Opinion
No. 111234.
07-10-2015
Anthony S. KIDD, Appellant, v. STATE of Kansas, Appellee.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Anthony S. Kidd appeals from the trial court's judgment denying his ineffective assistance of counsel claims in his K.S.A. 60–1507 motion without holding an evidentiary hearing. Kidd contends that his trial attorney was ineffective: (1) by failing to impeach a witness who testified that she saw Kidd shoot and kill Tynus Gulley; (2) by not procuring an expert to counter the coroner's testimony; and (3) by failing to request a self-defense instruction. Since we find that each claim either lacks a sufficient factual basis or fails to demonstrate that trial counsel was ineffective, we affirm the district court's decision.
Facts
In Kidd's direct appeal, the Kansas Supreme Court detailed the facts of the case as follows:
“On May 7, 2007, Ladria Gulley returned home from work at approximately 5:30 p.m. to find her husband, Tynus Gulley, Sr., working outside the house. Later that evening, Ladria's cousin, Les Labroi, stopped by the Gulleys' home and found Tynus mixing cement outside and Kidd ‘just standing there, drinking.’
“When Labroi asked why the two men were working in the dark, Kidd pulled out a ‘little short shotgun’ and said ‘ain't nobody coming back here. I'm a gator, you know ... my eyes come up out of the water.’ Labroi characterized Kidd's comments as ‘just crazy talk, really.’ At trial, when the prosecutor questioned Labroi regarding Kidd's level of intoxication, Labroi testified Kidd ‘was probably buzzed a little bit, but he wasn't-he wasn't real drunk.’ Labroi testified he could tell that Kidd was drinking by the things he was saying, including his several references to himself ‘as a vicious animal or something like that.’
“After Labroi left, Tynus and Kidd came inside and played video games. Ladria testified Kidd drank brandy and made ‘snide little remarks.’ At some point Kidd made a comment about Tynus' brother, and Tynus asked Kidd to leave. Ladria intervened, and a physical altercation ensued between Kidd, Tynus, and Ladria.
“Ladria testified at trial that she assumed Kidd may have been drunk because he drank from a bottle of alcohol and talked a lot. However, Ladria agreed that Kidd's intoxication did not prevent him from communicating, fighting, and running out of the house.
“Eventually, Kidd left the house, and a few minutes later, Ladria heard a gunshot and the sound of glass shattering in the kitchen. Ladria and Tynus ran out of the house and onto the porch, where Kidd stood in front of the house. Ladria saw a flash and heard a gunshot before closing her eyes. When she opened her eyes, she saw Tynus fall and realized he had been shot. Kidd took off running. Ladria ran to the neighbor's house and asked the neighbor to call 911. Tynus later died from the gunshot wounds.
“Several hours later, at approximately 1 a.m., May 8, 2007, Keith Johnson was walking on a residential street in a neighborhood near the Gulleys' home and stopped in front of an old garage to roll a cigarette. As he did so, he heard a loud blast. Johnson realized he had been shot when he felt a burning sensation in his left hand. He looked up and saw Kidd walking toward him with a shotgun. Johnson apologized to Kidd, attempting to plead for his life. Kidd told Johnson to shut up and then began to run down the street. Johnson ran in the opposite direction and called 911 from a pay phone. Ultimately, Johnson's injuries necessitated amputation of four fingers on his left hand.
“The State charged Kidd with one count of first-degree premeditated murder of Tynus Gulley, one count of aggravated assault of Ladria Gulley, one count of criminal discharge of a firearm at an occupied dwelling, and one count of aggravated battery of Keith Johnson.
“In addition to the testimony discussed above, the evidence at trial established that sometime late on May 7, 2007, or very early on May 8, 2007, Kidd checked into Room 2 of the Bellboy Motel. Several months later, the same employee who checked Kidd into Room 2 was cleaning that room when he moved the dresser and found a shotgun.
“At trial, Labroi identified the gun found in the motel as the gun Kidd pulled out at the Gulleys' home on May 7, 2007. A firearm/tool mark examiner compared the breech face markings on the shotgun shells found at both crime scenes with a shell fired from Kidd's shotgun and concluded the shotgun shells found at both crime scenes were fired from Kidd's shotgun.
