Opinion
No. 109321.
2015-01-23
STATE of Kansas, Appellee, v. Robert QUINN, Appellant.
Appeal from Wyandotte District Court; Ernest Johnson, Judge.Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.Logan McRae, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Ernest Johnson, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Logan McRae, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Robert Quinn of one count of rape, and the district court sentenced him to 272 months of imprisonment followed by lifetime postrelease supervision. Quinn appeals from his convictions and sentence on five grounds: The district court erred when it denied his request for a continuance of trial to obtain testing of the urine and/or blood sample of the victim; the prosecutor committed misconduct during closing arguments; the district court erred in denying his first motion for new trial based upon ineffectiveness of trial counsel; the district court erred when it denied his second motion for new trial based upon newly discovered evidence; and the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history to enhance his sentence. We find no basis for reversal in any of the arguments and affirm.
Facts
We set out the facts in some detail to provide a clear understanding of the issues on appeal. We begin at approximately 2 a.m. on November 10, 2010, when Officer Charles Stanturf of the Kansas City, Kansas Police Department (KCKPD) was dispatched to the University of Kansas Hospital (KU Med Center) on a rape report. Upon arriving at the hospital, he encountered V.R. in the emergency room. According to Officer Stanturf, it appeared as if V.R. had “just been beaten” because she had visible bruising, swelling, and “some red marks” on her face and arms.
V.R. told the officer she had gone to a friend's apartment at about 10 p.m. the previous evening to watch a movie. She reported the friend had given her some sort of sleeping pill, pushed her onto the bed, removed her clothes, punched her numerous times and then raped her several times. She finally left around 1:30 a.m. and walked to KU Med Center.
Officer Stanturf testified that while he was speaking with V.R., “[s]he seemed a little groggy, complaining of pain. Just kind of out of it.” He testified that V.R. “appeared to be under the influence of some type of drug or alcohol.” Despite her grogginess, V.R. responded appropriately to his questions.
Detective Stuart Littlefield of the KCKPD was assigned to investigate the case. He testified that V.R. was “very distraught, very upset, to the point of being almost in hysterics.” He also noticed that she had a “fat lip” and bruises on her face, arm, and wrists.
Detective Littlefield further stated that V.R. reported she had been to the apartment of Robert Quinn at his invitation to watch TV and a movie. V.R. told him Quinn had given her an Ambien pill because she has trouble sleeping. When she tried to leave, Quinn blocked her way out and forcibly raped her. She tried to scream but Quinn put his hand over her mouth and choked her to prevent her screaming.
V.R. also told Detective Littlefield she had left some of her clothing in Quinn's apartment, i.e., the green underwear and black hat she had been wearing, because “[s]he wanted to get out of there.” Littlefield indicated V.R. did not appear intoxicated and he did not remember smelling any odor of alcohol on her breath; however, he acknowledged that he did not make any notes regarding whether V.R. had consumed alcohol that night.
While at the KU Med Center, V.R. consented to a sexual assault examination, and Katherine Lysaught, a registered nurse and sexual assault examiner, performed the examination. Lysaught testified that when she first encountered V.R., she was bawling and “very, very distraught”; indeed, V.R. was “almost inconsolable.” V.R. had a “very swollen lip with some bleeding” and “numerous bruises all over her body.” More specifically, Lysaught noted V.R. had bruising to multiple areas of her chest, left eye, right and left clavicle area, right bicep, right forearm, left bicep, left wrist and forearm, right inner thigh, and both knees, as well as abrasions on her back, the left side of her face, right scapula, left side of her neck, and her right knee. When Lysaught collected V.R.'s clothing, she discovered that V.R.'s “underwear was not on her at that time.”
V.R. told Lysaught essentially what she had told Officer Stanturf and Detective Littlefield. She reported that Quinn had assaulted her vaginally for approximately 30 minutes. She said Quinn told her he had taken Viagra before the assault, and he hit her numerous times but she never lost consciousness. When he told her to leave, she immediately ran out of the apartment and to the KU Med Center.
During V.R.'s pelvic examination, Lysaught found “a bit of foreign material” on V.R.'s labia, which she collected and placed in the rape kit. V.R. did not have any internal or external injuries to her vaginal region.
At approximately 8:30 a.m. on November 10, 2010, Detectives Herron and Mendez of the KCKPD went to Quinn's apartment in an attempt to contact him. Upon arriving, the detectives knocked on Quinn's door for approximately 10 to 15 minutes but did not receive an answer. They walked away from the door and waited by a nearby elevator bank for another 10 to 15 minutes. As they headed back towards Quinn's apartment, Quinn opened the door and exited carrying a plastic bag. The detectives took Quinn into custody and informed him that they were arresting him for an alleged sexual assault that had occurred with V.R. In response, Quinn stated that V.R. was his girlfriend and “he could not rape anyone as he was impotent.”
