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noting "the Kansas Supreme Court found the same instruction error in both Engelhardt and Overstreet, but the court reversed only in Overstreet because it found the error in Engelhardt to be harmless."
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No. 106,003.
2012-08-31
Rasheem COLEMAN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Roger L. Falk, of Law Office of Roger L. Falk, of Wichita, and Kristen B. Patty, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Roger L. Falk, of Law Office of Roger L. Falk, of Wichita, and Kristen B. Patty, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Criminal procedure presents some of the most difficult questions a court—and a society—can encounter. There's certainly a need for finality in criminal cases. Witnesses need to be heard while memories are fresh, victims need resolution, and both defendants and the public have an interest in the speedy resolution of criminal charges.
But we also seek justice, and we do so in proceedings that—like all things human—are prone to error.
To handle the tension between these competing interests, state legislatures and Congress have enacted statutes providing time limits on some of the claims that those convicted of crimes may bring. In addition, courts interpreting those statutes—and sometimes addressing areas in which there's no statutory guidance—have developed additional rules to resolve these issues.
Rasheem Coleman's case presents an example of how this tension may play out in a real case, one in which a victim was nearly killed more than a decade ago and a convicted defendant remains in prison with more than a decade left on his sentence. We resolve Coleman's case, as we must, under the statutory standards adopted by the Kansas Legislature and the established caselaw standards announced by the Kansas Supreme Court.
When we do so, we find that Coleman has now raised a viable claim that a jury-instruction error may have resulted in his being convicted for an offense more serious than he otherwise might have been. But we also find that he has raised this claim too late.
Factual and Procedural Background
On September 11, 2000, two men entered a Wichita jewelry store, shot the store's owner in the chest, and left with cash and jewelry. Coleman didn't go into the store, but he helped to plan the robbery by sharing information about the store owner, his security practices, and the store layout. Coleman also drove the robbers to the store, drove them away afterward, and helped dispose of some evidence. The robbers gave Coleman a portion of the stolen jewelry.
The State prosecuted Coleman in a January 2001 jury trial as an aider and abettor, something that makes the person who aids in the commission of a crime equally guilty with other actors. See K.S.A. 21–3205(1).
There was a difference noted in the jury instructions, though, with respect to what had to be shown about Coleman's intent to commit aggravated robbery as compared to first-degree murder, which requires premeditation. The jury was instructed that Coleman could be convicted of aggravated robbery if he helped to carry out one crime (such as simple robbery, generally the taking of property from another by force or threat of bodily harm) and another crime (such as aggravated robbery, which is a robbery in which the robber had a dangerous weapon or inflicted bodily harm on the victim) “was reasonably foreseeable”:
“INSTRUCTION NO. 12
“As it relates to counts two and three [for aggravated robbery], a person who intentionally aids, abets or counsels another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.”
For attempted first-degree murder, however, the jury was instructed that an aider and abettor is guilty of “the crime committed” only if the person does so “with intent to promote or assist in its commission”:
“INSTRUCTION NO. 13
“As it relates to count one [for attempt to commit first-degree murder], a person who, either before or during its commission, intentionally aids, abets or counsels another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
Coleman was convicted of attempted first-degree murder and aggravated robbery, and he was sentenced to 346 months in prison. His initial appeal (called a direct appeal) met with temporary success when our court, in a split decision, ordered a new trial after concluding that Coleman's statements to police shouldn't have been admitted at his trial because they were obtained in violation of his constitutional rights. State v. Coleman, 30 Kan.App.2d 988, 56 P.3d 290 (2002) (2–1 decision). But the Kansas Supreme Court reversed that ruling and affirmed his convictions. State v. Coleman, 275 Kan. 796, 809–10, 69 P.3d 1097 (2003).
After losing a direct appeal, a person convicted of a crime can bring a habeas corpus action (considered a collateral attack on the conviction) under K.S.A. 60–1507. Coleman did so in 2004. He argued that his attorney had been ineffective in the direct appeal by failing to argue that the evidence hadn't been sufficient to convict him, among other arguments. As part of the insufficient-evidence argument, Coleman argued that the State never proved premeditation or intent to commit murder. The district court summarily denied the motion, and our court affirmed that decision. Coleman v. State, No 95,307, 2006 WL 2661565, at *1 (Kan.App.2006) (unpublished opinion).
After exhausting state remedies, a defendant can seek habeas corpus relief in the federal court. Coleman did that too, but his federal claims were denied in 2007. Coleman v. McKune, No. 07–3011–MLB, 2007 WL 2402726 (D.Kan.2007) (unpublished opinion). In the federal suit, Coleman didn't raise the issue he is now pursuing here.
