Opinion
No. 104,956.
2012-06-8
STATE of Kansas, Appellee, v. John DAVIS, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
John Davis was convicted of aggravated criminal sodomy based on evidence that he entered the room of a 16–year–old foster child and forced his penis into her mouth.
Factual Background
On June 25, 2009, L.C., a sixteen-year-old foster girl, was taken to respite care at the apartment of Brenda Davis in Kansas City, Kansas. At that time, L.C.'s permanent foster parent was Pamela Brown. Brenda provided respite care for foster children, meaning that she supervised children who couldn't be left alone while their foster parents were working. L.C. spent the day at Brenda's apartment napping, running errands with Brenda, and walking to a nearby park alone. After L.C. returned from the park, Brenda told L .C. she was going to visit her cousin who lived in a different apartment in the same building. During this visit, L.C. watched television in a bedroom in Brenda's apartment with bunk beds and a bathroom. L.C. didn't remember seeing anyone else in the apartment during this time.
In the late afternoon, while L.C. was watching television, a man L.C. had never seen before entered the room. L.C. described him as 5–foot, 4–inches tall with “really dark” skin, salt-and-pepper hair, sideburns, and a mustache that hooked into a beard. The man was wearing a white tank top and beige pants. He asked L.C. what movies she liked to watch. The man briefly left the room and then came back. He then pulled down his pants and rubbed his penis on L.C.'s mouth. According to L.C, the man forced his penis into her mouth until she gagged and the man then placed her left hand on his testicles and said, “[Y]ou got a lot to learn ‘cause men like their balls rubbed.” L.C. testified that she was scared and “fr[oze] up .” L.C. then pushed the man back. The man asked L.C, “[D]o you eat cum?” and L.C. responded, “[N]o,” and, “[T]hat's nasty.” L . C. said the man then went to the bathroom and ejaculated into the toilet. L.C. left the room as the man asked her if she had a condom; she said the man also told L.C. that if she told anybody, he would find her. L.C. ran outside to wait for Brown to pick her up.
Brown picked up L.C. at approximately 5:30 p.m. Initially, L.C. was quiet and somber. But later that evening, L.C. came to Brown in hysterics and begged Brown not to take her back to Brenda's apartment. At first, L.C. refused to explain why because she was worried that “he'll find me.” But eventually L.C. told Brown about the events described above. Brown immediately contacted the foster-care agency and the police. Police officers observed that L.C.'s story remained consistent throughout multiple interviews with different officers—even when officers deliberately misstated L.C.'s allegations, L.C. would correct them.
When officers visited Brenda's apartment, she acknowledged providing respite care to a “Letisha,” but she denied that she ever left her alone or that an adult male was ever present. Brenda later testified that she thought L.C.'s name was “Liandra.” Neither Letisha nor Liandra was L.C.'s correct name; we use only her initials in this opinion pursuant to Supreme Court Rule 7.043(c) ( 2011 Kan. Ct. R. Annot. 61).
Later that night, officers located John Davis—Brenda's cousin—in the apartment's parking lot and took him into custody. His underwear, a pair of bluish-gray boxers, matched L.C.'s description. The officers created a photo lineup that included Davis. L.C. picked him out of the lineup without hesitation.
At a 2–day jury trial beginning December 7, 2009, L.C, Brown, Brenda, and various officers testified to the facts described above. Davis denied making any sexual overtures or having any sexual relationship with L.C. He testified that he was in and out of Brenda's apartment on the day in question, but he only briefly spoke to L.C. about school and was never alone with L.C. or outside of Brenda's earshot. Davis speculated that L.C, could have known the color of his underwear if she had seen him sleeping in the apartment.
During closing arguments Davis' counsel, Philip Sedgwick, argued that L.C.'s story should not be believed because she never sought out or called for Brenda. On rebuttal, the State argued:
“Why didn't she tell Brenda Davis? ‘Cause Brenda Davis wa[s]n't around. And even if she was, [L.C.'s] at a[r]espite home. She's in foster care. She's outside of her comfort zone. She's not with Pam. She's not with her caregiver.
“She's in a place where there's other people that she doesn't necessarily know all that well. The only person she was remotely familiar with was Brenda Davis and only because she'd stayed with her godmother at one point.
“But, remember, Brenda Davis couldn't even get her name right. She tells Officer Seal it's Letisha. She comes in and tells you-she thought it was Liandra. Her name is [L.C.] and she is deserving of your consideration.”
The jury found Davis guilty of aggravated criminal sodomy.
Davis filed a pro se motion for a new trial. In his motion, Davis alleged that his attorney had provided inadequate assistance in several respects. The district court denied Davis' motion for new trial, finding that it “fails in all respects.” The district court found that “[t]here [was] not one area in the trial of this case, pretrial or the actual trial itself, that this court felt the defendant was not getting adequate ... defense of his substantial criminal rights.”
The district court sentenced Davis to 155 months in prison. Davis then appealed to this court.
Analysis
On appeal, Davis has pursued three claims: (1) that the prosecutor committed misconduct in closing argument, (2) that his trial attorney provided inadequate assistance in several respects, and (3) that cumulative errors made by the district court denied him of a fair trial.
