Opinion
110,353.
11-26-2014
STATE of Kansas, Appellee, v. Joseph Lee ALLEN, Appellant.
Gerald E. Wells, of Jerry Wells attorney-at-law, of Lawrence, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Gerald E. Wells, of Jerry Wells attorney-at-law, of Lawrence, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is Joseph Lee Allen's direct appeal from convictions for attempted first degree murder and criminal possession of a firearm. The case returns to us after a remand to the district court for a hearing on ineffective assistance of trial counsel pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). See State v. Allen, No. 101,367, unpublished Court of Appeals opinion filed September 10, 2010. The trial court found Allen had failed to prove either deficient performance by trial counsel or prejudice at trial. We affirm the district court's ruling.
Factual and Procedural Background
Wayne Brandon, Jr., suspected that Allen was involved in the theft of Brandon's pit bull dogs. Brandon told his suspicions to James Mandell Lewis, who is known by his middle name. Brandon testified that at about 9:30 p.m. on February 27, 2006, while sitting in his car on the street by his house, Allen approached and asked: “ ‘What is this you told Mandell?’ “ Brandon said he denied saying anything, but Allen nevertheless shot him, causing severe injury. Brandon tried to escape by crawling from the car as Allen walked away.
At trial, Allen offered an alibi defense. He testified to being at an automobile auction until 9:50 p.m., and he presented witnesses who testified to seeing him there about that time. Allen admitted under cross-examination, however, that he left shortly before the auction ended, and other witnesses, including the president and general manager of the auction company, testified the auction ended at 9:30 p.m. A police officer, after traveling several routes between the auction site and the crime scene, testified the drive took from 15–17 minutes.
The time of the shooting was disputed. Brandon testified he was not wearing a watch and only had “a rough idea” based on an earlier glance at a wall-clock. In contrast, police records showed the caller reporting the shooting called at 9:53 p.m. The call was made by Brandon's neighbor, who testified he heard the gunfire, opened his front door and, seeing Brandon in the street, asked him if he was all right. When Brandon said he had been shot, the neighbor “got my family to the back of the house” and “[t]ook my cell phone out of my pocket and called 9–1–1.”
The police dispatcher advised officers of the shooting at 9:55 p.m., and an officer in the area testified that he drove to the crime scene with lights and sirens at “probably 70 miles per hour.” The officer explained his route using a map which was introduced into evidence below, but the map and all other trial exhibits, along with the exhibits offered on remand, are omitted from the record on appeal. Regardless, another neighbor testified that police arrived at the scene less than 3 minutes after she heard gunfire.
Russell Marshall, who was incarcerated with Allen after the incident,
The police dispatcher advised officers of the shooting at 9:55 p.m., and an officer in the area testified that he drove to the crime scene with lights and sirens at “probably 70 miles per hour.” The officer explained his route using a map which was introduced into evidence below, but the map and all other trial exhibits, along with the exhibits offered on remand, are omitted from the record on appeal. Regardless, another neighbor testified that police arrived at the scene less than 3 minutes after she heard gunfire.
Russell Marshall, who was incarcerated with Allen after the incident, testified that Allen admitted to the shooting. Marshall identified a letter he said Allen personally delivered to him. The letter directed Mar testified that Allen admitted to the shooting. Marshall identified a letter he said Allen personally delivered to him. The letter directed Marshall to tell Brandon that Allen would give him $1,000 and a Cadillac “if he didn't show up for Court.” Marshall was also supposed to convey that Allen ‘ “is sorry, he will still be locked up on other charges.” ’
The State introduced into evidence a second letter from Allen, this one intercepted by jail personnel as Allen dropped it to another inmate on a lower tier of the jail. In this letter Allen instructed someone to tell Brandon to “ ‘keep it street.’ “ If Brandon would “ ‘[s]top coming down here to Court,’ “ the message said, Allen's brother “ ‘has a stack for him.’ “ At trial Allen admitted to writing both letters.
The jury found Allen guilty as charged. Allen appealed the verdicts, raising ineffective assistance of trial counsel as his only issue. A panel of our court first summarized Allen's efforts before, during, and after sentencing to challenge the effectiveness of his counsel. The panel believed the record was “clearly ... insufficient” to resolve the issue on appeal, however. Slip op. at 5. After noting that the State had failed “to address the Van Cleave procedure,” the panel decided to follow that precedent and remand, “so that facts relevant to the determination of Allen's claim may be developed and an evidentiary record established.” Slip op. at 5–6. The State did not petition for review by the Kansas Supreme Court.