In 2008, Coleman filed another state-court habeas motion under K.S.A. 60–1507. This time, he claimed that he should get a new trial based on newly discovered evidence related to the testimony of another man involved in the trial, who testified at a trial held after Coleman's, and based on a toxicology report from the victim. The district court summarily denied the motion as untimely and successive, and our court affirmed that decision. Coleman v. State, No. 102,385, 2010 WL 4668331, at *2–5 (Kan.App.2010) (unpublished opinion), rev. denied 291 Kan. 910 (2011).
Coleman filed a third K.S.A. 60–1507 motion—the one now before us—on February 10, 2011. In it, he argues that the jury instructions about premeditation were in error, that the prosecutor committed misconduct in comments in closing argument about premeditation, and that his convictions should be set aside because of these errors. The district court again summarily denied the motion as untimely and successive, and Coleman has again appealed to this court. Because the district court did not hear any evidence, we review the matter independently without any required deference to the district court. See Wimbley v. State, 292 Kan. 796, 804–05, 275 P.3d 35 (2011).
Analysis
On appeal, Coleman recognizes that he has “three procedural hurdles to overcome.” First, he must show that he has provided a viable basis for relief. The district court is required to grant an evidentiary hearing unless the case file conclusively shows that the movant is not entitled to relief. K.S.A. 60–1507(c); Bellamy v. State, 285 Kan. 346, 357, 172 P.3d 10 (2007). Second, because Coleman had filed earlier K.S.A. 60–1507 motions, he has to show “exceptional circumstances” to prevent the dismissal of his motion as successive and an abuse of remedy. See State v. Kelly, 291 Kan. 868, 872–73, 248 P.3d 1282 (2011). Exceptional circumstances are “unusual events or intervening changes in the law that prevented the defendant from raising the issue in the preceding 60–1507 motion.” Wimbley, 292 Kan. 796, Syl. ¶ 1. Third, because Coleman filed this motion well outside the 1–year time limit in K.S.A. 60–1507(f)(1), he must show that an extension of that deadline is necessary to prevent a manifest injustice. K.S.A. 60–1507(f)(2); Kelly, 291 Kan. at 873.
Based on our review, Coleman has not overcome two of the three hurdles.
Coleman Has a Potentially Viable Claim.
Coleman's substantive claim of error in his trial relates to the two jury instructions on premeditation. His argument is based on two Kansas Supreme Court cases that came out after Coleman's direct appeal was denied: State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005), and State v. Overstreet, 288 Kan. 1, 200 P.3d 427 (2009).
In both of those cases, the court said that when a defendant is charged with first-degree murder as an aider and abettor, the State must prove beyond a reasonable doubt that the defendant had the required premeditation for first-degree murder. Engelhardt, 280 Kan. at 132;Overstreet, 288 Kan. at 11–12. In both cases, the trial court had given aiding-and-abetting instructions similar to the ones given in Coleman's case. In other words, in both cases the instructions said in one place that an aider and abettor was liable if the person helped to carry out one crime and another crime was “reasonably foreseeable” but in another place that the defendant had to act “with [the] intent to promote or assist in [the] commission” of the charged crime.
In Engelhardt, the court said that the use of the “reasonably foreseeable” instruction along with a charge of aiding and abetting first-degree murder essentially allowed the jury to convict on a different charge—felony murder, which applies to a reasonably foreseeable murder that occurs during the commission of an inherently dangerous felony. But the court found the error in Engelhardt had no effect on the jury's verdict and thus was harmless. 280 Kan. at 133–34. The victim in Engelhardt had been stabbed about 55 times, and Engelhardt had definitely been one of the attackers, whether or not he struck the fatal blow.
In Overstreet, however, the court reversed the conviction and sent the matter back for a new trial. On the facts in Overstreet, the court concluded that there was a real possibility that the jury had convicted the defendant of first-degree, premeditated murder only because it concluded that the murder was a reasonably foreseeable consequence of the aggravated assault for which the jury separately convicted the defendant. 288 Kan. at 14–15.
The trial court in Coleman's case did a better job of instructing the jury than the courts did in Engelhardt and Overstreet. Here, the trial court prefaced the “reasonably foreseeable” instruction by saying that it related to the aggravated-robbery counts. Accordingly, Coleman's case doesn't fit squarely within the holding of either Engelhardt or Overstreet.
But the prosecutor's closing argument improperly argued reasonable foreseeability on the first-degree murder charge:
“[D]o you think it was reasonably foreseeable that [the victim] might have been killed or that they might have attempted to kill him ... ? If you say that's reasonably foreseeable, ... he is held accountable for that.”