Police secured a search warrant for Quinn's residence and the plastic bag he had been carrying. In the bag, the officers discovered a pair of torn green women's underwear, a partial piece of a Durex condom wrapper, and an empty vodka bottle. At the preliminary hearing, defense counsel asked Detective Herron if there was also a crack pipe in Quinn's plastic bag and the detective replied, “I believe there was, yes.” However, at trial Detective Herron testified that this statement was not accurate.
After searching the plastic bag, the officers went inside Quinn's apartment and found a black hat in the living room. They found several pieces of evidence in Quinn's bedroom, specifically lubricant, a box of Durex condoms, and a partial piece of a Durex condom wrapper on the floor next to his bed. The officers also observed what appeared to be blood splatter on the wall directly in front of a bed by Quinn's television and blood stains on Quinn's mattress and bedding.
The KCKPD forwarded numerous pieces of evidence to the Kansas Bureau of Investigation Forensic Laboratory (KBI) for biological testing. Dana Soderholm, a forensic scientist with the KBI, analyzed the following items: V.R.'s rape kit; oral DNA swabs from Quinn; the green underwear; a piece of a mattress cover; and swabs from the east wall in Quinn's bedroom. According to Soderholm, there was no semen detected in V.R.'s vaginal slide, vaginal swabs, anal swabs, the debris collected from outside of her vagina, or her oral swabs. Soderholm indicated she would not expect to find semen if V.R.'s assailant had used a condom. Soderholm also tested Quinn's mattress cover on which she located blood with a DNA profile that matched that of V.R. Likewise, the swabs from Quinn's bedroom wall also tested positive for the presence of blood. A DNA analysis of that blood revealed a mixture of DNA types from at least two individuals. While the minor contributor to the DNA mixture contained insufficient genetic information for Soderholm to perform a comparative analysis, the profile of the major contributor was consistent with V.R.'s known DNA profile. Finally, Soderholm discovered sperm on the green underwear, which matched the known DNA profile of Quinn.
The State subsequently charged Quinn with one count of rape. V.R. and Quinn both testified at the jury trial, and each provided a different version of the events that transpired on November 9, 2010. V.R. testified she had made Quinn's acquaintance sometime around September 2010 when she ran into him on the street and they started chatting about “church and stuff.” Quinn and V.R. then became friends. They began hanging around each other pretty much almost every day, and spent this time drinking heavy amounts of alcohol. V .R. acknowledged she had stayed at Quinn's house on approximately two occasions. She testified, however, that although Quinn had asked her several times to “be romantic with him” and had tried to kiss her on one occasion, she repeatedly refused his advances, and their friendship had been strictly platonic since its inception.
V.R.'s testimony was consistent with what she had reported to the officers and the nurse at K.U Med Center on November 10, 2010. She further testified that both Quinn and she had consumed a pint of vodka but she could not remember exactly how much each had. She said everything had been fine and Quinn had not made any advances towards her that evening, until she informed him that she wanted to go home. Quinn “told [her] no,” and the assault and rape then began.
When Quinn finished having sexual intercourse, he told V.R. to leave. V.R. quickly put on her jeans and left. In her haste to escape, she left her underwear and the black hat she had been wearing. During her cross-examination, V.R. acknowledged that Quinn accompanied her to the elevator and to the lobby of his apartment building, but did not follow her outside. After she exited the front door of the apartment building, V.R. walked approximately 2 blocks to the KU Med Center. She testified she had sustained several injuries during the sexual assault such as black eyes, a busted lip, and bruises all over her body. V.R. did not know how long the unwanted sexual encounter lasted, whether Quinn wore a condom, or if he ejaculated. Although V.R. conceded she had a history of cocaine abuse, she indicated she had not used cocaine for a “long time,” and she denied taking any drugs, other than Ambien, while at Quinn's residence.
According to Quinn's version of events, he had met V.R. towards the end of July 2010, because she was standing outside his apartment building drinking some whiskey and asked him if he wanted to drink with her. Quinn responded affirmatively, and after spending some time in front of the building together, they ended up in his apartment. Subsequently, Quinn and V.R. became involved in a romantic relationship; in fact, Quinn testified, “We was boyfriend and girlfriend. We had sex relations. We did everything together. We slept together every night.” Quinn explained that on November 9, 2010, he purchased a “fifth of whiskey” and brought it to V.R.'s house. He and V.R. then went to his apartment, smoked cocaine together while watching a movie, but there never was any sexual activity.
