsel should have argued on appeal that his trial counsel was ineffective for failing to object to the prosecutor's reasonable doubt explanation during closing argument. In closing argument the prosecutor stated:
“Doubt does not equal not guilty. You must be able to give a valid reason as to why you find reasonable doubt. You cannot just say, ‘I don't think the State's evidence proves it.’ It has to be a valid reason. Reasonable doubt, we talked about it, it is not the shadow of a doubt, it is not any doubt, it is a reasonable doubt. If you're going to vote not guilty, please, please give a reason, because I submit to you that we have shown beyond a reasonable doubt that this man killed her.”
In his reply brief, Rice argues that prior to his direct appeal, the United States Supreme Court held that it is error to give the jury an instruction that attempts to define reasonable doubt. See Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ; Cage v. Louisiana, 498 U.S. 39, 40–41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Those cases considered written jury instructions, not oral arguments made in closing. It was in State v. Banks, 260 Kan. 918, 926, 927 P.2d 456 (1996), that the Kansas Supreme Court held that the closing argument—“ ‘if you are going to say these men are not guilty of something, you have to give a reason for it’ “—was error. There, for the first time, our Supreme Court disapproved of older caselaw which had approved language defining reasonable doubt as “ ‘such a doubt as a juror is able to give a reason for.’ “ 260 Kan. at 928.
The issue in Banks was whether the trial court erred in not declaring a mistrial based on the prosecutor's closing argument and the defendant's contention that under K.S.A. 22–3423(l)(c) a mistrial was necessary because the prosecutor's remark made it impossible to proceed with the trial without injustice to the defendant. While finding the prosecutor's argument to have been improper, the Supreme Court determined that the trial court did not err in refusing to declare a mistrial. The Supreme Court noted that the trial court had explicitly instructed the jury:
“ ‘The State has the burden to prove the defendant guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.’
“ ‘The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.’ “ 260 Kan. at 927.
The court concluded: “The prosecutor's argument was not so grossly and flagrantly improper as to prejudice the jury against Banks and deny him a fair trial in light of all the other substantial and compelling evidence going directly to his guilt.” 260 Kan. at 928.
In Rice's case, the district court provided a similar instruction to the jury on the burden of proof and reasonable doubt. Similarly, Rice was faced with substantial and compelling evidence that he had murdered Lindy. Taking all of this into account, we conclude that even if Rice's trial counsel could have extrapolated from the rulings in Sullivan and Cage to apply them to the prosecutor's closing argument, and could have anticipated the ruling in Banks, the prosecutor's remark was not so gross and flagrant that trial counsel's failure to intervene undermined the adversarial process and the fairness of the outcome of the trial. Given the status of the law at the time of Rice's trial, his appellate counsel was not ineffective for failing to raise this issue on appeal.
? Failure to Make Record of Juror Misconduct
After the jury verdict in the guilt phase of the trial, Rice's trial counsel advised the court that Rice was informed that over the lunch hour members of the jury were seen talking to and hugging members of Lindy's family in the courthouse coffee shop. The court responded: “Hugging the family and saying hi to the family doesn't violate the rule if they didn't talk about the case.” Rice claims his trial counsel did nothing to investigate the matter, and his appellate counsel should have asserted this as ineffective assistance of trial counsel in Rice's appeal.
The impediment to this claim is that Rice corrected the situation himself when he raised the issue pro se before the Supreme Court in his direct appeal. The Supreme Court stated that it had considered the matters raised by Rice in his pro se filings and held: “No issue raised in defendant's pro se filings requires a different result than we have reached herein.” Rice I, 261 Kan. at 609. Thus, the claim that appellate counsel was ineffective necessarily fails.
? Cumulative Errors
One ineffective assistance of counsel issue was raised in Rice's direct appeal: trial counsel's faulty advice to Rice that he not testify on his own behalf. Rice now argues that there is a reasonable probability that the divided Supreme Court that decided his direct appeal would have reversed his conviction if more of these issues of ineffective assistance of trial counsel had been raised on appeal.
