Opinion
No. 110,551.
2015-03-6
Neil EDGAR, Sr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.Catherine A. Zigtema, of Law Office of Kate Zigtema, LC, of Lenexa, for appellant.Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Catherine A. Zigtema, of Law Office of Kate Zigtema, LC, of Lenexa, for appellant. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ. PER CURIAM.
Neil Edgar, Sr., appeals the summary dismissal of his motion filed pursuant to K.S.A. 60–1507. The district court dismissed Edgar's motion as an improper second K.S.A. 60–1507 motion and because Edgar had failed to demonstrate manifest injustice for consideration of the motion. We affirm.
In 2003, a jury convicted Edgar of first-degree felony murder in the death of his adopted son, B.E., as well as two counts of child abuse regarding M.E. and C.E., two of his other adopted children. Edgar's wife, Christy Edgar, and Chasity Boyd were charged in the case as well. Just before opening statements at trial, Christy pled guilty to all of the charges.
In 2006, the Kansas Supreme Court affirmed Edgar's convictions on direct appeal in State v. Edgar, 281 Kan. 47, 127 P.3d 1016 (2006) ( Edgar I ). The court held: (1) The evidence was sufficient to support giving of an instruction on aiding and abetting; (2) the evidence that Edgar intentionally aided and abetted child abuse was sufficient evidence of intent to support the felony-murder conviction; (3) the evidence did not warrant jury instructions on lesser included offenses of felony murder; (4) the prosecutor's erroneous statement in closing argument as to intent was harmless; (5) the prosecutor's other statements and questioning did not amount to misconduct; and (6) the evidence was sufficient to support the convictions. 281 Kan. at 61–62, 65–66, 68–69.
Approximately 1 year later, in March 2007, Edgar filed his first motion pursuant to K.S.A. 60–1507. The district court denied Edgar's motion without appointing counsel or without holding an evidentiary hearing. Edgar appealed that decision and argued: (1) he had received ineffective assistance from his trial and appellate attorneys; (2) he was prejudiced by the jury pool selection procedure used by the trial court; (3) he was denied his rights under the Sixth Amendment to the United States Constitution to confront witnesses; and (4) there was insufficient evidence presented to convict him of any of the crimes with which he was charged. See Edgar v. State, No. 100,477, 2009 WL 5206231, (Kan.App.2009) (unpublished opinion) ( Edgar II), rv'd on single issue subject to rev. granted in 294 Kan. 818, 283, 283 P.3d 152 (2012) ( Edgar III ). This court affirmed Edgar's convictions on all arguments raised except one. The Edgar II court reversed the district court's decision to summarily deny Edgar relief on the concession of guilt issue and remanded the case for an evidentiary hearing to determine whether trial counsel's comment during closing argument was a concession of guilt for the two child abuse charges and, if so, whether it was an objectively reasonable trial strategy. 2009 WL 5206231, at *3.
Edgar filed a petition for review, challenging the Edgar II court's rulings on the issues it affirmed. The State filed a cross-petition for review, arguing the court had erred in not considering the prejudice prong of the ineffective assistance of counsel test prior to reversing the district judge's denial of Edgar's K.S.A. 60–1507 motion. The Kansas Supreme Court denied Edgar's petition for review, but granted the State's cross-petition. See Edgar III, 294 Kan. at 835–36.
On July 27, 2012, the Kansas Supreme Court reversed the Court of Appeals in line with the State's arguments in Edgar III, 294 Kan. at 829–30, 843–44. The Court held that defense counsel's concessions or proposed compromises regarding child abuse of the other two children did not contradict the defense theory that Edgar did not actively participate in the discipline of the children. Further, it continued the defense theme that the discipline of B.E. was of a different character than previous discipline or the type of discipline applied to M.E. and C.E. on the night of B.E.'s death and that Edgar had not done anything to aid and abet that type of punishment on that night or ever. The court also concluded, as it had done in the direct appeal, that the evidence against Edgar was overwhelming, particularly in light of M.E.'s and C.E.'s testimony that the children were being punished because they had angered Edgar and in light of C.E.'s testimony that Edgar saw B.E. wrapped in duct tape to his waist. Edgar then drove Christy to the store, and Christy returned from the store with more duct tape used to complete the taping of B.E. like a mummy. 294 Kan. at 843–46. The court concluded:
“In light of the nature of closing arguments, the nature of the defense, and the overwhelming evidence against Edgar, our de novo review of the motion, files, and records of the case lead us to conclude Edgar failed to establish a reasonable probability that, but for defense counsel's errors, he would have been found not guilty of felony murder.” 294 Kan. at 846.