I. The Prosecutor Did Not Commit Misconduct When She Told the Jury in Closing Arguments That L.C. Was “Deserving of Your Consideration.”
A claim of prosecutorial misconduct based on comments made during closing argument that are not evidence will be reviewed on appeal even when a contemporaneous objection was not made at the trial level. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). But a contemporaneous objection must be made to all evidentiary claims—including questions posed by a prosecutor and responses to those questions—to preserve the issue for appellate review. 288 Kan. at 349. “No prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel.” State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009).
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011).
In the second step of the two-step analysis, the appellate court considers three factors: “ ‘(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of jurors. None of these three factors is individually controlling.’ “ 291 Kan. at 715 (quoting State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 [2008] ). Under State v. Ward, 292 Kan. 541, 256 P .3d 801 (2011), the third factor now requires the State to show that that there is no reasonable possibility that the error affected the defendant's substantial rights, i.e., that there is no reasonable possibility the error affected the verdict. State v. Chanthaseng, 293 Kan. 140, 149, 261 P.3d 889 (2011) (citing State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 [2011];State v. Hall, 292 Kan. 841, 855, 257 P.3d 272 [2011] ).
Davis argues that the State's reference to Brenda's confusion about L.C.'s name and the statement that “[h]er name is [L.C.] and she is deserving of your consideration” diverted the jury's attention from the facts and elements of the crime and inflamed the jury's passions.
Even though no objection was made, the State's comment during closing argument is reviewable on appeal. See King, 288 Kan. at 349. Contrary to the State's assertions, Davis does not argue that the questioning of Brenda itself amounted to misconduct. Instead, the discussion of Brenda's questioning in Davis' brief merely provides context to the comments at closing argument.
As to the first step of the prosecutorial-misconduct analysis, “a prosecutor crosses the line of appropriate argument when a remark is intended to inflame the jury's passions or prejudices or when the remark diverts the jury's attention from its duty to decide the case on the evidence and controlling law.” State v. Miller, 293 Kan. 535, 551, 264 P.3d 461 (2011) (citing State v. Adams, 292 Kan. 60, 67, 253 P.3d 5 [2011] ). But the court may consider whether the remark was provoked or made in response to defense counsel's remarks. 293 Kan. at 551. In Miller, the defendant challenged a statement during closing argument asking the jury to think about how the 4–year–old victim of a sex crime must have been frightened when an adult began to touch her. But the court held that the statement was an appropriate response to defense counsel's arguments that the crime would have been noticed by the mother of the victim. 293 Kan. at 552.
As the State observes, the statement at issue was made on rebuttal after Davis argued that if L.C.'s story were true, she would have told Brenda. The fact that Brenda couldn't remember L.C.'s name was relevant to explain why L.C. might have felt uncomfortable speaking to anyone in that apartment. What's not clear, however, is how the statement that L.C. “is deserving of your consideration” constituted a comment on the evidence rather than an appeal to passion.
But even if the comment were found to be improper, we would find no reversible error at step two of the two-step analysis. The remark claimed as improper was an isolated one within the context of the overall trial, not an indicator of the prosecutor's ill will and certainly not gross or flagrant misconduct. In addition, we are firmly convinced that there is no reasonable possibility that providing L.C.'s correct first name and saying one time that she “is deserving of your consideration” had any impact on the jury's verdict. L.C. disclosed the sexual abuse once she was with a trusted caretaker, she correctly described the defendant's underwear, and she gave consistent reports about the incident throughout multiple interviews and in her trial testimony. We find no reversible error from this single statement made by the prosecutor during closing argument.
II. Davis Did Not Receive Ineffective Assistance of Counsel.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Consequently, the appellate court “reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
On an ineffective-assistance-of-counsel claim, the defendant has the burden to show:
“(1) that the attorney's work was below minimum standards and, thus, was constitutionally deficient; and (2) that the attorney's substandard work prejudiced the defense. The second part of the test ordinarily requires showing a reasonable probability that the result of the trial would have been different but for the attorney's inadequate work.” Mattox v. State, 293 Kan. 723, 725–26, 267 P .3d 746 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Harris, 288 Kan. 414, Syl. ¶¶ 2–3).
These two parts of the Strickland test are often referred to as the performance prong and the prejudice prong. 293 Kan. at 726 (citing Kargus v. State, 284 Kan. 908, 917, 169 P.3d 307 [2007] ).
There is a strong presumption that counsel's conduct fell within the broad range of reasonable professional assistance. See Harris, 288 Kan. at 416. If counsel has made a strategic decision after thoroughly investigating the law and the facts relevant to the realistically available options, then counsel's decision is virtually unchallengeable. Strategic decisions made after a less-than-comprehensive investigation are reasonable exactly to the extent that a reasonable professional judgment supports the limitations on the investigation. Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009) (quoting State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 [2004] ). To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. State v. Bricker, 292 Kan. 239, 246, 252 P.3d 118 (2011) (citing Gleason, 277 Kan. at 644).
