Opinion
No. 111146.
2015-03-27
STATE of Kansas, Appellee, v. Hugo A. VILLANUEVA, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Hugo A. Villanueva and Carlos A. Vigil–Rivera were convicted in a joint trial of three counts of attempted aggravated robbery. Villanueva filed a motion for a new trial claiming his trial counsel was ineffective for failing to obtain a transcript of the preliminary hearing and for failing to file a motion to sever his trial from Rivera's. The trial court denied his motion. Villanueva appeals. Because the record indicates trial counsel was not ineffective and a motion to sever was not supported by the law, we affirm.
Villanueva and Rivera were charged together in an amended complaint with three counts of attempted aggravated robbery. The charges stem from the attempted robbery of three Church's Chicken employees on November 6, 2011.
Villanueva and Rivera were charged together, had a joint preliminary hearing, and had a joint trial. However, they always had independent counsel. Attorney Adebayo Ogunmeno represented Rivera throughout the proceedings. Attorney Thomas R. Fields was retained to represent Villanueva through the preliminary hearing. Charles Ball was then retained to represent Villanueva and did so through the trial.
Villanueva and Rivera's trial was held on April 9–11, 2012. The victims testified to the following: On November 6, 2011, Jesus Jorge Gomez Cruz, Adriana Ruiz Salvador, and Zacharias Valentine were working the late shift at Church's Chicken in Kansas City, Kansas. Adriana's boyfriend Jose A. Alamillo Lopez was waiting in Adriana's car. Jorge, Adriana, and Zacharias finished up work sometime after 11:30 p.m. that evening and exited the building.
Jorge headed towards his vehicle, which was parked near the dumpster. A man approached him and demanded his wallet, his money, and his keys. Jorge saw that the man was carrying a knife. At trial, Jorge identified this assailant as Rivera. Rivera swung the knife at Jorge twice, but then was distracted by a scuffle back at Adriana's car. Jorge testified he heard a second assailant threatening to shoot Adriana. When Rivera turned around to look towards Adriana's car, Jorge took the opportunity to hit the assailant in the face. Jorge then ran off past the dumpster.
Adriana testified that when she left the building, the only other car she noticed was Jorge's. She and Jose sat in her car briefly, waiting to see if Zacharias needed a ride home. Suddenly, a man pulled Adriana's door open. At trial, both Adriana and Jose identified this assailant as Villanueva. Villanueva demanded money and a cell phone. Adriana tried closing her car door, but Villanueva ripped it open again. When he again demanded her money and phone, Adriana begged him not to hurt her. Jose testified he pleaded with Villanueva and told him they did not have any money. Adriana thought Villanueva was holding a gun based on how he was holding his sweatshirt. Villanueva was so near her that Adriana reached out to him, touched his face, and begged him not to hurt her. Villanueva told her to shut her mouth or he was going to shoot her.
Adriana and Jose noticed a second assailant approaching their car. At trial, Adriana and Jose identified the second assailant as Rivera. Adriana also saw that Rivera was carrying a knife. Rivera opened the driver's side back door of her car, briefly searched the back seat of her car, and said something to Villanueva, and then they both ran off towards the dumpster.
Jorge, who had been near the dumpster, had already fled the assailants, running towards the back of Church's Chicken into a residential area. He knocked on the back door of a home, but the resident told Jorge to get off of his property and refused to open the door. Jorge then called 911 and hid on the porch. While hiding, Jorge heard steps and two voices approaching but could not see the individuals. He recognized Rivera's voice. He could tell the voices were coming from the neighbor's yard. He heard the voices saying, “[C]an you see him? Can you see him?” He next heard sirens approaching. One voice then said, “[H]ide, hide ... We're gonna get caught,” to which the other responded, “we're not, we're not.” He believed the two went up the stairs to the back porch at the house next door.
After Villanueva and Rivera fled, Adriana also called the police. She and Jose remained in her car until the police arrived. Zacharias, who had been hiding throughout the ordeal, got into the backseat of Adriana's car.
Officers received the dispatch to Church's Chicken at 11:49 p.m. They arrived on scene minutes later. Three of the Kansas City, Kansas, police officers who responded to Jorge and Adriana's calls also testified, including Dallas Thompson, Sara Janeczko, and Richard Harris. Thompson testified that when he arrived on the scene, he first contacted Adriana. Janeczko and Harris testified they went to the back of houses located nearby at 19 and 21 North Valley, based on Jorge's call. These houses were directly north and within eyesight of Church's Chicken. Thompson eventually joined them at the Valley street houses.