On remand, the same judge who had conducted the criminal trial received evidence during 2 days of hearings. The parties provided written briefing, and the judge wrote detailed memoranda explaining his ruling denying Allen's claim of ineffective assistance of counsel.
Jurisdiction
Before reaching the merits, we must address the State's argument, raised for the first time on appeal, that we lack subject matter jurisdiction over Allen's ineffective assistance of counsel claim. The State contends we “can deny this entire appeal because the previous panel of this court never acquired jurisdiction over Allen's untimely motion for a new trial.” The State suggests that because “the district court lacked jurisdiction to rule on the motion ... this court never obtained it and likewise lacked jurisdiction.” The existence of jurisdiction is a question of law subject to unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
Allen was sentenced on September 19, 2008, and he filed a notice of appeal on September 22, 2008. The prior panel, therefore, had jurisdiction to hear the direct appeal taken by Allen “as a matter of right” from his convictions. K.S.A. 22–3602(a) ; see also K.S.A. 22–3608(c) (giving 10 days to appeal “after the judgment of the district court”); State v. Phillips, 289 Kan. 28, 33, 210 P.3d 93 (2009) (judgment is effective when sentence is announced in open court).
If the State means the prior panel erred in remanding the matter pursuant to Van Cleave, its arguments are too late. The State did not petition for review of the panel's decision, and that decision is now the law of the case. See State v. Collier, 263 Kan. 629, Syl. ¶¶ 2–3, 952 P.2d 1326 (1998). We do not believe the panel's decision was “clearly erroneous or would cause manifest injustice,” as is required for reconsideration. 263 Kan. 629, Syl. ¶ 3. The panel was simply following an “option which would avoid the delay and expense of a separate action and a separate appeal,” as our Supreme Court explained in Van Cleave. 239 Kan. at 119–20.
Nevertheless, we will address the State's argument, which cites State v. Holt, 298 Kan. 469, 470, 313 P.3d 826 (2013). Holt filed a motion for new trial 16 years after his convictions, after four K.S.A. 60–1507 motions, two motions to correct illegal sentence, and a motion for reconsideration. The district court “summarily dismissed Holt's motion as successive and untimely.” 298 Kan. at 472. The issue before our Supreme Court was whether “the district court abused its discretion in its summary dismissal.” 298 Kan. at 472.
Holt argued, “the time-limiting language in K.S.A .... 22–3501(1) is merely directory, not mandatory.” 298 Kan. at 472. This subsection limits a motion for new trial on grounds other than newly discovered evidence to “14 days after the verdict or finding of guilty or within such further time as the court may fix during the 14–day period.” K.S.A.2013 Supp. 22–3501(1). Our Supreme Court disagreed with Holt, stating “the language of K.S.A .... 22–3501(1) regarding motions for new trial based on grounds other than newly discovered evidence should be read as mandatory.” 298 Kan. at 479. The court therefore concluded, “the district court did not abuse its discretion in summarily dismissing [the motion for new trial] as untimely.” 298 Kan. at 479.
We disagree with the State's suggestion that Holt rules out appellate court jurisdiction over an ineffective assistance of counsel claim unless the claim is first made in a timely motion for new trial. Our Supreme Court did not say so in Holt, and in Van Cleave it specifically stated the remand procedure would work well for “a claim of ineffective assistance of counsel which arises after the district court has lost jurisdiction of the case pending appeal.” 239 Kan. at 120. In line with Van Cleave, our Supreme Court later explained that its precedent did not hold “failure to raise the issue [of ineffective assistance] in the district court was an absolute procedural bar,” but rather that its precedent permitted a remand “for an evidentiary hearing after determining the ineffective assistance of counsel issue could not be considered as a matter of law.” Trotter v. State, 288 Kan. 112, 130, 200 P.3d 1236 (2009). We conclude that we have subject matter jurisdiction over Allen's ineffective assistance of counsel claim.
Ineffective Assistance of Trial Counsel
Allen identifies three ways his trial counsel was ineffective, thereby violating the Sixth Amendment to the United State Constitution: “1) Trial counsel failed to cross-examine witnesses, to establish that the victim was shot at 9:30 p.m.; 2) Trial counsel failed to investigate and establish that Russell Marshall's testimony was false, and subject to impeachment; and 3) That trial counsel failed to adequately consult with [Allen] when he was incarcerated.” These are mixed questions of fact and law. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013). We review the trial court's findings for substantial competent evidence, and we review its legal conclusions de novo. 296 Kan. at 430.
