Opinion
111,356.
02-27-2015
STATE of Kansas, Appellee, v. Johnny DAVIS, Appellant.
Joel Rook, of Kansas City, for appellant. Adam Y. Zentner, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Joel Rook, of Kansas City, for appellant.
Adam Y. Zentner, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Johnny Davis appeals his convictions and sentences for driving while suspended and fleeing or attempting to elude a police officer. Davis argues: (1) the complaint was defective; (2) the district court lacked subject matter jurisdiction; (3) his due process rights were violated because he was not first tried in municipal court; (4) he did not receive a fair trial because the district court and prosecutor should have recused themselves; (5) the district court erred by admitting his driving record; (6) the district court erred by allowing him to be escorted from the jail door to the courtroom in the presence of the jury; (7) the district court erred by permitting a rebuttal witness; and (8) the district court erred in denying his motion for a new trial. We affirm in part and dismiss in part.
The State charged Davis with driving while suspended, a third or subsequent conviction, in violation of K.S.A.2013 Supp. 8–262 ; fleeing or attempting to elude a police officer, in violation of K.S .A.2013 Supp. 8–1568 ; and failure to signal, a traffic infraction. The charges stem from an April 25, 2013, incident within the city limits of Leavenworth, in Leavenworth County.
At the jury trial, Leavenworth police officer Ted Glass testified that he saw Davis driving on Marion Street. Glass was sitting in his marked patrol car about 20 to 30 feet away, with an unobstructed view. Glass had known Davis for approximately 1 1/2 to 2 years and was aware that Davis' driving license was suspended. Glass activated his patrol car's overhead lights and siren and pulled behind Davis in order to make a traffic stop for driving while suspended. Davis then accelerated, making a series of turns until he reached an alleyway that took him back to Marion Street. Glass described Davis as driving at a “high rate of speed” in an area where the speed limit was 30 miles per hour. Glass saw Davis turn into an alleyway, where Davis abandoned the car behind some businesses and fled on foot. Other officers searched the car and found a cell phone on the front passenger seat and mail addressed to Davis on the backseat. The State admitted Glass' patrol car video recording into evidence without objection.
Sergeant Christopher Nicholson of the Leavenworth Police Department testified that he arrived at the location where Officer Glass had found the car and seized the cell phone. Nicholson called the cell phone using a telephone number that he had used to call Davis about an unrelated event from 5 days earlier. When Nicholson called Davis' phone number, the seized cell phone rang.
Davis called two witnesses to testify in his defense. His cousin, Charles Dalton, testified that Davis sometimes let him and other people drive his car. Christopher Berman, also related to Davis, testified that he drove Davis around if he needed to go somewhere. Berman also testified that he did not know if Davis let anyone else drive his car.
After the defense rested, the State recalled Officer Glass as a rebuttal witness. Davis objected, but the district court overruled Davis' objection. Officer Glass testified that neither Dalton nor Berman were driving Davis' car when the incident occurred and that Davis was the sole occupant of the car.
At the jury instruction conference, the district court directed a verdict of acquittal on the improper turn charge after finding that the State had presented no evidence to support the charge. After due deliberations, the jury found Davis guilty of the other charges.
Davis filed a letter with the district court 13 days later on November 6, 2013, requesting “a new trial” because the State failed to provide discovery of the patrol car video admitted at trial. Davis also claimed that his trial counsel told him there was no video evidence. The district court appointed Davis new counsel, who filed a motion for a new trial on December 10, 2013, alleging Davis was prevented from adequately viewing video evidence prior to trial. A month later, on January 10, 2014, newly appointed counsel filed a second motion for a new trial that alleged numerous grounds not asserted in the original motion for a new trial. In addition to Davis' prior allegations regarding the video evidence in the first motion, the second motion for a new trial alleged the evidence was insufficient, the district court lacked jurisdiction, and his trial counsel provided ineffective assistance by not seeking a continuance and not impeaching Berman's false testimony.
At an evidentiary hearing before sentencing, the district court heard testimony from both Davis and his trial counsel. The district court denied Davis' motion for a new trial, concluding that Davis failed to establish sufficient grounds for a new trial on any of his issues. The district court imposed concurrent 12–month sentences for each conviction.