Approximately 4 months after the denial of his first motion filed pursuant to K.S.A. 60–1507 and over 6 years after his direct appeal, Edgar filed his second motion pursuant to K.S.A. 60–1507. He raised a multitude of issues some of which can be catalogued.
First, Edgar argues that informing the jury of Christy's guilty plea resulted in ineffective assistance of counsel, a violation of his due process rights, and also the right to a fair trial. Next, Edgar contends the prosecutor calling him a liar was prosecutorial misconduct; there was ineffective assistance of counsel because there was no objection; and there was error by the trial court for not instructing the jury to disregard the prosecutor's improper comment. Edgar raises a myriad of additional claims:
1. Ineffective assistance of appellate counsel for not raising all the issues raised here;
2. violation of his constitutional rights to a fair trial when defense counsel changed the plea to guilty on two charges without his consent or knowledge;
3. ineffective assistance of counsel for stipulating to prior conduct that supported the present offense;
4. speedy trial violations and ineffective assistance of counsel when counsel advised him to waive his right to a speedy trial because of counsel's caseload;
5. ineffective assistance of counsel when counsel failed to follow up on a motion for bill of particulars;
6. ineffective assistance of counsel for failing to provide him with a copy of the bill of particulars and not providing a copy of the State's response to the bill of particulars; and
7. due process violation when he was not given a proper notice of the intent by the State to add an aiding and abetting theory that was not in the original complaint.
The State responded to Edgar's motion by arguing that K.S.A. 60–1507 proceedings may not be used as a substitute for a second appeal and the motion was time-barred by the 1–year statute of limitations.
The district court summarily denied Edgar's motion. The court found Edgar's motion was time-barred and Edgar had failed to demonstrate manifest injustice. The court found all of the issues involving Christy's guilty plea did not rise to a level of manifest injustice because Edgar relied on the guilty plea in his defense and the evidence showed differing participation by Christy and Edgar's knowledge and participation. The court also held Edgar's claim that appellate counsel failed to raise various direct appeal issues should have been raised as ineffective assistance of counsel in Edgar's first K.S.A. 60–1507 motion. Nevertheless, the court found none of the issues rose to a level of manifest injustice.
Finally, the district court found Edgar's claims that his trial counsel erred in admitting to the jury that Edgar was guilty of the child abuse claims against C.E. and M.E. had been previously addressed and denied. Edgar filed a pro se notice of appeal and was appointed counsel on appeal.
On appeal, Edgar's counsel argues two claims of ineffective assistance of counsel raised in Edgar's motion establish exceptional circumstances for consideration of his second K.S.A. 60–1507 motion and a manifest injustice would occur if we deny his claims. First, Edgar argues he was deprived of a fair trial due to prosecutorial misconduct by the State calling Edgar a liar during cross-examination and closing argument and appellate counsel's failure to raise this issue in the first K.S.A. 60–1507 motion. Second, Edgar argues appellate counsel failed to properly argue prejudice in the first K.S.A. 60–1507 motion. Edgar contends if his appellate counsel had raised these issues on appeal, there is a reasonable probability the outcome of the appeal would have been different.
Edgar also reinvents his concession of guilt issue by arguing that appellate counsel in the first K.S.A. 60–1507 proceeding raised the concession of guilt issue but failed to properly argue and brief the prejudice element which would have won on appeal. Edgar contends had appellate counsel argued the exception under United States v. Cronic, 466 U.S. 648, 662, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), then a reversal would have been required without a demonstration of prejudice. He relies on Justice Johnson's dissent in Edgar I, 294 Kan. at 847–49, in arguing counsel usurped Edgar's right to determine his own plea and abdicated counsel's role by failing to argue prejudice and relieved the State of its burden of proof.
Edgar acknowledges the Kansas Supreme Court found he was unable to demonstrate prejudice in the first K.S.A. 60–1507 proceeding. See 294 Kan. at 839–46. However, he contends the court limited its consideration of prejudice to the concession of guilt issue. He contends we should examine prejudice in light of all of his claimed errors. Edgar claims the two issues he raises in this appeal—being called a liar and counsel's failure to argue prejudice—would have both increased the probability that the outcome would have been different. Edgar also briefly argues the cumulative effect of these errors demonstrated that he has a colorable claim of merit to justify a hearing.