The doctrine of cumulative error arises in the context of multiple claimed errors by the trial court. It is predicated on the accumulation of errors which, in themselves, do not constitute reversible error, but when taken together have the collective effect of denying the defendant a fair trial. See State v. Lewis, 299 Kan. 828, 858, 326 P.3d 387 (2014). Thus, it only applies to what are otherwise characterized as harmless errors. In the federal system the doctrine has been extended to claims of ineffective assistance of counsel. See Cargle v. Mullin, 317 F.3d 1196 (10th Cir.2003).
When, as here, the claim is that appellate counsel was ineffective in failing to raise issues of ineffective assistance of trial counsel, we have examined the merits of the underlying issue involving trial counsel's performance. See Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir.2001). Here, we have concluded that most of the claimed instances of ineffective assistance of trial counsel are not supported and do not constitute errors by Rice's trial counsel in the conduct of the trial. Thus, in weighing appellate counsel's performance, we need only consider those instances in which we concluded that trial counsel's performance was deficient but not so deficient as to warrant a reversal of Rice's conviction. In doing so, we are mindful of our duty to be highly deferential to the performance of Rice's appellate counsel in his decision as to which issues to pursue on appeal. Further, “a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.” Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). Finally, we recognize that appellate counsel “need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
Rice's approach to these proceedings appears to be to raise every conceivable issue in the hope that there is strength in numbers; in other words, a “death by a thousand paper cuts” strategy. But our review of the instances in which we concluded that the ineffective conduct of trial counsel probably would not have affected the outcome of the trial leads us to conclude that it is unlikely that raising these issues in Rice's direct appeal would have resulted in a reversal of his conviction.
The issues for which we found no prejudice relate to the decision not to call a particular witness, not to cross-examine a witness, not to examine a witness regarding a particular issue, or not to consult with an expert. On the other hand, the issue that attracted the attention and ire of the Supreme Court minority in Rice I was trial counsel's incorrect advice to Rice that he should not testify on his own behalf because if he did testify, the State would surely confront him with his past criminal record. As the minority noted, “[t]he conduct of the defendant's counsel did not merely result in a minor procedural error. [Trial counsel's] erroneous understanding of governing law had the effect of preventing the defendant's exercise of his apparent constitutional right to testify in his own defense.” 261 Kan. at 611 (Davis, J., dissenting). Citing the landmark Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the minority concluded that “defendant was deprived of the ‘guiding hand of counsel’ regarding his right to testify in his own defense.” Rice I, 261 Kan. at 613 (Davis, J., dissenting).
The Rice minority could not convince any member of the majority that trial counsel's erroneous advice about Rice not testifying in his own defense had denied Rice his fundamental right as a criminal defendant. But the claims raised in this appeal do not address a complete breakdown of the adversarial process such as when a criminal defendant is not able to present his or her side of the story. Rice's trial lasted 8 days. His trial counsel cross-examined 19 witnesses. He called 17 witnesses for the defense. The claims here go to trial counsel's choices on the way evidence is presented and when enough is enough. We are not satisfied that adding any of these claims of ineffective trial counsel would likely have swayed the Rice majority to a reversal of Rice's conviction. Accordingly, Rice's cumulative error contention fails.
Claims of Ineffective Assistance of Counsel in the Penalty Phase of the Trial
At noon, the jury returned its verdict that Rice was guilty of first-degree premeditated murder. The court inquired of counsel about the timing and procedure for the penalty phase. The State advised the court that its evidence in the penalty phase would consist of Rice's prior criminal record. When asked how he intended to proceed, Rice's trial counsel stated, “I am totally unfamiliar with the procedure other than reading it in the statute.... I don't know that we have any mitigating evidence the way I read the mitigators.” The court set the penalty phase of the trial for 2 p.m. that afternoon.