Davis raises numerous issues on appeal. First, Davis challenges the subject matter jurisdiction of the district court by arguing the complaint was defective and the municipal court had jurisdiction over his case, not the district court. Then, Davis expands on his jurisdictional challenges by claiming his due process rights were violated because his case was not tried at the municipal court level first and that the district court's and prosecutor's failure to each recuse themselves denied his right to a fair trial. Next, in challenging his convictions, Davis argues the district court erred by allowing the State to introduce his driving record, having him escorted from the jail door to the courtroom in the presence of the jury, and permitting Officer Glass to offer rebuttal testimony. Finally, Davis seeks review of these issues raised in his separate posttrial motions for a new trial denied by the district court. We address each issue in turn.
Defective complaint
For the first time, Davis disputes the sufficiency of the complaint based on the statutory interpretation of the word “highway” as used in K.S.A.2013 Supp. 8–262.
Whether a complaint confers subject matter jurisdiction is a question of law over which an appellate court has unlimited review. State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009). And in cases in which appellate courts are called upon to interpret a statute, this court has unlimited review over a question of law. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
The test used to evaluate the sufficiency of the charging document depends upon when the issue was first raised. Gonzales, 289 Kan. at 368. In State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), the court adopted a common-sense rule for cases raising a defective complaint or information claim for the first time on direct appeal. See State v. McElroy, 281 Kan. 256, 261–62, 130 P.3d 100 (2006). To succeed, the defendant must show that the alleged defect either: (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial. State v. Tapia, 295 Kan. 978, 984–85, 287 P.3d 879 (2012).
Davis was charged with violating K.S.A.2013 Supp. 8–262(a)(1), which provides: “Any person who drives a motor vehicle on any highway of this state at a time when such person's privilege so to do is canceled, suspended or revoked ... shall be guilty of ... a class A nonperson misdemeanor on the second or subsequent conviction.” (Emphasis added.)
Davis argues that he could not be convicted of violating K.S.A.2013 Supp. 8–262 because the statute only applies to any person who drives a car on a highway of this state, whereas he was driving on a city street. In doing so, Davis makes no arguments that address the Hall standards. An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P .3d 680 (2013). Regardless, a plain reading of the statute precludes the necessity of this court addressing the post-Hall standards.
When language is plain and unambiguous, there is no need to resort to statutory construction. See State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). Here, K.S.A.2013 Supp. 8–262 is part of the Motor Vehicle Drivers' License Act, K.S.A. 8–234 et seq. Turning to the definitions applicable to this Act—see K.S.A.2013 Supp. 8–234a(b), K.S.A. 8–1424 defines “highway” as “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Davis does not dispute he was driving on a city street in Leavenworth. Consequently, Davis was clearly in violation of K.S.A.2013 Supp. 8–262 since the car was being driven upon a highway of this state.
Subject matter jurisdiction
Next, Davis challenges the district court's jurisdiction by arguing that he should have been tried in municipal court, not district court, because the traffic violation occurred within the city limits of Leavenworth. Davis raised this issue in an untimely motion for a new trial. However, subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010).
Whether jurisdiction exists is a question of law subject to unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
Davis cites no authority for his position that the municipal court had exclusive jurisdiction over misdemeanor traffic violations. At the hearing on Davis' motion for a new trial, the district court found that it “obviously” had jurisdiction because the act occurred in Leavenworth County. We agree.
“[P]rosecution shall be in the county where the crime was committed.” K.S.A. 22–2602. The statutes outlining the jurisdiction of municipal and district courts, K.S.A. 20–301 and K.S .A.2013 Supp. 12–4104 respectively, clearly intend for a city and the State to have concurrent jurisdiction over offenses that constitute violations of both a city ordinance and a state statute. See State v. Frazier, 12 Kan.App.2d 164, Syl. ¶¶ 1–2, 736 P.2d 956 (1987). In fact, during the evidentiary hearing Davis acknowledged that the district court and municipal court have “concurrent jurisdiction.”
The district court of Leavenworth County had jurisdiction.