Thus, the prosecutor's comment contradicted the court's instruction that the language on reasonable foreseeability applied only to the aggravated-robbery charge. As the court noted in Overstreet, 288 Kan. at 14, these comments by the prosecutor made the potential confusion between the two aiding-and-abetting instructions worse. In addition, in Instruction No. 12, the court told the jury that a person who aids or abets another “to commit a crime is also responsible for any other crime ” that's reasonably foreseeable. (Emphasis added.) Although Instruction No. 12 purported to relate only to the aggravated-robbery charges, jurors might well have become confused based on the broad statement about responsibility for “any other crime.”
Especially given the prosecutor's argument, there appears to be a viable claim that an instruction error (one that was capable of misleading the jury) was made in Coleman's trial, and the decisive question would be whether the error was harmless.
A similar issue was considered by our court on Coleman's direct appeal. Coleman argued that the trial court had erred by declining to give an additional instruction Coleman had requested on premeditation. That instruction would have told the jury that “premeditation means to have thought over the matter beforehand” and that there must be evidence “that the accused planned, contrived and schemed beforehand to kill.” Coleman, 30 Kan.App.2d at 1002. Our court noted evidence that Coleman had alerted the men who would go into the store that the owner had a gun and that one of those men then told Coleman that “if the owner pulled a weapon on him, it would be ‘ “the last mistake he makes.” ‘ “ 30 Kan.App.2d at 989. Our court found no error in the failure to give the additional instruction Coleman had requested on premeditation in part because of this evidence, which our court found to be “clear” evidence of premeditation:
“[T]here is very little possibility that the jury was confused by the instruction given. The evidence of premeditation in this case is clear: [Codefendant] Merrills' statement indicated that prior to the robbery, he considered killing the owner of the shop if he brandished a weapon during the robbery.” 30 Kan.App.2d at 1004.
Our court's conclusion that the evidence of premeditation was clear may have depended in part upon its conclusion that the jury instructions had been “an accurate statement of the applicable law,” 30 Kan.App.2d at 1003, a conclusion that may have been undercut by the later decisions in Engelhardt and Overstreet, But the Kansas Supreme Court did not grant review of our court's ruling on Coleman's challenge to the jury instructions on premeditation. See Coleman, 275 Kan. at 797. Arguably, having raised a challenge to the instructions on premeditation and having had it decided against him, Coleman can no longer raise an issue about those instructions under res judicata principles. See Kelly, 291 Kan. at 874–75. If Coleman is not barred under res judicata principles from bringing a further challenge regarding the instructions on premeditation, then we are not sure what basis our court had for its conclusion that there was clear evidence of premeditation: While there does appear to be clear evidence that a shooting was reasonably foreseeable ( if the owner pulls a weapon, that will be the last mistake he makes), evidence of premeditation to kill the store owner is not so clear.
The parties' briefs have not analyzed the harmless-error issue, and we have not reached any conclusion on it. For the purposes of this opinion, we simply conclude that Coleman has raised a potentially viable issue that had the jury been properly instructed, it may not have convicted him of aiding and abetting first-degree murder. We need not further analyze this issue to resolve the case because Coleman has not overcome the other procedural hurdles.
Coleman Has Not Shown Exceptional Circumstances.
Coleman's second hurdle is the need to show exceptional circumstances. The district court is not required to “entertain a second or successive motion for similar relief on behalf of the same prisoner.” K.S.A. 60–1507(c); Supreme Court Rule 183(d) (2011 Kan. Ct. R. Annot. 259). Thus, a second, third, or later K.S.A. 60–1507 motion may be dismissed unless the movant shows exceptional circumstances that justify hearing it. Supreme Court Rule 183(c); Wimbley, 292 Kan. 796, Syl. ¶ 1.
Exceptional circumstances include an “intervening change in the law” that—having happened in the time that has intervened since the earlier K.S.A. 60–1507 motion—couldn't have been raised earlier. See Wimbley, 292 Kan. 796, Syl. ¶ 1. Coleman argues that the Overstreet decision was such a change.
Coleman picks Overstreet rather than Engelhardt because Engelhardt came out before Coleman filed his secondK.S.A. 60–1507 motion and thus could have been raised there. Coleman suggests that he couldn't have known he had a viable issue until Overstreet came out in January 2009: “Until Overstreet ..., after Coleman's second motion was filed, it was not clear that the giving of PIK Crim.3d 54.96 in a case where the defendant was charged with attempted premeditated first-degree murder was anything more than harmless error.” As we've noted, the Kansas Supreme Court found the same instruction error in both Engelhardt and Overstreet, but the court reversed only in Overstreet because it found the error in Engelhardt to be harmless.