On appeal, Davis pursues five claims of ineffective assistance of counsel. In each case, even if Davis' attorney provided inadequate assistance in some respect, Davis has totally failed to show prejudice. Because the district court found that Davis' attorney provided appropriate assistance, we must take the facts in the light supportive of that conclusion so long as substantial evidence supports it. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009) (appellate courts review the trial court's findings of fact to determine if the findings are supported by substantial evidence); Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006) (appellate courts generally presume the trial court found all facts necessary to support its judgment).
Failure to Subpoena Foster Children
Davis claims that Sedgwick should have obtained the names of and subpoenaed the foster children who were present on the date of the incident because “[t]hey may have seen or heard something.” Davis asserts that the failure to do so shows that Sedgwick did not reasonably investigate the case, which amounts to ineffectiveness. But Sedgwick testified that he asked for the foster children's names from both Brenda and John Davis, and neither could provide the names prior to trial. Thus, Sedgwick's conduct did not fall below minimum standards here.
Even if Sedgwick's investigation into the foster children was not comprehensive, the children's lack of availability and the unlikely chance they would provide relevant evidence made Sedgwick's decision not to investigate further a “reasonable professional judgment.” See Rowland, 289 Kan. at 1083–84. Furthermore, Davis did not provide specifics of any relevant evidence the children would have provided. Neither L.C.'s nor Davis' testimony indicated anything that a child would have overheard or overseen.
Failure to Interview People in the Apartment Building
Similarly, Davis claims that Sedgwick should have interviewed other tenants in the apartment building because they were potential witnesses who may have had exculpatory evidence. Sedgwick testified that Davis never asked him to interview other tenants before trial.
Sedgwick's performance did not fall below minimum standards here, either. Sedgwick had good reason to believe it would be fruitless to interview the other tenants. Because the alleged crime occurred in a private room and Davis admitted to being in the apartment that day, any tenant's testimony would likely be irrelevant or cumulative. Sedgwick made a reasonable decision not to interview them, especially when Davis did not request him to do so before trial. Moreover, as with the foster children, Davis did not indicate what type of evidence helpful to his case these witnesses could have provided.
Failure to Argue that the Jail Wristband Should Have Been Removed
Davis claims that Sedgwick should have requested that Davis be allowed to remove or hide his red wristband, which signified that he was in jail. At one point in the trial, a detective asked to identify Davis described him as “[t]he gentleman in gray over there at the table with the red bracelet on.” Davis asserts that the wristband “could have” prejudiced the jury against him and denied him a fair trial. Sedgwick testified that he did not even notice the wristband.
Sedgwick's overlooking the wristband was not deficient performance. The wristband was only mentioned once, briefly, during trial, and there is no evidence that any jurors even associated the wristband with the county jail. Davis never asked to remove the wristband, and there is no indication that the wristband was large or conspicuous. But even if Sedgwick should have asked for the wristband's removal, Davis certainly cannot show prejudice. This is far different than cases in which a defendant was shackled in court or seen by jurors outside the courtroom in shackles. See, e.g., State v. Race, 293 Kan. 69, 82–84, 259 P.3d 707 (2011). There is absolutely no indication that the wristband affected the trial at all, much less that it would have changed the result.
Failure to Obtain the Preliminary Hearing Transcript in a Timely Manner
Davis insists that Sedgwick's failure to obtain and review the preliminary hearing transcript in a timely manner amounted to ineffectiveness. Davis further claims that because he could not review the transcript himself until the day of trial, he was not able to aid in his own defense. But the transcript was not long, and there were no significant differences between it and the trial testimony. Again, Davis cannot indicate how an earlier review of the transcript would have helped him at trial. Thus, we conclude that Sedgwick's performance in this area was not deficient. There is no reason why Sedgwick couldn't have adequately reviewed the transcript 3 days before trial or why Davis couldn't have adequately reviewed the transcript on the day of trial.
Failure to Give Davis Copies of Discovery
Finally, Davis claims that Sedgwick did not give him copies of “the discovery.” Because Davis claims he could not review the discovery that Sedgwick had access to, Davis insists he was unable to aid in his defense. Sedgwick admitted that Davis may have requested copies of these materials. But Sedgwick was bound by a standard agreement with the State in which he received a complete copy of the State's file in exchange for not providing copies to Davis. Sedgwick was still allowed to discuss the file completely with Davis, and he testified that he had spent several hours reviewing the file with Davis the weekend before trial.
Because Sedgwick extensively reviewed the file with Davis, his performance was not deficient despite not providing personal copies to Davis. Davis cannot point to any specific reason why having personal copies of any part of the State's file would have led to better preparation of his defense at trial.
Conclusion
Davis has not shown that Sedgwick's performance was constitutionally deficient on any of his five claims, nor has he shown any prejudice. Therefore, Davis has not demonstrated ineffective assistance of counsel.
III. Cumulative Errors Did Not Deny Davis a Fair Trial.
Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. State v. Edwards, 291 Kan. 532, Syl. ¶ 12, 243 P.3d 683 (2010). But we have not found an error; we accordingly find no cumulative error.
The district court's judgment is affirmed.