Procedural due process
Davis, for the first time on appeal, attempts to frame his jurisdictional argument as supporting constitutional grounds for reversal. Davis argues that “the state and courts have violated his constitutional right to due process by not allowing him to try the case first in municipal court then appeal his conviction to district court.”
An appellate court exercises unlimited review when the gravamen of a defendant's complaint concerns a constitutional due process challenge. State v. Wade, 284 Kan. 527, 534, 161 P.3d 704 (2007).
Davis' procedural due process claim is not properly before this court. And even if the question could be reached, we find the record inadequate to address the question.
Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Moreover, a party raising a constitutional issue for the first time on appeal must satisfy one of three recognized exceptions to the general rule. State v. McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012). Those three exceptions to the rule are:
“(1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.” State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Also, Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 41) provides that if an issue was not raised in district court, “there must be an explanation why the issue is properly before the court.” In State v. Williams, 298 Kan. 1075, 1085–86, 319 P.3d 528 (2014), the Kansas Supreme Court recently clarified:
“[W]e are unwilling to ignore the rule's plain language. Future litigants should consider this a warning and comply with Rule 6.02(a)(5) by explaining why an issue is properly before the court if it was not raised below—or risk a ruling that an issue improperly briefed will be deemed waived or abandoned. [Citations omitted.]”
While Davis expressed dissatisfaction with the district court exercising jurisdiction in the case of an offense that occurred within the city limits, he never argued below that his due process rights were violated. Davis also does not acknowledge his failure to raise his due process argument below or attempt to satisfy one of the three recognized exceptions to the general rule. See McCullough, 293 Kan. at 998. Moreover, Supreme Court Rule 6.02(a)(5) has been in effect long before Williams' explicit reminder and Davis' appeal in this case. See, e.g., State v. Johnson, 293 Kan. 959, 964–65, 270 P.3d 1135 (2012), where the court declined to address several issues due to the failure to explain why the issues should be considered for the first time on appeal. And Davis clearly filed his appellate brief in this case after Williams was published. In light of Williams, Davis' issue is not properly before us.
Even if this issue was properly before us, we find no basis to consider any of the possible three Phillips exceptions or the merits of Davis' issue.
Davis relies on the following factual assertion to support his due process argument:
“[W]hile this case was pending in municipal court, [Davis] allegedly made a threatening statement to the judge who presided over this case at that time, and [Davis] was therefore charged with felony criminal threat, and then the original presiding judge recused himself and this case was dismissed from municipal court and refiled in district court.”
There is no record of the factual allegations occurring at the municipal court. Moreover, Davis concedes the record does not support the facts he relies upon. The party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error. McCullough, 293 Kan. at 999. Consequently, we find the record inadequate to determine whether Davis' due process rights were violated.
Recusal
Along the same path, Davis argues for the first time on appeal that he did not receive a fair trial. He reasons that his purported threat directed at the municipal court judge was an “indirect threat” to the district court or Leavenworth County. From this, Davis contends the district court was not “impartial” and the Leavenworth County prosecutors had “a conflict of interest.” Davis then surmises that “the Leavenworth County prosecutors and municipal and county judges should have recused themselves since they could not evenhandedly handle his case and he did not receive fair treatment.” Davis claims that their recusal “could have resulted in [him] being tried in municipal court, by an impartial prosecutor and judge.”
Davis again has failed to raise this argument below and does not attempt to satisfy Rule 6.02(a)(5) by explaining why any one of the three recognized exceptions to the general rule preventing him from raising this issue for the first time on appeal apply. See Williams, 298 Kan. at 1085–86. Moreover, the record contains no guidance putting Davis' argument in context because at no time did Davis file a motion seeking a change of trial judge under K.S.A. 20–311d or a motion seeking to disqualify the Leavenworth County District Attorney's Office. Davis admits in this appeal that his allegations he uses to support his demand to disqualify the prosecutor and judge are not in the record. Consequently, we decline to address whether Davis' substantial rights to a fair trial were violated, and we find the record inadequate to address such a question.