According to Quinn, the alcohol and cocaine caused them to both become “drunk and high.” When the drugs were gone, Quinn and V.R. started arguing because V.R. wanted Quinn to get more drugs. Quinn testified he told V.R. that she needed to “be cool,” the alcohol “got the best of [him],” and he smacked her. Quinn stated he hit V.R. several times, and he could have “grabbed her a couple times.” Although Quinn acknowledged he “might have hit [V.R.] in the face,” he denied causing the other bruising on her body. He testified V.R. had bruised herself on the knees and arms because, due to her alcoholism, she had fallen in the front of his apartment building. Following their argument, V.R. was ready to leave, so Quinn walked her to the front of his apartment building and watched her walk towards the KU Med Center. Quinn emphatically denied having any sexual intercourse with V.R. that night stating that, because of the drugs and alcohol he had consumed, he was unable to have sex.
The jury found Quinn guilty of the crime of rape. After denying a motion for new trial, the district court sentenced Quinn to 272 months' imprisonment followed by lifetime postrelease supervision.
We will mention additional facts as they pertain to the specific issues presented in this appeal.
The Denial of Quinn's Motion for a Continuance of the Trial
On July 14, 2011, 4 days prior to trial, Charles Lamb, defense counsel, who had been appointed 4 months prior, orally moved for a continuance to have the urine sample taken from V.R. tested for the presence of cocaine. Lamb explained he had only recently received a copy of the preliminary hearing transcript, and upon reviewing it, noticed that V.R. had denied using cocaine on the night of the alleged rape, and one of the investigating officers indicated that a crack pipe had been found in the plastic bag Quinn was carrying out prior to his arrest. Lamb claimed that because Quinn alleged he and V.R. had been using crack cocaine that night and V.R. denied any such use, the investigating officer's testimony raised an issue as to V.R.'s credibility which Lamb wished to explore. Lamb alleged that in order to properly attack V.R.'s credibility on this issue, he needed a continuance to pursue testing of her urine for the presence of cocaine.
The district court indicated that it believed the urine could “potentially [be] relevant if [there was] a way to test it.” The judge determined, however, that he did not want to grant a continuance “just because evidence would potentially be relevant if it's not, after all, evidence, cause it's gone, because it's decayed or dissipated or whatever.” After a discussion regarding the potential individuals who might have had relevant information on whether the KBI could still perform such testing, the court denied the motion. But the court indicated it would revisit this issue if subsequent investigation demonstrated that testing was still possible.
On the morning of jury trial, Lamb restated his objection to the denial of a continuance in order to preserve the record. The district court again denied the continuance on grounds that the existence and practical effect of the testing sought was too speculative.
Quinn contends on appeal that the district court should have granted a continuance to obtain testing of the urine and/or blood samples taken from V.R. at the KU Med Center. Specifically, he alleges the court's refusal to grant a continuance deprived him of his constitutional right to present a complete defense because his case largely involved a credibility contest between himself and V.R., and he could not effectively attack V.R.'s credibility without the scientific testing.
Under K.S.A. 22–3401, a district court may grant a continuance “for good cause shown,” and appellate courts will not disturb its refusal to grant a continuance absent a showing of an abuse of discretion. State v. Beaman, 295 Kan. 853, 862, 286 P.3d 876 (2012). A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court; (2) guided by an erroneous legal conclusion; or (3) based upon an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Whether the district court has interfered with the defendant's right to present a defense, however, is reviewed de novo. State v. Lewis, 299 Kan. 828, 846, 326 P.3d 387, 402 (2014).
As he did below, Quinn relies upon his speculative assertion that “good cause” supported his request for a continuance because chemical testing of V.R.'s blood and/or urine may have proved that she had used cocaine on the night of the alleged rape. However, “[m]ere speculation that with more time something favorable may happen for the defendant does not constitute good cause.” Beaman, 295 Kan. at 864. Moreover, the district court did not outright deny Quinn's motion. To the contrary, it indicated that because the evidence could potentially be relevant if the blood and/or urine samples had not decayed or dissipated, it would reconsider Quinn's request if he came forward with evidence proving chemical testing could still be performed. Yet, rather than take advantage of this offer, Lamb merely restated on the morning of trial his objection to the denial of the continuance in order to preserve the record. Defendants must provide the district court with sufficient information to support a continuance request, especially when the defendant is seeking scientific testing, as the results from such testing must ultimately be disclosed to the prosecution through discovery. State v. Chavez, No. 103,561, 2011 WL 3795244, at *4 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. 1108 (2012).