Officers first found Jorge underneath the porch at 19 North Valley. Jorge told them he heard the voices of the men who tried to rob him next door, so the Officers next went to 21 North Valley. Jorge returned to the Church's Chicken parking lot to check on his coworkers. Officers found Villanueva and Rivera crouched in a hiding position on the roof of the back porch. There were no other individuals with Villanueva and Rivera. There were also no other indications that they had been hanging out up there—no chairs, empty cans, or cigarette butts. The officers testified they arrested both men.
After the State rested, Rivera testified in his own defense. He said he had known Villanueva for 2 1/2 or 3 months. He said he went over to Villanueva's house around 11:20 on the night of the robbery. He just stopped by Villanueva's house on his way to his girlfriend's house. He said they were sitting outside on the porch looking at the landscaping. Rivera said he and Villanueva never went to Church's Chicken that evening and never robbed anyone.
Jose Villanueva, Villanueva's father (Mr. Villanueva), testified as an alibi witness for Villanueva. Mr. Villanueva testified he and Villanueva live at 21 Valley—where the officers found Villanueva and Rivera the night of the robbery. The house has two apartments. He lived on the bottom and Villanueva lived on the second floor. Mr. Villanueva testified he was with his son until 11:40 p.m. on the night of the robbery. Mr. Villanueva testified Villanueva was expecting a call from his girlfriend. Villanueva was headed towards the back of the house to his apartment upstairs at 11:40 p.m. Mr. Villanueva never saw Rivera that night. He did not hear the police in his yard or his son being arrested.
Villanueva's girlfriend, Amber Linnell, also testified in Villanueva's defense. She testified that she had several short phone conversations with Villanueva on the night of the robbery. She brought in her phone records to corroborate the calls. Specifically, she received a call that lasted 1 minute from Villanueva's land line at 11:50 p.m. on the night of the robbery. She then called him back at 11:51 p.m. and that call lasted 3 minutes.
The jury convicted both Villanueva and Rivera of three counts of attempted aggravated robbery.
After Villanueva was convicted, he filed a series of pro se motions, including two motions for a new trial. Villanueva's motion for new trial alleged Ball had provided ineffective counsel for failing to obtain the transcript of the preliminary hearing and police reports and for failing to sever Villanueva's trial from Rivera's. The record includes two motions for a new trial, but the second appears to be a duplicate of the first. Thereafter, Ball requested to withdraw as Villanueva's counsel. On May 18, 2012, the trial court granted Charles Ball's motion to withdraw.
On July 19, 2013, the trial court held an evidentiary hearing on Villanueva's motion for a new trial. Villanueva was represented by Raymond Probst at this hearing. Ball and Villanueva both testified.
Ball testified Villanueva's family had retained him. Ball entered his appearance on March 6, 2012. Receipts indicated that the family paid for Ball to get a transcript. Ball normally gets copies of the transcripts before trial. However, Ball testified he was unable to get a transcript in this case because of the “timeframe to get the transcript of the preliminary hearing transcribed.” The court reporter did not testify, so the record does not indicate how long it would have taken him or her to prepare this transcript. The trial began on April 9—5 weeks after Ball entered his appearance.
Ball testified the court reporter “allowed [Ball] to listen to [the electronic recording of the hearing] whenever [he] wanted to between the time prior to trial so that [he] could hear what the particular testimony was of the prosecuting witnesses at trial.” Ball testified he was able to listen to the tapes “whenever [he] wanted” and he “took notes as to what would help the trial” while listening to them. He testified he “almost had memorized the testimony of the particular prosecuting witnesses.” He also had the oral recording available at trial. Ball testified that if a witness had made a contradictory statement at trial, he would have been able to question that witness on the contradiction and play the transcript of that portion of the witness' testimony. However, he never felt there was a need to impeach any of the witnesses at trial based on their preliminary hearing testimony.
Ball also testified he had conferred with Ogunmeno, Rivera's counsel, prior to trial. Ogunmeno indicated his strategy was that “[Rivera] intended to take a plea and, at trial, then he would testify to the fact that [Villanueva] was not at the particular incident.” Therefore, Ball did not perceive any common or contradictory defenses.