Driving record
Moving to Davis' three challenges to his convictions, we first address his evidentiary issue concerning the district court admitting a copy of Davis' redacted certified driving record containing his underlying driving suspensions.
Davis frames this issue as: “Whether it is illegal for the State to introduce a criminal (traffic) defendant's driving record of having a suspended license as evidence at trial in a driving while suspended case [third offense].” Davis does acknowledge that evidence of prior crimes can be admissible under K.S.A.2013 Supp. 60–455 when relevant to prove a material fact. See State v. Gunby, 282 Kan. 39, 62–63, 144 P.3d 647 (2006). However, Davis contends that his redacted driving record “may have included evidence of multiple drivers license suspensions, from which the jurors could infer multiple crimes of driving while suspended, which thereby was irrelevant to this case and unduly prejudicial.”
Though not stated, Davis appears to be suggesting that the State allegedly introduced the redacted driving record to prove his disposition to commit the crime of driving while suspended, in violation of K.S.A.2013 Supp. 60–455. Regardless, this issue is not properly before us. K.S.A. 60–404 generally precludes an appellate court from reviewing an evidentiary challenge “unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” State v. Holman, 295 Kan. 116, 126, 284 P.3d 251 (2012).
Davis did not comply with K.S.A. 60–404. At the pretrial conference, the district court asked trial counsel whether he had any objection to the State submitting a full copy of Davis' certified driving record to the district court but a redacted version to the jury that only showed his underlying suspensions. Trial counsel responded, “[N]ot to the redacted one.” Prior to the jury entering, the district court asked trial counsel a similar question as the State moved to admit the redacted driving record and Davis' trial counsel responded that he had no objection. Accordingly, because Davis failed to specifically and contemporaneously object at trial to the admission of his redacted driving record, Davis failed to preserve this issue for appellate review. See K.S.A. 60–404.
Mistrial
Next, Davis claims that the jury pool was prejudiced by seeing him being escorted into the courtroom from the jail door. Davis argues that this prejudice violated his right to a fair trial. For support, Davis points to K.S.A. 22–3423(1)(c), which provides the district court the authority to order a mistrial, if necessary, when prejudicial conduct makes it impossible to proceed without injustice to the defendant.
This court would normally review a motion for a mistrial under an abuse of discretion standard. State v. Harris, 293 Kan. 798, 814, 269 P.3d 820 (2012). But Davis is raising this issue for the first time on appeal. Davis never moved for a mistrial in the district court and did not raise this issue in any of his motions for a new trial.
Generally, issues not raised before the trial court—even an issue raising a constitutional question—cannot be raised on appeal. Phillips, 299 Kan. at 493. In making his argument for the first time on appeal, Davis makes no effort to satisfy Rule 6.02(a)(5) or assert any one of three recognized exceptions to the general rule preventing him from raising this issue for the first time. See Williams, 298 Kan. at 1085–86. Consequently, in light of Williams, we decline to address this issue.
However, even if we were to decide appellate review can happen under the second preservation exception (to serve the ends of justice or to prevent the denial of fundamental rights), we are presented with no factual basis to consider the merits of this issue. Davis repeatedly acknowledges, and we agree, that there is no record to support his contention that “he was escorted from the jail door into the courtroom, in the presence of the jury pool, on the morning of trial.” Davis has failed to designate a record to support his claim; without such a record, the claim of prejudicial error fails. See McCullough, 293 Kan. at 999.
Rebuttal witness
Davis also claims the district court erred by allowing Officer Glass to be recalled as a rebuttal witness. Rebuttal evidence is limited to issues placed in conflict by the adverse party. The use and extent of rebuttal rests in the sound discretion of the district court. State v. Drach, 268 Kan. 636, Syl. ¶ 5, 1 P.3d 864 (2000). Judicial discretion is abused if the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Sampson, 297 Kan. 288, 292, 301 P.3d 276 (2013). Moreover, a district court's erroneous admission of rebuttal evidence will not be reversed unless discretion has been abused to a party's prejudice. Drach, 268 Kan. 636, Syl. ¶ 5.