Furthermore, “[a] defendant cannot establish prejudice from the trial court's denial of his or her motion for a continuance for the purposes of investigating evidence if he or she fails to investigate the evidence after the trial and submit any new evidence in a motion for a new trial.” State v. Ly, 277 Kan. 386, Syl. ¶ 2, 85 P.3d 1200 (2004). While Quinn filed two motions for new trial and, in support of one of those motions, obtained information that chemical testing could still be performed, he neglected to actually pursue such testing.
Accordingly, the district court did not abuse its discretion when it denied Quinn's motion for continuance, as the purported value of the chemical testing and whether such testing could even be performed was speculative.
The Prosecutor's Statements During Closing Argument
Quinn claims the prosecutor committed reversible misconduct during closing arguments by improperly commenting on facts not in evidence, namely, Quinn's demeanor while V.R. was testifying. Quinn takes offense to the following statements by the prosecutor during her closing argument:
“And that's ultimately where we're at now, ladies and gentlemen. You have a credibility issue to make—determination, a credibility determination.
“And I don't know if any of you happened to notice, but while [V.R.] was on the stand crying and going through that, [Quinn] was sitting over here laughing. So think about that, because everybody's behavior is something that you need to judge ....“ (Emphasis added.)
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the appellate court determines whether the comments were outside the wide latitude afforded a prosecutor in discussing the evidence. Second, if misconduct exists, the appellate court decides whether the improper comments compel reversal; that is, whether the statements prejudiced the jury against the defendant and deprived him or her of a fair trial. State v. Harris, 297 Kan. 1076, 1087, 306 P.3d 282 (2013).
As to the first step of the analysis, Quinn argues the prosecutor improperly referenced facts not in evidence when she commented upon her alleged observation of his demeanor during V.R.'s testimony. He claims this “unsworn testimony ... distracted the jury from [considering] ‘permissible factors identified by the instructions as legitimately aiding in the determination whether [he] committed the alleged offense.’ “
Prosecutors have wide latitude to craft arguments which draw reasonable inferences from the evidence. According to our Supreme Court, this latitude includes explaining to juries what it should look for in assessing witness credibility, as long as the jury is left to draw the ultimate conclusions. State v. Hart, 297 Kan. 494, 505–06, 301 P.3d 1279 (2013). A prosecutor may not comment upon facts outside the evidence. State v. Hall, 292 Kan. 841, 848, 257 P.3d 272 (2011).
In State v. Novotny, 297 Kan. 1174, 1189, 307 P.3d 1278 (2013), a case with analogous facts to those in the present case, the defendant contended the prosecutor had committed misconduct during closing arguments because she misstated the evidence when she commented on his demeanor: “ ‘[Y]ou saw him eye-balling the witnesses.’ “ Our Supreme Court moved onto the second step of the analysis without specifically determining whether this comment constituted misconduct because the record was not sufficiently clear as to whether the jury observed the defendant's actions.
Here, Quinn denies that he laughed and contends the prosecutor mischaracterized the evidence. The prosecutor claims otherwise. Because the record is unclear in this regard, it is difficult to determine whether the prosecutor commented on facts outside the evidence and committed misconduct.
However, even if she did, it appears that Quinn cannot meet the second prong of the test to establish prosecutorial misconduct. In our analysis of whether a defendant has met this second prong, we consider three factors:
“ ‘(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.’ [Citations omitted.] “None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ... have been met.' “ Hart, 297 Kan. at 506.
Under the constitutional harmless error standard, the party benefitting from any prosecutorial misconduct must prove beyond a reasonable doubt that the error will not or did not affect the outcome of the trial in light of the entire record, i.e., “ ‘there is no reasonable possibility that the error contributed to the verdict.’ [Citation omitted.]” State v. Ochs, 297 Kan. 1094, 1100, 306 P.3d 294 (2013). Under the statutory harmless error standard, the court must determine “ ‘if there is a reasonable probability that the error did or will affect the outcome of the trial.’ [Citation omitted.]” 297 Kan. at 1100.
As to the “gross and flagrant” factor, an appellate court considers “whether the comments were repeated, emphasized improper points, were planned or calculated, or violated well-established or unequivocal rules.” State v. Akins, 298 Kan. 592, Syl. ¶ 7, 315 P.3d 868 (2014). Here, it does not appear that the prosecutor emphasized or unduly repeated the comments Quinn complains about. Instead, the remarks constituted a “minuscule portion” of the prosecutor's closing argument. See State v. Skinner, No. 108,140, 2013 WL 4404181, at *6 (Kan.App.2013) (unpublished opinion), rev. denied ––– Kan. –––– (June 20, 2014).