Before commencing the penalty phase that afternoon, the court held a conference in chambers to consider the State's proposed evidence. The State had previously given notice that it intended to seek a hard 40 sentence based on the aggravating factor that the crime was committed in an especially atrocious, cruel, or heinous manner. Thus, the court ruled that the State's evidence and argument would be limited to the manner in which the crime was committed. The court refused to admit evidence of Rice's criminal history, but “if they put on anything in mitigation, you could bring his past criminal record in ... as rebuttal if it was appropriate.” Rice has an extensive criminal history. Disregarding charges that were dismissed pursuant to plea agreements with the State, Rice's adult convictions consisted of the following (some of which appear to be municipal court cases) for which he served considerable time in prisons in Kansas, as well as in institutions in Missouri, North Carolina, and Connecticut:
1963 Burglary
1967 First Degree Armed Robbery
1970 First Degree Robbery
1974 Forgery
1974 Unlawful Possession of a Weapon
1975 Burglary
1978 Resisting an Officer
1981 Conspiracy to Possess Narcotics with Intent to Distribute
1988 Obstructing Officer
1988 Disorderly Conduct
1991 Obstructing Officer
Before the court's instruction conference on the jury instructions for the penalty phase, Rice's trial counsel advised the court:
“MR. BUNCH [defense counsel]: Fully anticipate that they will come back with a Hard Forty. I know—I mean I can reasonably anticipate what [the prosecutor's] argument would be. Mr. Rice, we have fully discussed this, have we not?
“MR. RICE: Yes, sir.
“MR. BUNCH: And he will abide by whatever judgment I make, and I anticipate that I will not argue. I believe, Judge, that we will eventually prevail on this record, and that's one of the reasons.”
After considering the proposed jury instructions, the court advised the parties they had 15 minutes for oral argument “if you choose to use it.”
The jurors reconvened, and the court read to them the jury instructions. The prosecutor then made his closing argument, after which Rice's trial counsel announced, “No argument.” With that, the jury retired for its deliberations, after which it returned its verdict of life imprisonment with the defendant eligible for parole after 40 years. “ ‘We, the jury, find the following aggravating circumstances to exist beyond a reasonable doubt: Heinous, atrocious and cruel.’ “ The jury was discharged. At sentencing, the court imposed the sentence recommended by the jury.
Rice's trial counsel, who has since retired, had practiced law since 1967. He had 26 years of experience at the time of Rice's trial. He was admitted to practice in the state and federal courts of Missouri. He served as the public defender in the Western District of Missouri from 1971 to 1974. He taught criminal trial techniques as an adjunct professor at the University of Missouri at Kansas City School of Law. About 80 percent of his practice involved defending those accused in criminal cases. Over the years he tried over 300 criminal cases, including 40 to 50 homicide cases and 25 to 30 murder cases. Rice's murder case was the second case he had tried in Kansas. He was not licensed to practice law in Kansas, but he had the assistance of an investigator and a Kansas attorney who served as local counsel in Rice's case. Rice's trial counsel had previously represented Rice in a criminal case in North Carolina.
? Failure to Understand Procedure and Failure to Explain Procedure to Rice
Rice points to his trial counsel's unfamiliarity with hard 40 proceedings. This was his trial counsel's first hard 40 proceeding. There was no comparable proceeding in Missouri. Trial counsel's experience is certainly a relevant factor for us to consider, but the mere fact that this was trial counsel's first hard 40 penalty hearing does not automatically render his handling of the matter deficient. We need to examine specific aspects of his conduct in order to determine whether his performance was objectively unreasonable.
Rice asserts that his trial counsel did nothing to familiarize himself with the proceedings beyond reading the applicable statute. But trial counsel had advice on the matter from his Kansas counsel and from the investigator retained for the case. Rice does not cite any appellate court opinions construing the hard 40 statute that his trial counsel should have read and understood beyond reading the statute.
We are repeatedly reminded to look to the clear and unambiguous language of a statute in determining its meaning. This holds true with respect to the hard 40 statute, K.S.A.1992 Supp. 21–4624. Rice does not cite any statutory ambiguity that would have been made clear by reading appellate decisions construing the statute.
Rice asserts that his trial counsel did not explain the proceeding to him. He testified that before trial his counsel did not discuss with him the hard 40 statute or the hard 40 procedure. Rice's understanding of the procedure was that “I was going to go to trial, and if the jury convicted me, then the judge was going to sentence me, possibly to hard 40, and that was it. I didn't know there would be a separate penalty thing.” According to Rice, his trial counsel did not tell him there would be a jury proceeding with the same jury that decided his guilt.