This issue arose when the State called Officer Glass to give rebuttal to Dalton's and Berman's testimony during Davis' presentation of his defense. The State had previously presented Officer Glass' testimony during its case-in-chief, and the district court had excused him, telling him he was free to go. Davis objected to Officer Glass being recalled “[b]ecause he'd already been excused and now he's being called as a rebuttal and he saw all the testimony and he should have been sequestered.” The district court, in overruling the objection ruled, “[T]he Court excused [Officer Glass], allowed him to stay. He can be recalled.”
Davis cites no authority, and we find none, to support his conclusory statement that once a State's witness is released and free to go, the witness must be sequestered from hearing the defense's witnesses. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). Moreover, a point raised incidentally in a brief and not argued therein is also deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013).
Davis seems primarily concerned with his belief that Officer Glass' rebuttal testimony was prejudicial cumulative testimony.
Rebuttal evidence is evidence that contradicts evidence introduced by the opposing party. State v. Flournoy, 272 Kan. 784, 805, 36 P.3d 273 (2001). However, rebuttal evidence that is merely cumulative should not be admissible. As this court recently explained:
“ ‘Rebuttal is not intended to give a party an opportunity to tell one's story twice. Thus, rebuttal should not be used to corroborate, further develop, or repeat the plaintiff's case in chief. Evidence which is merely cumulative, adding nothing further to the position taken by previous witnesses, that merely bolsters or supplements that already adduced by the plaintiff, is not admissible as rebuttal.’ [Citation omitted.]” Tremain v. Evans, No. 106,739, 2012 WL 6634396, at *7 (Kan.App.2012) (unpublished opinion), rev. denied 291 Kan. 1257 (2013).
Neither Dalton nor Berman testified to driving the car at the time of the incident. Their testimony that Davis would, from time to time, lend them his car to drive implied that either one of them might have been driving when the incident occurred. When Officer Glass testified on rebuttal, he admitted to observing Dalton and Berman testify and simply clarified that neither one of them was driving the car. Davis' challenge of Officer Glass' rebuttal testimony reflects a misunderstanding of rebuttal evidence. “ ‘Rebuttal evidence ... may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party.’ [Citation omitted .]” State v. Broyles, 272 Kan. 823, 841, 36 P.3d 259 (2001). Davis has made no effort to show Officer Glass' testimony was not proper. The district court did not abuse its discretion in overruling Davis' objection. See Flournoy, 272 Kan. at 805.
Motion for a new trial
We next address Davis' argument that the district court erred by denying his motion for a new trial. In response, the State argues this court lacks jurisdiction to consider the issues Davis raised in his motion because it was untimely under K.S.A.2013 Supp. 22–3501(1). Davis did not file a reply brief. See Supreme Court Rule 6.05 (2014 Kan. Ct. R. Annot. 48).
Generally, appellate courts review the trial court's decision to grant or deny a motion for a new trial for an abuse of discretion. State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85 (2012). However, the State's claim that Davis' motion for a new trial was untimely under K.S.A.2013 Supp. 22–3501(1) involves statutory interpretation-a question of law over which this court has unlimited review. See Dale, 293 Kan. at 662. Furthermore, as mentioned, the question whether jurisdiction exists is subject to unlimited review. Berreth, 294 Kan. at 109.
K.S.A.2013 Supp. 22–3501(1) governs motions for a new trial and states in relevant part:
“(1) The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 14 days after the verdict or finding of guilty or within such further time as the court may fix during the 14–day period.”
The Kansas Supreme Court recently addressed the 14–day time limit set out in K.S.A.2013 Supp. 22–3501(1) and concluded that the deadline is mandatory, not discretionary. State v. Holt, 298 Kan. 469, 473–79, 313 P.3d 826 (2013). A defendant filing a motion for a new trial on grounds other than newly discovered evidence must do so within the 14–day period after the verdict or finding of guilty or the motion is untimely. 298 Kan. at 479. Our Supreme Court explained: “A plain reading of [K.S.A.2013 Supp. 22–3501(1) ] requires that any extension be granted within the 14–day period following the verdict or finding of guilty.” 298 Kan. at 479.