But the Engelhardt error was found harmless only because of overwhelming evidence in that case against the defendant, not because the error itself wasn't sufficient to warrant relief. 280 Kan. at 133–34.Engelhardt was decided in September 2005, and Coleman's second K.S.A. 60–1507 motion was filed nearly 3 years later, in April 2008. Coleman could have raised this issue in his 2008 motion, just as Overstreet raised it in his appeal. (Overstreet raised the issue before April 2008; he had raised it before our court, which ruled against him in February 2008. See State v. Overstreet, No. 96,682, 2008 WL 360642, at *2–4 (Kan.App.2008) (unpublished opinion), rev'd288 Kan. 1, 200 P.3d 427 [2009].)
Even if only Overstreet had been issued, Coleman's case for exceptional circumstances still has two flaws. First, an intervening change in the law is a term of art (one that has a specific meaning apart from its general usage) when used in this context, and Overstreet wasn't such a change. Second, even intervening changes in the law are given application to past cases in only limited circumstances that don't apply here.
An intervening change in the law for the purpose of showing exceptional circumstances generally is “an abrogation of a prior rule.” See Alires v. State, 21 Kan.App.2d 676, 678, 906 P.2d 172 (1995); Humphrey v. State, No. 101,872, 2010 WL 2217360, at *2 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1093 (2010). Neither Engelhardt nor Overstreet purported to abrogate any prior ruling. Coleman could have raised this issue in his own direct appeal, and he certainly could have raised it in his second K.S.A. 60–1507 motion. See Wimbley, 292 Kan. at 805–06. We do not find an intervening change in the law here that could demonstrate exceptional circumstances and justify the untimely habeas motion.
Even if this were an intervening change in the law that overturned some prior ruling, ordinarily new rulings aren't applied to cases that are already final, having already completed the direct-appeal process. Even new rules of constitutional criminal procedure are not applied retroactively unless the rule is a “watershed rule” representing something “implicit in the concept of ordered liberty” or the rule puts certain conduct beyond the government's power to prosecute it. Whisler v. State, 272 Kan. 864, Syl. ¶ 1, 36 P.3d 290 (2001) (citing Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 [1989] ),cert. denied535 U.S. 1066 (2002).
Coleman's direct appeal ended when the Kansas Supreme Court ruled against him in May 2003. Coleman, 275 Kan. 796. New legal rulings after that date generally would not apply to him unless they meet the tests noted above, and nothing in in Engelhardt or Overstreet meets those tests.
In sum, Coleman bases his claim of exceptional circumstances on the argument that Overstreet represented an intervening change in the law. Under established caselaw, Overstreet didn't constitute an intervening change in the law. Moreover, Engelhardt had come out before Coleman filed his second K.S.A. 60–1507 motion, so Coleman could have raised this issue and cited Engelhardt in his prior K.S.A. 60–1507 motion. See Wimbley, 292 Kan. 796, Syl. ¶ 1. Coleman hasn't shown exceptional circumstances to justify his raising this legal issue for the first time in 2011.
Coleman Has Not Shown Manifest Injustice.
Coleman's final procedural hurdle is that he “must show that an extension of time is necessary to prevent a manifest injustice. ‘Manifest injustice’ has been described as meaning obviously unfair or shocking to the conscience.” Kelly, 291 Kan. 868, Syl. ¶ 3.
Perhaps we need not address this subject at all—we've already concluded that Coleman has not shown exceptional circumstances, and his motion cannot be heard without that showing. In addition, the manifest-injustice standard is perhaps the hardest to address because the standards given for it (obviously unfair or shocking to the conscience) are more subjective.
Coleman argues that extension of the 1–year deadline is necessary to prevent manifest injustice because “[n]othing is more fundamental to the American system of justice than the requirement that the prosecution prove each and every element of the crime charged beyond a reasonable doubt.” That is certainly an important value, but so is the finality of proceedings.
Coleman filed his latest motion more than a decade after he committed these crimes. It's obviously harder to prosecute a crime after a decade than it is to do so shortly afterwards: witnesses may be unavailable, memories often have dimmed, and physical evidence may have been misplaced. So retrying a case years after the original trial raises the chance of acquittal, even if the defendant is guilty. And there can be no doubt here that Coleman committed serious crimes September 11, 2000. The only real question is whether he was convicted of a more serious offense than he should have been based on a jury instruction that may have misled the jury.
We conclude that Coleman has not demonstrated that the refusal to extend the 1–year time limit to consider his motion is required to prevent manifest injustice. Given the balance that must be made between addressing every issue a defendant may raise and achieving finality in criminal cases, we do not find the refusal to consider Coleman's new claim on its merits due to the 1–year time limit obviously unfair or shocking to the conscience.
The district court's judgment is affirmed.