However, at some point, Ogunmeno filed a motion to suppress Rivera's statement to police, though the record does not include the content of Rivera's statement. On the morning of the trial, the trial court heard the motion to suppress. The court suppressed Rivera's statement. After the court suppressed Rivera's statement, Ball asked Ogunmeno whether it was still Rivera's intention to enter a plea and then testify on Villanueva's behalf. Ogunmeno indicated it was. However, the prosecutor indicated the plea offer was no longer on the table. Ball testified to his perception of the ill-fated plea, “I think they had thought that they were gonna have the motion [to suppress hearing] and then [the prosecutor] was gonna let them plea to the prior offered plea or some plea and that [the prosecutor] said no.”
Ball indicated severing the trial was possibly discussed with Ogunmeno, but because he believed they were going to plea and testify on Villanueva's behalf, “[T]here was no point in severing at that stage of the game.”
At trial, Ball's defense was that Villanueva was innocent-Villanueva had not been at Church's Chicken during the time of the robbery. Ball presented Villanueva's father's alibi testimony, Villanueva's girlfriend's testimony that she was on the phone with Villanueva during the time of the attempted robbery, and her cell phone records. Additionally, he went over the timelines of the various witnesses and law enforcement officers in an effort to emphasize inconsistencies and Villanueva's alibi.
Ball also testified about Villanueva's pro se motions for a new trial. Though Villanueva indicated in his motion for a new trial that part of his defense was that he and Rivera did not know each other, Ball testified that Villanueva never told him he did not know Rivera and the claim was “an outright lie.” Ball testified that clearly Villanueva knew Rivera because Villanueva said so and they were together when the police found them. Ball felt there would have been little likelihood of success on a motion to sever based on the facts and circumstances of the case.
Ball felt that although the timeframes of the police and the victims were obviously contradictory, “what could not be contradicted and couldn't be shook on cross-examination and the key note in the entire trial” was Adriana Salvador's testimony that she reached out, touched Villanueva on the cheek, and said “son, don't do this.” Ball testified he felt there was sufficient evidence to support the verdict and that severing the trial would not have resulted in a different outcome.
Villanueva also testified at the hearing. He testified he never asked Ball to file a motion to sever. However, Villanueva did discuss it with prior counsel, Fields. Villanueva testified that he reconfirmed with Ball that Ball was going to sever the trials. Contrary to what he alleged in his motion, Villanueva testified he did in fact know Rivera and that he told Ball he knew Rivera for “a couple months” prior to their arrest. Villanueva also testified he never had any indication prior to trial that Rivera intended to blame him or point the finger at him. Regarding Ball's failure to get a physical copy of the transcript, Villanueva testified, “I think that would have helped me too, ‘cause I think there were some things that they changed the story from my prelim and I think that would have helped me.”
Probst argued that Villanueva believed the antagonistic defense was rooted in Rivera's testimony that made it look like Villanueva and Rivera were “buddies” when, according to Villanueva, they did not know each other to such that extent.
In response, the State argued Rivera's defense was not antagonistic. Though Rivera initially made a statement—the contents of which are not included in the record on appeal—it was suppressed and never introduced to the jury. The State also argued Ball was familiar with the testimony from the preliminary hearing based on listening to the recording.
The trial court recalled on the record that two out of the three victims had identified Villanueva as one of the robbers and Villanueva's father had testified as an alibi defense. The trial court then determined Villanueva had not met the burden of establishing ineffective counsel. In regards to the motion to sever, the judge noted that he “[did] not believe [the defenses] were antagonistic ... and I don't believe that ... a motion to sever would have aided either of the defendants.” Regarding the preliminary hearing transcript issue, the trial court held that the issue was “frankly, not an issue.” The court further held: “Ball testified that he listened to the preliminary hearing tape, that he had practically memorized the testimony of the witnesses in the case and didn't need it for this particular trial.” Regarding alibi witnesses, the court found that Villanueva's “alibi defense was presented to the jury by a credible witness and it was argued and the jury obviously didn't believe it.”