When asked about the information or advice he gave Rice about the hard 40 procedure, Rice's trial counsel stated that he did not remember what information or advice, if any, he gave Rice. This evidentiary vacuum leaves us with uncontradicted testimony that Rice's trial counsel failed to provide Rice with any explanation of the penalty phase before the trial commenced.
But it is clear that before the penalty phase began, Rice was aware of the procedure. At the meeting with the court after the guilty verdict, the court announced that the State's evidence would be limited to whether the State could prove the claimed aggravating factor that the crime was committed in an especially heinous, atrocious, or cruel manner. Rice's counsel advised the court that he would offer no evidence in mitigation. The court discussed closing arguments and their length, so Rice was aware of these aspects of the procedure. The court then took up the issue of jury instructions, so Rice was aware that the jury would be deciding the matter. But all of this was very shortly before the penalty phase began, and Rice's trial counsel apparently had no discussion whatsoever with Rice about what mitigating circumstances might be presented at the hearing if earlier in the trial he was found guilty.
? Failure to Introduce Mitigating Evidence
Rice argues that his appellate counsel was ineffective for failing to assert on appeal that his trial counsel was ineffective for failing to investigate or present any mitigating evidence during the penalty phase of his trial. Rice asserts that there was substantial mitigating evidence that could have been presented to the jury, but his trial counsel never asked him about his life history or his family life which would have been a source of mitigation evidence. Rice contends that the jury would not have recommended a hard 40 sentence if his trial counsel had investigated and presented this mitigating evidence.
Rice's trial counsel conceded that he had not thought about the hard 40 hearing and had done nothing to prepare for it until he heard the guilty verdict, 2 hours before the penalty phase hearing began. He testified that he did not put on mitigating evidence because he did not want Rice's extensive criminal history to be put before the jury. This was the only reason for not calling him as a witness.
K.S.A.1992 Supp. 21–4624(3) provides:
“(3) In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A.1992 Supp. 21–4625 and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible. No testimony by the defendant at the sentencing proceeding shall be admissible against the defendant at any subsequent criminal proceeding. At the conclusion of the evidentiary presentation, the court shall allow the parties a reasonable period of time in which to present oral argument.”
Aggravating circumstances are limited to those enumerated in the statute. They include the following aggravating circumstance raised by the State: “(6) The defendant committed the crime in an especially heinous, atrocious or cruel manner.” K.S.A.1992 Supp. 21–4625. Mitigating circumstances are not similarly limited by statute. K.S.A.1992 Supp. 21–4626 provides a list of eight mitigating circumstances, but the statute expressly states that mitigating circumstances are not limited to those set out in the statute.
Here, Rice's criminal history was irrelevant in that it did not tend to prove the State's claimed aggravating circumstance, and was inadmissible for that purpose. But it could have become admissible if Rice had put on mitigation evidence that held him out as an upstanding, rule abiding, or nonviolent member of society. “[J]ust as the defendant has the right to introduce any sort of relevant mitigating evidence, the State is entitled to rebut that evidence with proof of its own.” Dawson v. Delaware, 503 U.S. 159, 167, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). In Dawson, the Court agreed that if the defendant put on “good” character evidence, the State was entitled to introduce “bad” character evidence. With this constraint, what mitigating evidence could Rice's trial counsel have introduced?
When questioned about possible mitigating factors, Rice testified about his early life. His earliest memory was when, at age 3 or 4, “I killed my oldest sister.” He explained that the family was riding in a farm truck when a tire blew out. Rice fell into his father's arms, causing him to lose control and the truck to overturn, killing Rice's sister. After that, Rice's father “[t]umed into a mean vicious hateful drunk, especially to me. He never let me forget that I killed my oldest sister.” Rice's father subjected him to regular beatings. The family was poor. The house had no plumbing, and Rice could only bathe once a week. He wore his father's oversized hand-me-down pants that he held up with a piece of twine. He wore “run down shoes” and socks with holes. When, at age 12 or 13, Rice said, “ ‘I can't go to school like this,’ “ his father took out a pistol and told Rice to leave the house and never return. For the next 2 months Rice lived in a hobo camp. He panhandled for cash in downtown Kansas City, Missouri, and ate food from dumpsters. He left for Pittsburg, Kansas, for his first job at age 15. When he returned to visit his mother about 4 years later, his father knocked him down with a baseball bat, breaking his collar bone, and told him to never return.