“The jury found Kidd guilty on all four counts. The district court sentenced Kidd to a life sentence with a minimum of 25 years for the murder conviction and a consecutive term of 52 months for the three remaining counts.” State v. Kidd, 293 Kan. 591, 592–94, 265 P.3d 1165 (2011).
In his direct appeal to the Kansas Supreme Court, Kidd argued that (1) he was entitled to a voluntarily intoxication defense instruction; (2) the prosecutor committed misconduct for failing to instruct witnesses regarding an order in limine that had been entered prior to trial; (3) cumulative error was present; and (4) the State improperly used prior convictions to enhance his sentence without proving them beyond a reasonable doubt. However, our Supreme Court rejected each of these claims and affirmed Kidd's convictions. 293 Kan. at 596, 598–99.
In addition, Kidd argued on direct appeal that several witnesses committed perjury, the coroner incorrectly testified regarding the manner in which Tynus was shot, and the State fabricated a report regarding the examination of the shotgun used to commit the crimes. The Kansas Supreme Court characterized these claims as a challenge to the sufficiency of the evidence and concluded that a rational factfinder could have found Kidd guilty beyond a reasonable doubt on all the counts. 293 Kan. at 600. Furthermore, the Kansas Supreme Court found that “[t]he evidence against Kidd was direct and overwhelming.” 293 Kan. at 598. However, it declined to rule on Kidd's assertion that his trial counsel was ineffective, finding that Kidd failed to raise this issue before the district court. 293 Kan. at 600–01.
On August 10, 2012, Kidd filed a pro se K.S.A. 60–1507 motion in Sedgwick County District Court. Among the several arguments Kidd set forth in the motion, he claimed that the prosecutor violated his due process rights and deprived him of his liberty by presenting testimony known to be perjured. Subsequently, the district court appointed counsel to represent Kidd. In a pretrial questionnaire filed by his attorney on December 14, 2012, Kidd asserted (1) that the prosecutor committed misconduct by offering perjured testimony at trial; (2) that his trial counsel was ineffective by failing to secure an independent expert to counter the coroner's testimony, by not “vigorously argu[ing]” for a voluntary intoxication instruction, and by not requesting a self-defense instruction; and (3) that there was insufficient evidence to convict him at trial.
The district court conducted a nonevidentiary hearing on February 14, 2013. After hearing the arguments presented by counsel, the district court denied Kidd's K.S.A. 60–1507 motion and that decision was journalized on February 28, 2013. Kidd thereafter timely appealed.
Analysis
Standard of Review
A district court has three options when a movant files a K.S.A. 60–1507 motion:
“(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.” Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
Our standard of review depends upon which of these options the district court chose. When the district court reviews the motion, files, and records, holds a preliminary hearing, and summarily denies a K.S.A. 60–1507 motion-as the district court did in the present case, we are in as good of a position as the district court to consider the merits. Accordingly, our review is unlimited. See Sola–Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).
In accordance with K.S.A. 60–1507(b), a movant must establish by a preponderance of the evidence that either: (1) “the judgment was rendered without jurisdiction”; (2) “the sentence imposed was not authorized by law or is otherwise open to collateral attack”; or (3) “there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” K.S.A. 60–1507(b) ; See Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 285). Moreover, a movant bears the burden to prove that his or her K.S.A. 60–1507 motion warrants an evidentiary hearing. To do so, a movant's contentions must be more than conclusory. Rather, a movant must state an evidentiary basis in support of the claims or the basis must be evident from the record. See Grossman v. State, 300 Kan. 1058, 1062, 337 P.3d 687 (2014). Once a movant satisfies this burden, a district court must “grant a hearing, unless the motion is ‘second’ or ‘successive’ and seeks similar relief.” 300 Kan. at 1062 (quoting Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 [2011] ).
Kidd's K.S.A. 60–1507 motion centers on three allegations of ineffective assistance of trial counsel. Both our federal and state Constitutions guarantee the right of a criminal defendant to the effective assistance of counsel at all critical stages of a criminal proceeding. See State v. Brown, 300 Kan. 565, 574–75, 331 P.3d 797 (2014). To establish ineffective assistance of counsel, a defendant must show (1) that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that counsel's 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. State v. Coones, 301 Kan. 64, 70, 339 P.3d 375 (2014).
Under the first prong, a defendant must show that counsel's representation fell below an objective standard of reasonableness. State v. Betancourt, 301 Kan. 282, 306, 342 P.3d 916 (2015). In doing so,
“ ‘[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation omitted.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation omitted.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation omitted.]' “ Coones, 301 Kan. at 70 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
See State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014).