The trial court noted it could not “think of any prejudice to [Villanueva's] substantial criminal rights that occurred.” The judge noted, “I sustained the proper objections. The trial proceeded in a responsible manner. [Villanueva] chose not to testify.” The court then denied Villanueva's motion for a new trial “in all respects.”
Villanueva brings this appeal alleging the trial court abused its discretion when it denied his motion for a new trial.
Before addressing the merits of the issue, we should address Villanueva's contention that this court should treat him as a pro se party and liberally construe his motion. Villanueva suggests his motion could be treated as either a motion for new trial or a K.S.A 60–1507 motion. However, he argues this court should liberally construe his motion as one pursuant to K.S.A. 60–1507 instead of a motion for a new trial. Treating his motion as a 60–1507 motion changes our review only so far as we review the denial of the motion itself. The underlying test for ineffective counsel is the same through either lens.
In Kansas, pro se pleadings are to be liberally construed to give effect to the content of the arguments rather than the labels and forms used to couch those arguments. See State v. Gilbert, 299 Kan. 797, 802, 326 P.3d 1060 (2014); see also Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004) (construing argument in K.S.A. 60–1507 motion as request for DNA testing under K.S.A.2003 Supp. 21–2512); In re Estate of Broderick, 34 Kan.App.2d 695, 701, 125 P.3d 564 (2005) (“While pro se pleadings are to be liberally construed so that relief may be granted if warranted by the facts alleged, this simply means that the substance of the pleading controls over its label.”). Other panels of this court have explained that the purpose of providing pro se litigants with especially liberal construction is to ensure substantial justice. See Bartling v. State, No. 103,597, 2011 WL 2637430, at *4 (Kan.App.2011) (unpublished opinion)) (“Under the Kansas Rules of Civil Procedure, all pleadings ‘shall be so construed as to do substantial justice.’ K.S.A. 60–208[f]. This is especially true of pro se pleadings.”); see also Davis v. State, No. 104,767, 2011 WL 5833504, at *4 (Kan.App.2011) (unpublished opinion); Wheeler v. State, No. 102,302, 2010 WL 1078469, at *2 (Kan.App.2010) (unpublished opinion).
Although Villanueva filed his motions for a new trial pro se, he was represented by appointed counsel, Probst, at the evidentiary hearing. At the evidentiary hearing, Probst indicated he did not file his own motion but instead was proceeding with the motion Villanueva had filed. The rationale for construing pro se pleadings is inapplicable here as he had the assistance of counsel during the hearing. Substantial justice, therefore, does not require liberal construction of Villanueva's motion.
We turn to the merits of the issue. Villanueva argues the trial court denied his motion for a new trial in error.
“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.2014 Supp. 22–3501. An appellate court reviews the trial court's decision on a motion for new trial for an abuse of discretion. State v. Schumacher, 298 Kan. 1059, 1069, 322 P.3d 1016 (2014).
A judicial action constitutes an abuse of discretion if (1) no reasonable person would have taken the view adopted by the trial court; (2) the action is based on an error of law; or (3) the action is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
Here, Villanueva argued for a new trial based on ineffective assistance of trial counsel. Claims of ineffective assistance of counsel present mixed questions of fact and law. Therefore, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts with no deference to the trial court. State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014).
To establish ineffective assistance of counsel, the defendant must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which was adopted by our Supreme Court in Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985). To satisfy the Strickland test, 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. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014).
The first prong of the Strickland test requires a finding that trial counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance is highly deferential and requires consideration of all the evidence. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). To establish the prejudice prong of the Strickland test, 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. Miller, 298 Kan. at 934. “In other words, defense counsel is ineffective if his or her efforts were objectively unreasonable as measured against prevailing professional norms and if counsel's errors were prejudicial.” Shumway v. State, 48 Kan.App.2d 490, 497, 293 P.3d 772 (2013) (citing Strickland v. Washington, 466 U.S. at 688, [1984] ), rev. denied October 1, 2013.
Villanueva's first claim of ineffectiveness regards Ball's failure to obtain a transcript of the preliminary hearing. Jorge, Adriana, and Jose testified at the preliminary hearing. Ball did not represent Villanueva at the preliminary hearing. Villanueva claims Ball could not have effectively impeached witnesses at trial without a transcript. However, Ball testified that he did not get the transcript due to the timeframe—he had 5 weeks until trial. Instead, Ball testified he could and did listen to the recording whenever he wanted. He testified he had it practically memorized. The trial court found Ball's testimony credible. Additionally, Villanueva did not point out any instance in which a witness testifying at trial contradicted himself or herself. Further, an independent review of the testimony from the preliminary hearing and the trial reflects that there were no significant contradictions. The testimony of each at trial was generally consistent with the testimony from the preliminary hearings.