As to the “ill will” factor, that is usually shown by deliberate and repeated misconduct, mocking of a defendant, or indifference to a court's rulings. State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011); State v. Miller, 284 Kan. 682, 719, 163 P.3d 267 (2007). Here, the prosecutor only made the pertinent remarks once during closing arguments and after Quinn objected to them, she reminded the jurors that it was their responsibility to judge the credibility of the witnesses. Furthermore, it is also worth noting that the district court reminded jurors several times during the presentation of evidence and closing arguments that the task of assessing credibility was theirs alone. In the absence of evidence to the contrary, appellate courts presume that the jurors followed the instructions given to them. State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012).
The third and final factor we consider is whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. Hart, 297 Kan. at 506. It does not appear that the prosecutor's comments prejudiced Quinn or denied him a fair trial as the evidence of Quinn's guilt was substantial. V.R. provided a largely consistent account of the rape throughout her testimony. In addition, several pieces of evidence corroborated her story: her decision to immediately report to the KU Med Center, the injuries found on her body and observed by other witnesses, the blood found on Quinn's walls and bedding, the semen found on V.R.'s torn underwear, and the pieces of the condom wrapper. Also, Quinn told law enforcement that he could not rape V.R. because he was impotent; yet, officers found condoms and lubricant in his bedroom. Likewise, Quinn provided a different excuse to the jury. Instead of telling the jurors that he was impotent, Quinn told them that he could not have an erection while using cocaine.
The prosecutor's remarks did not constitute reversible error, as there is enough evidence upon which to conclude, beyond a reasonable doubt, that any error had little, if any, likelihood of having changed the result of the trial.
The denial of Quinn's First Motion for a New Trial
Quinn filed a timely motion for new trial based upon the alleged ineffective assistance of his trial counsel, Lamb. The motion contended that Quinn had received constitutionally deficient representation, which deprived him of his guaranteed right to present a defense. He specifically alleged that Lamb's assistance fell below objectively reasonable standards because (1) Lamb only visited him in the jail on three or four occasions for no more than 15 minutes at a time; (2) Lamb neglected to investigate and present witnesses who could have testified about his sexual relationship with V.R. and V.R.'s use of cocaine on the night of the alleged rape; (3) several of his relatives, who believed they had “helpful information” about the case, attempted to speak with Lamb, but Lamb told them that he had “his theory of defenses and was not interested in talking with them”; and (4) during Quinn's direct examination, Lamb prohibited him from testifying about his diabetes related difficulties with erectile dysfunction, his sexual relationship with V.R., and the fact that he used the green underwear V.R. left in his apartment to clean up after masturbating.
Several weeks later, Judge Ernest Johnson, who had presided over the jury trial, conducted an evidentiary hearing to consider the motion. Because of the nature of this present issue on appeal, we find it necessary to provide a somewhat detailed recitation of the evidence presented at that hearing.
At the outset, Quinn's newly retained counsel, William Dunn, informed the district court that he wished to amend his motion for new trial to include an additional allegation of ineffective assistance, which he was unaware of at the time he filed the motion. According to Dunn, he had recently discovered Lamb had neglected to research whether the KBI could have tested V.R.'s urine and blood from the night of the alleged rape for the presence of cocaine, and had Lamb researched this issue to support his request for a continuance, he would have discovered that this testing still could have been performed. The court allowed the amendment. Several witnesses then testified including Lamb and Quinn.
Lamb testified the district court appointed him to represent Quinn “late in the game,” approximately 4 months before Quinn's jury trial. Lamb stated he visited Quinn in the jail prior to his trial on four occasions, and he felt like he spent adequate time with Quinn to fully discuss his defense. Lamb testified that according to his notes, during their first meeting, Quinn stated, “ ‘Everything they're saying is true, except there was no sex.’ “ Following this visit, Lamb sought a copy of the preliminary hearing transcript, and began the discovery process because he wanted to “see what all ... was being said, that was true according to ... Quinn.” Lamb believed that at their second meeting, Quinn actually told him what happened, as he had “detailed notes on [Quinn's] side of the story,” and with the information he had already obtained during discovery, he “had the entire picture of ... what this case was about.” According to Lamb, Quinn's case was not a difficult one since the issue boiled down to whether there had been sex. Lamb denied he was only in the jail for a few minutes as Quinn was alleging.
Lamb further testified that at their first meeting, Quinn told him he and V.R. were smoking crack and they argued over getting more of it. Quinn told him he hit her a few times during the argument and that he could not have had sex because he had erectile dysfunction while he was smoking crack. Lamb stated there was never any mention of sex until it had become clear there was semen on the panties the police found in the trash bag Quinn was carrying out of the apartment the morning of his arrest. When he mentioned this, Quinn told him he had masturbated on the panties.