Under K.S.A. 60–421, this testimony could have been elicited from Rice without opening the door for the introduction of Rice's criminal history. K.S.A. 60–421 provides:
“If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”
This exception in K.S.A. 60–421 which would allow admission of the criminal history evidence would not apply here because the evidence of Rice's early years would not have been offered “solely for the purpose of supporting [Rice's] credibility,” such as showing that Rice was a person of upstanding character or a credible witness.
But under K.S.A.1992 Supp. 21–4624(3), the rules of evidence do not apply in a penalty phase hearing. So K.S.A. 60–421 would not be an absolute bar to the admission of Rice's criminal history.
But Rice's criminal history would not have had any probative value with respect to the mitigating factor of Rice having grown up in poverty with an abusive father, and the State could not have used Rice's criminal history to prove that his current crime was committed in an especially heinous, atrocious, or cruel manner. So Rice's trial counsel would not have risked Rice's criminal history being introduced into evidence by introducing Rice's testimony about his hard-scrabble formative years.
As another mitigating factor, Rice cites the fact that he attributed his history of crimes to the influence of his older brother. Such testimony would have opened the door and would have permitted the State to elicit testimony about the extent and details of Rice's prior crimes.
Rice testified about his various employments over the years as a painter and eventually his ownership of a large painting company, a remodeling business, and the bars and lawn service described earlier in the testimony. He employed about 30 people in his businesses. Testimony about these aspects of Rice's life would tend to show him to be an upstanding citizen. This would have opened the door for the State to introduce evidence of Rice's criminal history to counter the suggestion that he is an upstanding, responsible businessman.
According to Rice, he tried to adopt Lindy's children, Mark and Amanda. Obviously, that effort was unsuccessful. The children moved away to live with their natural father. Rice has two children of his own: a son to whom Rice was not close and a Daughter, Dixie, named after Rice's sister who testified at the guilt phase. Rice is very close to his daughter, who could have testified at the penalty phase hearing about her love for her father. This testimony, which is of rather limited value, probably would have elicited testimony about Rice's criminal past and the years he spent in prison to counter the notion that he is a person of character and endearing qualities.
The State relies on Emerson v. Gramley, 91 F.3d 898 (7th Cir.1996), and Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), for the proposition that the strategic decision not to call mitigation witnesses is sound if based on trial counsel's determination that the witness' testimony, on balance, might harm rather than help the defendant. But here, that calculation does not apply because trial counsel could expect the testimony about Rice's meager upbringing would not open the door for evidence of his criminal history. We see no basis for concluding that this testimony would have harmed Rice more that it would help him.
Rice's trial counsel testified that the only impediment to calling Rice as a witness was the prospect of having his criminal history exposed. But Rice could have testified about his difficult upbringing without opening the door for the State to put before the jury Rice's criminal past. Without this evidence, the jury had nothing to weigh against the State's aggravating factor, which was, in essence, self-proving because the jury was instructed that “[a] crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts ... serious physical abuse before the victim's death.” Under these circumstances, it was not a sound strategic decision to not call Rice as a witness in order to provide limited testimony about his upbringing as a mitigating factor.
? Failure to Argue
At the K.S.A. 60–1507 hearing, Rice's trial counsel acknowledged that he knew he was allowed to make an argument at the hearing but claimed he could not figure out what he could say on Rice's behalf. Of course, if he had called Rice to testify about his upbringing, counsel could have argued that to the jury. He also could have argued Rice's remorse, as evidenced by his expressions of sorrow when he held Lindy in his arms on the morning after the altercation.
Rice's trial counsel conceded that if the trial judge was deciding his client's sentence rather than the jury, “I would have probably said we believe we're entitled for the minimum-certainly I would have said something.... I would have probably reminded the court what the options were and suggest a lesser punishment.” No such suggestion was made to the jury on Rice's behalf because Rice's trial counsel waived closing argument.