Edgar faces two insurmountable hurdles in this case. First, district courts are not required to entertain a second or successive K.S.A. 60–1507 motion requesting similar relief on behalf of the same defendant. K.S.A. 60–1507(c); Supreme Court Rule 183(d) (2014 Kan. Ct. R. Annot. 285; see State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013). “A movant in a K.S.A. 60–1507 motion is presumed to have listed all grounds for relief; thus, the prohibition against successive motions does not only bar claims raised in prior motions, it also prohibits any claims that could have been raised in a prior motion.” Trotter, 296 Kan. 898, Syl. ¶ 2. Absent a showing of exceptional circumstances justifying the movant's failure to allege a ground for relief in the previous proceeding, a district court can dismiss a successive motion as an abuse of remedy. 296 Kan. at 904; State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011).
Exceptional circumstances under K.S.A. 60–1507 and Supreme Court Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 285) “have been defined as ‘unusual events or intervening changes in the law” ‘ by our Kansas Supreme Court. Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009). Additionally, exceptional circumstances may occur when
“[t]here was ineffective assistance of trial counsel in failing to object regarding an issue; there was ineffective assistance of direct appeal counsel in failing to raise an issue; or there was newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and movant at the time of the trial and direct appeal.” State v. Trotter, 288 Kan. 112, 127, 200 P.3d 1236 (2009).
Second, district courts are required to hold an evidentiary hearing on a K.S.A. 60–1507 motion unless the motion, files, and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60–1507(b); Supreme Court Rule 183(f) and (j) (2014 Kan. Ct. R. Annot. 285). K.S.A. 60–1507(f)(l) provides, in relevant part, that a criminal defendant must bring his or her application for writ of habeas corpus within 1 year of “[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” The time limitation articulated in K.S.A. 60–1507(f)(l) “may be extended by the court only to prevent a manifest injustice.” K.S.A. 60–1507(f)(2). Our Supreme Court has interpreted the phrase “ ‘ “manifest injustice,” ‘ “ in the context of K.S.A. 60–1507(f)(2), to mean “ ‘ “obviously unfair” or “shocking to the conscience.’ “ [Citations omitted.]” State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013). It is the movant's burden to establish manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g) (2014 Kan Ct. R. Annot. 285).
Edgar's first issue, claiming various culpable parties for prosecutorial misconduct in calling him a liar, should have been raised in his first K.S.A. 60–1507 and is denied as an abuse of the habeas remedy. The K.S.A. 60–1507 statute is not to be used in such a way as to thwart the policy against piecemeal appeals. In Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977), our Supreme Court stated this about the great writ: “Some degree of finality in the criminal appeal process must be achieved to prevent endless piecemeal litigation in both the state and federal courts. The time consumed and wasted by piecemeal litigation impedes the dispatch of business in the courts.” Edgar has given no explanation why he did not raise this issue in his first K.S.A. 60–1507; consequently, we find no exceptional circumstances exist for us to consider the issue now.
Nevertheless, a review of the State's cross-examination of Edgar reveals that Edgar in fact admitted on the witness stand to lying multiple times. Edgar testified, “I lied” when he told the hospital where he lived. Edgar admitted that he lied about telling the hospital that he gave B.E. a melatonin pill to help him sleep and that may have caused him to stop breathing. Edgar admitted that he lied in order to protect other members of the family. Edgar again testified, “I lied” about not telling the police about seeing B.E. restrained or tied up the night before. The prosecutor's statements in closing argument about the “low credibility” of Edgar and all the “untruths” Edgar admitted to in cross-examination was clearly within the prosecutor's wide latitude in discussing the evidence with the jury. See State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013) (were comments within the prosecutor's wide latitude; if not, did the comments deny the defendant a fair trial).
Next, in Edgar III, the court considered and denied Edgar's concession of guilt issue. The court found the arguments based on Cronic, 466 U.S. 648, and State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000), were distinguishable and ultimately the evidence was overwhelming under the Strickland ineffective assistance of counsel analysis. Edgar III, 294 Kan. at 840–44, 846; Edgar I, 281 Kan. at 69; see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed 2d 674 (1984). Edgar's arguments may have found favor in Justice Johnson's dissent in Edgar III, 294 Kan. at 847–49, but not with the majority opinion.