With respect to the continuance for testing V.R.'s blood and urine, Lamb testified he had filed the motion because he wished to obtain his own expert, as Quinn had told him he and V.R. smoked cocaine that night, the preliminary hearing transcript indicated that one of the officers had found a crack pipe, and V.R. denied smoking cocaine. Consequently, Lamb believed that a potential credibility issue existed, which he wanted to explore. As we stated earlier, the district court denied the request for continuance of the trial.
Finally, Dunn questioned Lamb as to the extent of his interviews with Quinn's family and other potential witnesses. Lamb stated he had spoken with “several relatives on the phone,” but he did not believe they had any helpful information. He testified that all they wanted to do was to paint V.R. as a prostitute and tell him how to try the case. Lamb did not wish to pursue that avenue as Quinn had told him they had been boyfriend/girlfriend and the jury was bound to believe some sort of relationship existed between the two of them. He did not feel that any of the information that family members gave to him would be germane to the ultimate issue in the case-whether there was sex- and none of it would bear on the credibility of V.R.
Quinn testified he only remembered Lamb visiting him three times at the jail. He said his first visit lasted about 4 or 5 minutes, as Lamb simply introduced himself. When Lamb visited him again approximately 1 month later for about 10 minutes, Lamb asked him what happened, and despite Lamb's assertion to the contrary, Quinn provided him with the following information: “I told him that—that me and [V.R.] was drinking, and we was smoking crack, and we got into a fight, and she hit me in the mouth, and I beat her up.” Quinn stated he never changed the story he had told Lamb, and he emphatically denied telling Lamb that he fell asleep after he beat up V.R. Finally, Quinn testified Lamb had visited him for about 10 minutes 1 week before trial and told him the KBI found semen, which matched his DNA profile, on V.R.'s underwear. That is when Quinn first told him he had masturbated on the panties belonging to V.R. He also told Lamb he was impotent and he was being treated by a doctor for it.
A toxicology supervisor at the KBI lab also testified concerning blood samples from V.R. He stated that while he was not the one who had tested the samples, it was still possible, even at the time of the hearing, to determine the presence of cocaine in the sample by testing. However, there was no way to determine when V.R. had ingested any cocaine that may be found in the blood samples.
Several of Quinn's family members also testified. In one way or another, they all essentially stated that either themselves or others that they knew could have testified that V.R. and Quinn had been in a romantic relationship (to counter V.R.'s testimony) and that V.R. smoked crack often but Lamb had not wanted to hear about any of that.
At one point during the hearing, the district court judge indicated he was construing Quinn's ineffective assistance claims as being similar to a post-conviction motion: “I'm probably going to read the transcript because it's in the nature of a 1507 combined with the motion”.
After taking the matter under advisement, the district court issued a detailed written nine-page order denying Quinn's motion for new trial. Specifically, the court found Quinn had failed to prove that the amount of consultation time, “[e]ven if the records of the time ... Lamb spent with [Quinn] in jail showed less than the court would like to see,” constituted a serious error that undermined Quinn's right to counsel under the Sixth Amendment to the United States Constitution. The court further found that based upon its observation of the trial, Lamb was adequately prepared to present Quinn's defense because it was apparent that Lamb “did far more to prepare for the trial than just sit back and accept the State's case as true except for the rape.” The court explained, “Lamb's decisions not to investigate or pursue the lines of defense desired by [Quinn]'s family members were strategic decisions within his province.” Finally, the court determined that Lamb's decision not to further pursue a continuance for the testing of V.R.'s blood and urine, did not rise to the level of ineffective assistance because this was a “strategic decision on an issue whose importance is being exalted now but may not have been so important at trial, and could have backfired.”
On appeal, Quinn contends the district court committed reversible error because the evidence presented at the hearing clearly established that Lamb was ineffective. He again claims Lamb provided constitutionally deficient representation in failing to adequately consult with him; research the time frame during which the urine and/or blood sample taken from V.R. on the night of the alleged rape could have been tested for the presence of cocaine as a means for supporting his continuance request; investigate the causes of the bruises on V.R.'s body and the identity of the minor contributor to the DNA mixture found within the sperm sample on V.R.'s underwear; and interview several witness who had information relevant to impeaching V.R.'s credibility.
Ineffective assistance of counsel claims present mixed questions of fact and law. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). When, as in this case, the district court has held a full evidentiary hearing to consider the effectiveness of the defendant's trial counsel, appellate courts review the district court's factual findings to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. See State v. Adams, 292 Kan. 151, 167, 254 P.3d 515 (2011). Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). Appellate review of the district court's conclusions of law is de novo. Adams, 292 Kan. at 167.