Unlike the option of presenting evidence during the penalty phase, which would have required trial counsel to be careful not to open the door to evidence of Rice's criminal history, counsel would have faced no such danger in making a closing argument on Rice's behalf.
? Improper Service of Hard 40 Notice
Rice argues that his appellate counsel should have argued on appeal that trial counsel was ineffective for failing to object to the State's improper service of the hard 40 notice. He contends that he was not served with a filed copy of the hard 40 notice at his arraignment.
The notice requirements of K.S.A.1992 Supp. 21–4624 are mandatory and, if not followed by the State, a hard 40 sentence cannot be imposed. State v. White, 263 Kan. 283, 310, 950 P.2d 1316 (1997). If the notice is both filed with the court and served on the defendant at the arraignment, the statutory requirements for filing and service have been met. Service of the notice on the defendant at the arraignment before the notice is filed with the court is effective if the notice is actually and personally filed with the trial judge at the arraignment. Notice can be filed personally with the court at arraignment if the State provides an original copy of the notice to the trial judge at the arraignment and indicates on the official record that it is providing the judge with the notice with the intent to file the notice. The judge must personally accept the notice, preferably indicating on the record that such acceptance constitutes filing of the notice with the trial court. 263 Kan. at 310–11. Once the trial judge has personally received the notice, filing of the notice is complete, and the trial judge should note on the notice the filing date and should forthwith transmit the notice to the office of the clerk. 263 Kan. at 312.
The following exchange took placed at Rice's arraignment:
“MR. RUSSELL [prosecutor]: Judge, at this time I would give notice to the Court and to Mr. Vader [Rice's attorney] the State intends to invoke what is called the Mandatory Term of Imprisonment, otherwise known as the Hard 40 if Mr. Rice is convicted of premeditated murder. Under the statutes [it] must be done at the arraignment. I'm giving the Court notice at this time. This too has to be filed with the Court. I will immediately file my motion with the Court as soon as we are over, but it does say at arraignment. I'm giving Mr. Vader notice and I'm giving the Court notice and I would ask that the docket sheet show that Mr. Vader and Mr. Rice have been given notice that we intend to invoke what is known as the Hard 40.
“THE COURT: For the record, I'll note that you did hand to the Court what is entitled Notice to Invoke Mandatory Term of Imprisonment.”
In Rice's direct appeal the Kansas Supreme Court noted that it had examined Rice's pro se filing alleging that this notice was not timely filed and found the argument to be without merit. State v. Rice, 261 Kan. 567, 609, 932 P.2d 981 (1997) (Rice I ).
The notice itself has a handwritten notation showing that it was filed on the date of the arraignment. With respect to service of the notice on Rice, personal service was made on Rice and his counsel at the same time as the filing was made with the court. “I'm giving Mr. Vader notice and I'm giving the Court notice” indicates to us that the prosecutor was handing the notice to Jay Vader, Rice's original trial counsel, and to the trial judge, particularly when the trial judge stated immediately thereafter, “for the record, I'll note that you did hand to the court what is entitled Notice to Invoke Mandatory Term of Imprisonment.”
There is no indication that Rice's trial counsel, who later entered an appearance in the case and replaced Vader, was made aware that there was any issue regarding service. Trial counsel was not ineffective in this regard, so appellate counsel was not ineffective for failing to raise the issue on appeal.
? Failure to Object to Improper Argument
Rice argues that his appellate counsel was ineffective because he did not argue on appeal trial counsel's failure to object to the State's improper remarks during closing argument. The improper remarks at issue include statements the prosecutor made indicating that: (1) the jury could consider the impact Rice's crime had on Lindy's family when deciding whether the murder was committed in an especially heinous, atrocious, or cruel manner; (2) in order to have a reasonable doubt the jury must be able to give a reason why the crime was not heinous, atrocious, or cruel; and (3) Rice did not present any mitigating evidence because there was none to consider.