Here, the jury found Davis guilty on October 24, 2013. The State points out that Davis did not file a motion for a new trial until December 10, 2013, “approximately 47 days after the verdict.” In doing so, the State fails to acknowledge that Davis filed a letter within the statutorily required 14–day period seeking a new trial for the very same reasons his newly appointed counsel reiterated in the motion for a new trial filed on December 10,2013.
Appellate courts must liberally construe pro se pleadings to give effect to the content rather than rely on the form or labels used in the pleading. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). Because Davis clearly asked for a new trial in his letter filed November 6, 2013, we construe his letter as a timely pro se motion for a new trial under K.S.A.2013 Supp. 22–3501(1). Under Holt, the district court here had jurisdiction to consider Davis' allegation that he did not have proper access to the video evidence that both his trial counsel and the State allegedly told him did not exist, despite his trial counsel purportedly receiving the video well in advance of trial. This conclusion does not resolve whether the district court acquired jurisdiction to rule on the supplemental motion for a new trial filed on January 10, 2014.
Clearly, the second posttrial motion for a new trial Davis filed on January 10, 2014, was not filed within the statutory deadline. However, a defendant can challenge the sufficiency of the evidence on appeal irrespective of whether he or she raised that issue in a timely motion for a new trial. Moreover, as mentioned above in our finding that the district court did have subject matter jurisdiction in this case, Davis can challenge subject matter jurisdiction at any time. See Sales, 290 Kan. at 135. Consequently, we are left to decide whether the district court lacked jurisdiction to consider Davis' three allegations of ineffective assistance of counsel filed approximately 2 1/2 months after trial.
The record indicates that when trial counsel was asked at the evidentiary hearing why he was withdrawn from the case, trial counsel explained:
“[Davis] had asked for new counsel because we had a disagreement over the substance of the motion for new trial. I ... did not believe that there were significant enough issues to raise those kind of issues in motion for new trial. And Mr. Davis felt that there was a conflict of interest ... and Judge Asher appointed new counsel ... on [Davis']motion for new trial.”
However, the record does not show that Davis or trial counsel filed a request for an extension of the 14–day period ending November 7, 2013, to resolve such purported differences or, due to a conflict of interest, allow Davis to confer with new counsel to clarify the issues he sought to raise in a motion for a new trial. Moreover, newly appointed counsel similarly did not attempt to seek an extension of the deadline under K.S.A.2013 Supp. 22–3501(1), choosing instead to file the December 10, 2013, motion for a new trial limiting its allegations to the single issue from the pro se motion. Nor did newly appointed counsel file a motion for leave to supplement the motion for a new trial prior to filing the second motion for a new trial on January 10, 2014—a month after filing the first motion.
Under these circumstances, Holt controls. Davis' claim of ineffective assistance in his supplemental motion that trial counsel failed to seek a continuance and effectively cross-examine a witness was untimely. The district court lacked jurisdiction to consider those allegations. Consequently, this court does not have jurisdiction to review those allegations on appeal. If the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
Accordingly, we dismiss that portion of Davis' claim that the district court erred by denying his second motion for a new trial.
Video evidence
Turning to the merits of Davis' motion for a new trial, we consider his argument regarding the video evidence from Officer Glass' patrol car.
Davis argues his trial counsel was ineffective for not giving him an opportunity to review the video evidence before trial. Davis alleges he only learned of the video evidence on the day of trial and had based his decision not to testify on being told there was no video evidence. Davis argues that “[trial] counsel not showing him the video before the trial is deficient performance, and that [he] was prejudiced by this since he would have testified had he known there was a police video.”
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Consequently, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. State v. Cheatham, 296 Kan. 417, 430, 292 P .3d 318 (2013).
To establish ineffective assistance of counsel, the defendant must establish (1) that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution; and (2) that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. 296 Kan. at 431. To establish prejudice, the defendant must show a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different, with reasonable probability meaning a probability sufficient to undermine confidence in the outcome. 296 Kan. at 431.
As a preliminary matter, we must address Davis' factual assertion implying the State committed misconduct.