Additionally, the transcriptionist did not testify, so the record does not reflect how long it would have taken to transcribe the hearing. However, when Ball was unable to obtain a written copy, he secured alternative access to the preliminary hearing. Ball listened to it enough times to familiarize himself with the testimony, took notes while he was listening, and took a copy of the recording to the trial. These efforts were not objectively unreasonable as measured against prevailing norms. Shumway, 48 Kan.App.2d at 497. Therefore, this argument fails to meet the first prong of the Stickland test.
Although we need not address the second prong, Villanueva has also failed to demonstrate any probability, let alone a reasonable one, that the outcome would have been different had Ball obtained a written transcript of the preliminary hearing. Ball testified that there was no way to impeach the witnesses at trial—something he recognized at trial because he was familiar with the witnesses' testimony from the preliminary hearing.
Villanueva next complains that Ball was ineffective for failing to request a separate trial. Although Villanueva and Rivera had independent trial counsel, Villanueva argues Ball was not competent because he failed to file a motion to sever the trial. In Kansas, “[t]wo ... defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crime.” K.S.A. 22–3202(3). However, “[w]hen two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.” K.S.A. 22–3204.
“[S]everance should be granted when it appears necessary to avoid prejudice and ensure a fair trial to each defendant. [Citation omitted.]” State v. Davis, 277 Kan. 231, 239, 83 P.3d 182 (2004). In State v. Carr, 300 Kan. 1, 94, 331 P.3d 544 (2014), our Supreme Court articulated the factors that must be considered when determining whether there is sufficient prejudice to mandate severance. The factors are:
“ “ ‘(1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) that the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.’ “ [Citations omitted.]”
However, “[t]rial counsel [is] not ineffective for not requesting severance of the trial when the law did not support holding separate trials.” Harris v. State, 288 Kan. 414, 418, 204 P.3d 557 (2009).
Here, Villanueva argues severance was proper because Villanueva “did not really know [Rivera] very well, and, therefore, the trial should have been severed.” Villanueva also contends that Rivera “was not allowed to” testify that Villanueva was not at the scene, though it is unclear what he means by this because Rivera did testify and he testified that he and Villanueva were looking at the landscaping, not robbing the Church's Chicken employees. Contrary to Villanueva's contention, severance was not proper in this instance.
The facts do not support the application of any of these factors. The codefendants presented mutually consistent defenses, and there was no showing that evidence in favor of Villanueva was excluded because of the joint trial, that evidence against Rivera was presented that would have been excluded against Villanueva in a separate trial, that a confession by Rivera existed that was prejudicial to Villanueva, or that either could have been compelled to testify against the other. The record indicates that the factors a court must consider when deciding whether to sever do not favor severance. The trial court agreed with Ball's testimony that a motion would not have made a difference, and therefore it was not unreasonable for Ball not to file a motion to sever. The trial court properly determined Ball was not ineffective for not requesting a separate trial because the law would not have supported separate trials. See Harris, 288 Kan. at 418.
Villanueva failed to meet the first prong of the Strickland test. Therefore, we need not discuss the prejudice prong.
The trial court did not abuse its discretion when it determined Ball provided effective counsel to Villanueva. The court's decision was a reasonable one, and it was based on a proper understanding of the facts of the case and of the law.
Villanueva also incidentally argues Ball failed to prepare for trial, which denied him of a fair trial. However, Villanueva presents this issue for the first time on appeal and provides no more than conclusory allegations. Any complaint regarding Ball's preparation for trial is deemed abandoned. See State v. Fulton, 292 Kan. 642, 651, 256 P.3d 838 (2011) (as a general rule, an appellate court will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal); State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013) (a point incidentally raised in a brief and not argued therein is also deemed abandoned). In any event, from the record it appears that Ball's representation was adequate.
For the reasons discussed herein, the record reveals no error in the trial court's ruling. The court properly denied Villanueva's motion for a new trial, and we therefore affirm.
Affirmed.