With respect to argument (1), the exclusive statutory list of aggravating factors does not include the impact of the crime on the victim's family. Further, the district court specifically limited the State to evidence and arguments regarding the heinous, atrocious, or cruel manner in which the crime was committed. The prosecutor's argument exceeded both the statutory and court-directed limit on his argument. The argument was designed to evoke an emotional response from jurors in contemplating the after-effects of the crime. Rice's trial counsel should have objected to this testimony. Had he done so, we expect the trial court would have sustained the objection, instructed the jury to disregard this argument, and admonished the prosecutor to confine his arguments to the sole factor at issue.
We addressed the substance of argument (2) earlier in this opinion, and we need not repeat that analysis here.
With respect to argument (3), that Rice did not present any mitigating evidence because there was none to consider, this was a true statement: Rice did not present any mitigation evidence. But the statement did not shift the burden of proof onto Rice, as Rice would have us believe. The jury was instructed that it was the State's burden to prove its claimed aggravating factor beyond a reasonable doubt and to prove that the aggravating factor outweighed any mitigating factors.
In State v. Green, 254 Kan. 669, 687–88, 867 P.2d 366 (1994), a judge's comment at sentencing that the defendant had not presented any evidence of mitigation did not violate the defendant's right to remain silent through sentencing. The Supreme Court noted that, as here, the defendant was given an opportunity to present evidence of mitigation but chose not to, and the judge's comment was merely an observation of that fact. 254 Kan. at 688. Rice's trial counsel was not ineffective for failing to object to this argument, and his appellate counsel was not ineffective for failing to raise the issue on appeal.
? Failure to Object to Jury Instruction on Unanimity
Rice argues that his appellate counsel was ineffective for failing to raise on appeal trial counsel's failure to object to the hard 40 unanimity instruction. He asserts that the same unanimity instruction used here was found to be clearly erroneous by the Kansas Supreme Court in State v. Reed, 256 Kan. 547, 566–67, 886 P.2d 854 (1994).
Reed is directly on point. The court instructed the jury in this case that its verdict had to be unanimous, and the verdict form then offered the jury two possible verdicts: life imprisonment with parole eligibility in 15 years or life imprisonment with eligibility for parole after 40 years. The instruction and the verdict taken together imply that the jury had to be unanimous in recommending either a hard 40 sentence or a hard 15 sentence, which simply was not the law. K.S.A.1992 Supp. 21–4624(5) provides that the jury must unanimously reach its verdict of a mandatory 40 years' imprisonment, but if it is unable to reach a verdict, the defendant will be sentenced to a life sentence, with parole eligibility in 15 years under K.S.A.1992 Supp. 22–3717(b).
It was certainly a possibility that this erroneous instruction affected the outcome of the proceeding. A lone juror holding out for life with the possibility of parole in 15 years could certainly bow to the will of the other 11 jurors because there was no possibility of convincing the other 11 to support a unanimous verdict of the life in prison with the possibility of parole in 15 years.
Rice also contends his trial counsel should have objected to the lack of a jury instruction defining mitigation. But Rice's trial counsel offered nothing in mitigation. We conclude that trial counsel's deficiency was in not introducing and arguing mitigating circumstances. Had he done so, then an instruction defining mitigation would have been necessary.
Rice's trial counsel was asked what he did as a lawyer to represent Rice during the penalty phase of the trial. Trial counsel responded: “Nothing.” Unlike in the guilt phase, Rice's trial counsel abandoned his role as an advocate in the penalty phase of Rice's trial. Trial counsel should have provided his client with a timely explanation of what would happen during the penalty phase of the trial. He should have introduced into evidence and argued in closing the mitigating circumstances of Rice's early life. He should have objected to the prosecutor's improper argument to the jury and the court's verdict form. Under these circumstances we cannot conclude that the errors were harmless. Accordingly, Rice's appellate counsel should have raised on appeal the issue of trial counsel's abandonment of his client in the penalty phase of the trial.
Thus, we affirm the trial court with respect to Rice's claims regarding the guilt phase of his trial. But we reverse the trial court with respect to Rice's claims regarding the penalty phase of his trial, vacate Rice's sentence, and remand to the district court for a new penalty phase hearing and sentencing.