To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Rather, before counsel's assistance can be found to be so defective as to require reversal of a conviction, the defendant must satisfy the constitutional standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984). Under that test, the movant must establish (1) counsel's performance was constitutionally deficient, namely, 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) 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. State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013). To establish prejudice, the defendant must show there is “a reasonable probability” that, but for counsel's error(s), the result of the proceeding would have been different. 296 Kan. at 431. “ ‘[A] reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation omitted.]” 296 Kan. at 431.
Based upon a careful review of the record of the evidentiary hearing on the motion, we conclude the district court did not err when it found Quinn had failed to prove Lamb had provided inadequate assistance under constitutional standards. Quinn and Lamb provided widely divergent testimony. Quinn claimed Lamb did not adequately consult with him or prepare for his trial, whereas, Lamb maintained he sufficiently consulted with Quinn and was fully prepared to present his defense to the jury. The determination of whether Lamb provided competent representation amounted to a credibility assessment. After observing the witnesses and listening to their testimony, the district court opted to give more credence to Lamb's testimony. Consequently, Quinn's argument is nothing more than an invitation to us to reweigh the evidence and redetermine the credibility of the witnesses. When reviewing factual findings, however, appellate courts do not engage in those endeavors. State v. Fulton, 292 Kan. 642, 647, 256 P.3d 838 (2011)
Moreover, the district court articulated its factual findings in a detailed and thoughtful manner in a nine-page order. Despite Quinn's assertion to the contrary, substantial competent evidence supports the court's findings, which sufficiently support its conclusions of law. Indeed, the court provided a thorough analysis of the issues, rendering it unnecessary for us to further address Quinn's allegations in this opinion. As the court aptly found, Lamb vehemently disputed Quinn's contention regarding the brevity of his jail visits and the circumstances not only support this contention, but demonstrate that Lamb adequately prepared for Quinn's trial and fully investigated matters relevant to Quinn's defense.
On appeal, Quinn has failed to establish that Lamb's actions fell below an objective standard of reasonableness or that Lamb's alleged deficiencies prejudiced him. The district court did not err when it denied Quinn's motion for new trial.
The Denial of Quinn's Second Motion for a New Trial
On August 5, 2013, approximately 6 months after Quinn docketed the present appeal, his counsel filed a second motion for new trial in the district court based upon newly discovered evidence. Specifically, Quinn contended he had recently discovered a telephone recording of a conversation between himself and V.R., which not only suggested that they were involved in a romantic relationship, but also evidenced an argument they had “about crack cocaine, its availability, and its probable arrival.” Quinn alleged the recording had such materiality that it would be likely to produce a different result upon retrial because the nature of his relationship with V.R. and the veracity of V.R.'s assertion that she did not use cocaine were important issues in his case.
Two days later, Quinn filed a motion in this court seeking to stay briefing and remand his case to the district court for a hearing, because “[g]ranting a remand would permit the district court to rule on [his] motion [for new trial] and, if the district court denie[d] the motion, include that issue in the current appeal.” This court granted the motion and, while retaining jurisdiction, remanded the matter to the district court to conduct a hearing.
Another judge, besides the trial judge was assigned to hear the motion and conducted a hearing on September 26, 2013. At that hearing, Charlie Sessoms, Quinn's older sister testified she had discovered on Quinn's cell phone a recording of a conversation between Quinn and V.R. The cell phone had apparently recorded the conversation on October 18, 2010, approximately 1 month before the alleged rape.
After the district court listened to the recording, Quinn described the conversation's content as follows: “Well, we had noticed some crack cocaine from this dealer, and I was cooking some food, and he was taking a little bit longer than anticipated to come. So [V.R.], she was getting upset and antsy. And I'm trying to relieve her of her anxiety telling her he's coming.” Quinn further stated that at the end of the recording, when he was talking about “ ‘sparks,’ “ he was referring to the fact that he and V.R. were “going to have sex.”
After hearing the evidence and entertaining the parties' arguments, the district court denied Quinn's motion. The court specifically found that the recording did not constitute “new” evidence as there was no effort to attempt to discover the recording before trial. The court further found the recording did not qualify as material evidence that would likely produce a more favorable outcome at retrial because the recording merely tended to impeach or discredit V.R.'s testimony.
Before addressing the merits of this issue, we note that Quinn never filed a second or supplemental notice of appeal from this ruling. That raises the possible question as to whether this issue is properly before us. The State does not raise the issue and neither party briefs it. Regardless, it matters not because Quinn's argument on the merits of the issue fail to provide any basis for a new trial.