We apply a two-prong test to determine “whether a criminal defendant's ... right to effective assistance of counsel has been violated: (1) The defendant must demonstrate that counsel's performance was deficient; and (2) the defendant must show that counsel's deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.” State v. Brooks, 297 Kan. 945, Syl. ¶ 1, 305 P.3d 634 (2013).
In conducting our analysis we are guided by our Supreme Court's admonition that “[j]udicial scrutiny of counsel's performance must be highly deferential. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.... A court considering a claim of ineffective assistance of counsel must consider all the evidence before the judge or jury. [Citations omitted.]” Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). We will individually review Allen's specific claims of ineffective assistance of trial counsel.
Time of the shooting
The premise of Allen's first argument, ineffective cross-examination, is that trial witnesses possessed knowledge of a 9:30 p.m. shooting time but were never asked about it. Allen identifies two witnesses, Jack Allison, a neighbor of Brandon's, and Troy Willard, a detective assigned to the case. We will consider each witness separately.
Contrary to Allen's contention, his trial counsel did cross-examine Allison about the time of the shooting. Allison responded: “It must have been between probably 9:15 and 10:15, that's what I can remember.” On remand, Allison added that while he “couldn't be sure,” he also thought “at least 15 minutes” passed between the gunfire and his notice of “red lights in my living room.” Allison emphasized, however, that he had not investigated after hearing the gunfire and he did not know what type of vehicle had its emergency lights activated. He explained, “I did not look, sir, I was trying not to get involved, period.”
Allen's trial counsel did not cross-examine Detective Willard regarding the time of the shooting. But the detective was not a witness to the crime, and the only testimony he could have added was whether Brandon stated the time during an interview. On remand, Detective Willard testified that during an interview Brandon said he was shot at 9:30 p.m.
We do not discern deficient performance with regard to either witness. Allison's testimony was weak and could not have specified the time of the shooting. Detective Willard could have testified to Brandon's statement that he was shot at 9:30 p.m., thereby supporting Brandon's testimony at trial, but Brandon had already admitted his uncertainty regarding the time of the shooting.
In contrast, the evidence for a shooting time of about 9:50 p.m. was very strong. The 9:50 p.m. time did not depend on Brandon's admittedly uncertain estimation but on the recorded time of the 911 call. Not only was there testimony that the call was placed just after the shooting, there was no basis to conclude Brandon had lain in the street for 20 minutes as would have been the case if he were shot at 9:30 p.m.
Brandon testified that when Allen walked away he reentered his car in an attempt to drive to the hospital. Brandon said he was too weak, however, and a neighbor got in the driver's seat and began driving him to the hospital. The neighbor also testified, saying that immediately upon hearing gunfire she saw Brandon had been shot, so she “jumped in the car” to drive him to the hospital. The officer who first responded to the scene testified to observing a vehicle matching the description of Brandon's car leaving the neighborhood as he approached it. The officer said he later verified that Brandon was “just leaving” for the hospital.
“The burden is on a defendant to demonstrate that the alleged deficiencies were not the result of strategy.” State v. Adams, 292 Kan. 151, 167, 254 P.3d 515 (2011). Allen has not met his burden. Given the strength of the evidence that 9:50 p.m. was the time of the shooting, the defense strategy was to place Allen at the auto auction at that time. One advantage of this strategy was that it was totally separate and independent from Brandon's uncertain estimation of the shooting time, so supporting his trial testimony with his earlier statement to Detective Willard was of little significance. We agree with the district court's conclusions on remand, that “Allen overstates the importance of the evidence establishing a 9:30 [p.m.] timeline for the shooting,” and that “counsel's decision to not directly dispute the 9:52 [p.m.] time frame [sic] while attempting to establish that Allen was at the auction until at least 9:45 [p.m.] or later was reasonable.”
Allen makes a related point when he complains that his counsel interviewed neither Allison nor Detective Willard. There was some evidence at the remand hearing showing Allen's counsel could have known their potential testimony from police reports. But even if Allen's counsel made strategic choices after a “ ‘less than complete investigation,” those choices were reasonable “to the extent that reasonable professional judgments support the limitations on investigation.’ [Citations omitted.]” Adams, 292 Kan. at 167. Under Allen's defense strategy, a 9:30 p.m. shooting time was not critical and indeed probably not supportable given the nature and quality of the State's evidence. As a result, it was reasonable for Allen's counsel to not pursue that line of investigation.
Russell Marshall's testimony
Allen next argues “impeachment material” might have been available for use against Marshall if his trial counsel had conducted an adequate investigation. Allen states the existence of such material “is unknown because trial counsel failed to investigate.” Allen instead asserts “a strong possibility” such material existed.