We first review the appropriate legal standards to be employed in considering whether manifest injustice mandates an extension of time in which to file the K.S.A. 60–1507 motion. In Vontress v. State, 299 Kan. 607, 608, 325 P.3d 1114 (2014), our Supreme Court held that a movant's “failure to provide the reasons for the delay does not automatically exclude the late-filed motion. Rather, manifest injustice must be determined based on the totality of the circumstances in each case.” The Supreme Court clarified the standard the courts should use when determining whether manifest injustice requires extending the 1–year–time limitation:
“[C]ourts conducting a manifest injustice inquiry under K.S.A. 60–1507(f)(2) should consider a number of factors as a part of the totality of the circumstances analysis. This nonexhaustive list includes whether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60–1507 motion within the 1–year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence.
“All of the factors considered under the totality of the circumstances need not be given equal weight, and no single factor is dispositive. [Citations omitted.]” 299 Kan. at 616–17.
Employing this three-step analysis, it is clear Edgar has not shown manifest injustice in the failure of his counsel in the first K.S.A. 60–1507 proceeding to address prejudice within the context of the confession of guilt issue. Edgar has failed to raise an issue deserving of the district court's consideration and has not raised a colorable claim of actual innocence. Prejudice has been discussed at every station in the appellate review of Edgar's conviction in light of all the claims and errors he has raised. Every time the Kansas Supreme Court has considered Edgar's appeal, it has repeatedly found the evidence of Edgar's guilt was overwhelming:
“The evidence of child abuse in this case was strong and conclusive. There was overwhelming evidence that [B.E.] was bound with duct tape like a mummy, his mouth blocked with a foreign object, and there were ligature marks on his wrists and ankles. These facts were strong evidence of cruel and inhuman corporal punishment constituting child abuse under K.S.A. 21–3609. There was also strong evidence that Edgar aided and abetted these acts. The jury either believed that Edgar aided and abetted the child abuse, in which case he was guilty of felony murder, or it believed that he had not aided and abetted the abuse, in which case he would have been found not guilty. The trial court did not err in refusing to give lesser included instructions for felony murder.” Edgar I, 281 Kan. at 61–62.
“In this case, as previously discussed, there was overwhelming and direct evidence of child abuse. The only question was whether Edgar aided and abetted in its commission. Given Edgar's duty as a parent to protect his child, his admission that he saw [B.E.] taped by the hands and legs on the night he died, the circumstantial evidence that he knew [B.E.] was gagged, and his admission that he “knew of some restriction” of the children but did not stop it even though, according to the evidence, this type of punishment had been used for a significant period of time and repeatedly, there was also direct and overwhelming evidence that Edgar aided and abetted the abuse of [B.E.]. Under these circumstances, any error in the prosecutor's closing argument was harmless beyond a reasonable doubt .” Edgar I, 281 Kan. at 65–66.
“Regarding Edgar's burden, Edgar argues simply that ‘but for [defense counsel's] deficient conduct, a not guilty verdict may have resulted.’ (Emphasis added.) This argument does not acknowledge Edgar's burden to establish a reasonable probability that a ‘not guilty’ verdict would have resulted. Furthermore, Edgar presents no factual argument to rebut the district judge's conclusion that the evidence was overwhelming or its conclusion that a different approach would not have changed the outcome. Indeed, the conclusory nature of Edgar's arguments is reason enough to reject his motion. See Trotter, 288 Kan. 112, Syl. ¶ 12; Swenson, 284 Kan. at 938.” Edgar III, 294 Kan. at 845.
“Finally, as this court held in Edgar I and the district judge who presided over Edgar's trial held in summarily denying Edgar's K.S.A. 60–1507 motion, the evidence against Edgar was overwhelming, particularly in light of [M.E.'s] and [C.E.'s] testimony that the children were being punished because they had angered Edgar and in light of Christon's [B.E.'s older sibling] testimony that Edgar saw Brian wrapped in duct tape to his waist, Edgar then drove Christy to the store, and Christy returned from the store with duct tape that was used to complete the taping of Brian like a mummy. In light of the nature of closing arguments, the nature of the defense, and the overwhelming evidence against Edgar, our de novo review of the motion, files, and records of the case lead us to conclude Edgar failed to establish a reasonable probability that, but for defense counsel's errors, he would have been found not guilty of felony murder.” Edgar III, 294 Kan. at 846.
We affirm the summary dismissal of Edgar's K.S.A. 50–1507 motion.
Affirmed.