The Kansas code of criminal procedure provides: “The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice.” K.S.A.2013 Supp. 22–3501. Because new trials on grounds of newly discovered evidence are not favored, courts view such motions with caution. State v. Trammell, 278 Kan. 265, 283,92 P.3d 1101 (2004). To establish the right to a new trial based upon newly discovered evidence, a criminal defendant must establish that (1) the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) the newly discovered evidence is of such materiality that it would be likely to produce a different result upon retrial. State v. Laurel, 299 Kan. 668, 676, 325 P.3d 1154 (2014). In determining whether new evidence is material, the district court must assess the credibility of the newly proffered evidence.
We review a district court's decision on a motion for new trial for an abuse of discretion and we will not reassess that court's determination of credibility. Laurel, 299 Kan. at 676. Again, a judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court; (2) guided by an erroneous legal conclusion; or (3) based upon an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Materiality decisions, however, are reviewed de novo, with deference given to the district court's findings of fact. State v. Rojas–Marceleno, 295 Kan. 525, 539, 285 P.3d 361 (2012)
Quinn contends the district court abused its discretion because “while the conversation in the recording occurred prior to trial, no one was aware of its existence until after trial” and the recording's introduction upon retrial would likely produce a different result, as it “directly contradict[ed] testimony from V.R. that [he] raped her.”
As to whether the recording could have been produced for use at trial with due diligence, two facts stand out: the recording was made approximately 1 month prior to the alleged rape and remained in the possession of either Quinn or Sessoms throughout the proceedings, i.e., for a period that spanned almost 3 years. Also, Quinn had always argued he and V.R. had been in a relationship that included smoking crack cocaine together and it is reasonable to assume that if he and his attorney thought that to be an important element of the defense, some proof of the drug usage and the relationship could be found on Quinn's phone. Consequently, we agree with the district court that Quinn has failed to establish he could not have discovered the recording through reasonable diligence prior to trial.
More importantly, we agree with the district court that even if Quinn could not have discovered the recording by employing reasonable diligence, he is still not entitled to a new trial because the recording was not sufficiently material to support a reasonable probability that the jury would reach a different result upon retrial had it heard the recording. Quinn fails to explain how the recording disproves V.R.'s rape allegation. This is a significant omission because evidence concerning the parties' past drug use and the nature of their relationship is only relevant for impeachment purposes, as this evidence does not address any of the essential elements of the crime charged. In other words, even assuming V.R. had a sexual relationship with Quinn and regularly used cocaine, these facts do not in any way dispel her claim that Quinn forcefully took advantage of her and committed the crime he was charged with on November 9, 2010.
Quinn admits that because the recording merely tends to impeach or discredit V.R., whether it carries sufficient materiality to warrant a new trial appears to depend upon the presence or absence of corroborating evidence. See Laurel, 299 Kan. at 676; Rojas–Marceleno, 295 Kan. at 540. Quinn argues the State did not present evidence that corroborated V.R.'s rape allegation. The argument, however, lacks support in the record which contains physical evidence that V.R. was beaten severely, her blood was on the walls and bed in Quinn's apartment, and his semen was found on V .R.'s underwear that Quinn was attempting to dispose of when police officers confronted him the morning after the crime.
Also, the jury was fully informed that V.R. had a history of cocaine use in the past. While she denied using cocaine at anytime with Quinn, she did admit to using alcohol with him and to taking an Ambien on the night of the rape. Defense counsel at trial questioned V.R. effectively about her relationship with Quinn, her alcohol use, and inconsistencies in her version of the events pertaining to the alleged rape. Whether V.R. used cocaine on the night in question is insignificant and irrelevant. The recording that Quinn alleges was material would not have added sufficient strength to the evidence already before the jury that would tip the scales in his favor. It simply does not address the fundamental issue at trial, namely, whether the forcible sex had occurred.
In conclusion, because a reasonable person could agree with the district court's conclusion that the recording could have been produced at trial with reasonable diligence and was not of such materiality that a different outcome would likely occur upon retrial, the court did not abuse his discretion in denying Quinn's second motion for new trial.
The Use of Criminal History to Enhance the Sentence
Quinn contends the district court violated his constitutional rights as described in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history to enhance his sentence without requiring the State to prove his prior convictions to a jury beyond a reasonable doubt. This argument involves a question of law over which this court exercises de novo review. State v. Pennington, 276 Kan. 841, 851, 80 P.3d 44 (2003).
As Quinn acknowledges, our Supreme Court in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002) previously determined that the use of a defendant's criminal history to calculate a sentence under the Kansas Sentencing Guidelines Act does not violate due process as interpreted by Apprendi. 273 Kan. at 46–48.
We are duty bound to follow precedent from the Kansas Supreme Court absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). We find no evidence to suggest that our Supreme Court is considering a departure from its holding in Ivory. See State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014) (reaffirming Ivory ). Quinn's argument fails.
Affirmed.