We do not find probative evidence of impeachment material in the present record. Apparently recounting a claim he made below, Allen first states it was “impossible” for him to tell Marshall of the shooting because they “were located in different physical locations in the jail.” Jail records produced on remand, however, showed Allen and Marshall were housed in the same module for about 1 month, the length of time Marshall indicated at trial. A jail official testified that an inmate could visit with another inmate while located in the same module.
Allen also posits an argument about the letter Marshall testified he received from Allen. Allen does not dispute the authenticity of the letter but merely suggests he could not have given it to Marshall. Marshall testified that Allen gave him the letter “[a]round about July of this year,” meaning 2006. As just stated, the jail records produced on remand showed Allen and Marshall were in the same module for roughly 1 month, ending on June 12, 2006. Since “around about July” would reasonably encompass a date in mid-June, the jail records would not have clearly impeached Marshall's credibility.
Allen next argues “a Kasper search by trial counsel would have demonstrated that Marshall lied when he testified that [he] and [Allen] were in prison together in 1991 and 1992.” Allen does not cite to the record for this testimony. Our own search of the record shows Marshall testified he was in prison with Marshall in the “[l]ike maybe early '90's,” and in “[l]ike '91, ' 92.” This point was hardly central to Marshall's testimony, and considering the indefinite nature of Marshall's representations, together with the omission of the KASPER records from the record on appeal, we are unable to conclude the records would have substantially impeached Marshall's credibility.
Allen was required to “demonstrate” on remand that his trial counsel's performance was deficient. Brooks, 297 Kan. 945, Syl. ¶ 1. We cannot presume deficient performance on appeal but should presume the opposite, that “counsel's conduct fell within the wide range of reasonable professional assistance.” Harris, 288 Kan. at 416. Nothing in the existing record shows Allen has overcome the strong presumption of competent representation. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (party claiming error must designate a record affirmatively showing the error). As with the time of the shooting, Allen has not shown that further investigation by his counsel into Marshall's expected testimony was reasonably warranted.
Pretrial communication
Allen contends his trial counsel frustrated the defense by failing to communicate with him before trial. The district court found “this claim has no evidentiary basis.” Allen challenges the district court's finding, arguing in effect that he presented substantial evidence supporting this contention.
Allen did not testify at the remand hearing. His trial counsel testified that he spent considerable time with Allen. To quantify this testimony, the State introduced an “appointed counsel claim form” which apparently showed the “bulk” of the contacts between Allen and his counsel. This exhibit, like the others admitted below, is omitted from the record on appeal. But it apparently showed that Allen met with his counsel 15 times. Allen's counsel further explained that jail records would not record all visits with Allen because the jailers would let in several attorneys at a time, and the attorneys might see more than one client on a particular visit. Jail records produced on remand indicated Allen's counsel had made only two visits to the jail, but a jail official essentially confirmed the testimony of Allen's counsel, stating the jail has since changed its practices to insure attorneys register at each jail visit and identify each client they intend to see.
We agree with the district court that this claim has an insufficient evidentiary basis. And certainly, considering all of the evidence, Allen has not overcome the strong presumption of effective professional assistance before trial. He therefore fails to show constitutionally deficient performance.
Prejudice
Allen raises conclusory arguments for prejudice, asserting in each instance that if the evidence were as he asserts, the result at trial would have been different. For example, he states, “if the jury believed that the shooting took place right at 9:30 p.m., ... they would believe the ... alibi and the outcome would have been very different.” He similarly states, “had trial counsel visited [him] sufficiently to prepare for trial, particularly since he was the primary witness, the outcome could likely have been different.”
As a general rule, “[i]n order to show prejudice, a defendant must show a reasonable probability that, except for counsel's deficient performance, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Harris, 288 Kan. at 416.
As we have already discussed, the record does not support Allen's contentions. But even if Allen's counsel was ineffective in some way, for example, by failing to uncover the details of Allison's testimony, or by failing to locate jail records which might have impeached Marshall's credibility, Allen has not shown a reasonable probability the result of the trial would have been different. Brandon's account was supported by the State's evidence generally, and Allen's alibi was undercut by evidence showing the auction had ended in time for him to reach the crime scene. There was also evidence we have not mentioned, such as the fairly extensive evidence of Allen's efforts to avoid capture after the shooting. See State v. Phillips, 295 Kan. 929, 947–48, 287 P.3d 245 (2012) (evidence of flight is admissible to show guilt). Accordingly, even assuming deficient performance by trial counsel as claimed by Allen on appeal, there was an insufficient showing to undermine confidence in the outcome of the trial.
Affirmed.