To support his ineffective assistance argument, Davis repeatedly asserts: “At the pretrial conference held on October 23, 2013, [Davis] asked if there were any videos in this case and the prosecutor replied that there was no video.” The record indicates that the State argued at the evidentiary hearing that “the discovery materials were provided to the defense in ... June 2013.” And while trial counsel did not testify when he received the video evidence, the record shows that the order for reciprocal discovery was filed on June 12,2013.
While Davis at no point has argued the State suppressed the video evidence, by accusing the State of specifically telling him prior to trial there was no video evidence, Davis is clearly attempting to convey that the State was complicit in his trial counsel's failure to inform him of the video evidence. However, this accusation of misconduct is baseless. Davis' appellate counsel blatantly misstates the record. At the pretrial conference Davis asked, “There's no video in this case either?” To which the State responded, “No, there is video. ” (Emphasis added.) Davis' question phrased in the negative essentially asked for confirmation of something he believed to be true, which the State dispelled with an affirmative response. The State clearly told Davis the day before trial that there was video evidence.
At the evidentiary hearing, trial counsel testified that he reviewed the video evidence on the trial iPad with Davis a couple of times in the morning before the jury was impaneled. Trial counsel clarified that when he evaluated the video evidence, “[I]t looked to me like you couldn't really tell who was driving the car. If I thought that the video had indicated that it clearly was Mr. Davis, I would have asked for a continuance of the trial.” Moreover, trial counsel stated that he did not view the video evidence significant to the case and that, as a tactical consideration, the poor quality could have helped his case had it not been for Officer Glass' testimony identifying Davis as the driver. In contrast, Davis testified that trial counsel never told him about the video evidence and that he never viewed the video until it was shown at trial. When questioned by the district court, Davis agreed with the district court's conclusion that the video did not show Davis was driving and that it looked like the officer was in pursuit.
In denying Davis' motion for a new trial, the district court acknowledged there was evidence to support access to the video evidence prior to trial but found the conflicting testimony as to whether Davis had viewed the video evidence irrelevant from a factual standpoint. The district court ruled that even had Davis not watched the video evidence, it “does [not] view the video as being that crucial of an element because, again, you could not identify the driver from the video. It ... was impossible to see who was driving that car from the video.” We agree.
Even if we find trial counsel's performance had been deficient for not providing Davis access to the video evidence prior to trial, Davis still cannot establish prejudice when even he conceded the video evidence does not show who was driving the car. See Cheatham, 296 Kan. at 431. After viewing the video evidence, we concur that there is no visible indication of who the driver was. Though not mentioned by either party, we do note that in the audio portion of the video, Officer Glass mentions Davis' name to dispatch as the driver of the car he was pursuing. However, given that Officer Glass testified to the same, this does not change our conclusion that Davis has not shown that the outcome of the trial would have been different had he viewed the video prior to trial and elected to testify. The district court correctly denied Davis' motion for a new trial on this issue.
Sufficiency of the evidence
Finally, regarding the sufficiency of evidence, Davis makes the general assertion that there was insufficient evidence to find him guilty of both charges because “Dalton testified that he himself had been driving [Davis'] car and that [Davis] was a passenger in the car on the day in question.”
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. See State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
Davis' appellate counsel misstates the record. At no point during the trial did Dalton testify that “on the day in question” he was the individual driving Davis' car while attempting to elude the police or that Davis was a passenger while this occurred. Dalton only testified that Davis let him and others use his car and that he would sometimes drive Davis when he needed to do errands.
Even if Dalton had testified as Davis purports, such testimony would not be determinative of the lack of evidence to support Davis' guilt because we would be faced with reweighing the evidence, which this court does not do. See Hall, 292 Kan. at 859. As the district court pointed out in addressing this issue when denying Davis' motion for a new trial, “the officer identified Mr. Davis and it was up to the jury as to whether [it] believed him or didn't believe him.”
The record indicates that Officer Glass clearly identified Davis at trial as the driver of the car that attempted to flee and elude him once he activated his emergency lights and siren to pull the car over. And Davis does not dispute it was his car or that his driving license was suspended on the date this incident occurred. Sufficient evidence existed to convict Davis. The district court did not err in denying Davis' motion for a new trial on this basis.
Affirmed in part and dismissed in part.