To establish prejudice, a defendant must demonstrate ‘ “a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.’ “ Edgar v. State, 294 Kan. 828, 838, 283 P.3d 152 (2012) (quoting Bledsoe v. State, 283 Kan. 81, 90–91, 150 P.3d 868 [2007] ). In the context of a K.S.A. 60–1507 motion, we review ineffective assistance of counsel claims de novo. Robertson v. State, 288 Kan. 217, 227, 201 P.3d 691 (2009).
Generally, it is “ ‘within the province of a lawyer to decide what witnesses to call, whether and how to conduct cross-examination, and other strategic and tactical decisions.’ “ Sola–Morales, 300 Kan. at 887 (quoting Thompson v. State, 293 Kan. 704, 716, 270 P.3d 1089 [2011] ). Hence, a defendant bears the burden of showing that trial counsel's actions were not the product of trial counsel's strategy. 300 Kan. at 888. It is in light of these standards that we review this case.
Cross–Examination of Ladria Gulley
Kidd first contends on appeal that his trial counsel was ineffective because she did not impeach Ladria Gulley. This contention has taken several forms throughout this case. Originally, Kidd claimed in his K.S.A. 60–1507 motion that the prosecutor violated his constitutional rights by introducing testimony known to be perjured. Recognizing that the Kansas Supreme Court had already decided that issue, Kidd argued-through the attorney appointed to represent him on his K.S.A. 60–1507 motion-that “the Movant is contending that his [trial] counsel was ineffective for failing to properly cross-examine or impeach these witnesses that I mentioned in paragraph 5(a) under my ‘Prosecutorial misconduct’ section. (Emphasis added.)
The witnesses listed in paragraph 5(a) of Kidd's pretrial questionnaire were Ladria Gulley, Les Labroi, Keith Johnson, and Garry Miller. However, the district court determined that “the witness” Kidd referenced in his K.S.A. 60–1507 motion was actually Ladria Gulley. Moreover, Kidd's appellate counsel asserts in this appeal that his client “claimed that trial counsel was ineffective when she failed to impeach a witness, which was interpreted to be Ms. Gully [sic ].” Hence, it is apparent that Kidd is contending that Gulley's trial testimony was perjured.
A review of the record, however, indicates that Kidd's trial counsel thoroughly cross-examined Gulley. In particular, trial counsel questioned Gulley about prior inconsistent statements she had made to the victim's mother regarding the shooting, which Kidd focused on in his K.S.A. 60–1507 motion. As such, Kidd seems to argue that his trial counsel's performance was deficient because she did not argue this point more forcefully. But the record reflects that the jury was clearly apprised of the fact that Gulley had previously made inconsistent statements. See Coones, 301 Kan. at 77. Accordingly, we find no support in the record for Kidd's contention that his trial counsel ineffectively cross-examined Gulley.
Kidd also suggests that the State misrepresented the law, presumably when it argued during the preliminary hearing that because an appellate court may review a prosecutorial misconduct claim absent an objection, trial counsel was not ineffective for failing to object. Although the State set forth this argument during the preliminary hearing, the district court did not include such reasoning in its order. Rather, as previously discussed, the district court reviewed trial counsel's efforts to impeach Gulley and found as a matter of law that trial counsel was not ineffective in this regard. Likewise, we find that the district court made findings of fact and conclusions of law in its order denying movant's K.S.A. 60–1507 motion to sufficiently rule on this issue. See Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285).
We, therefore, find that trial counsel's performance was not constitutionally deficient in her cross-examination of Gulley. See Boldridge v. State, 289 Kan. 618, 639–40, 215 P.3d 585 (2009) (trial counsel's cross-examination was not constitutionally deficient where trial counsel pointed out inconsistent statements made by witness).
Procuring Expert Testimony
Next, Kidd contends that his trial counsel was ineffective because she failed to retain an expert to testify counter to the coroner's testimony regarding how Tynus Gulley was shot. At trial, Dr. Jaime Oeberst-the Chief Medical Examiner of the Forensic Science Center in Wichita—testified that she found 14 entrance wounds “predominantly to [Tynus'] chest area” and 1 exit wound during the autopsy. She also testified that she found 13 shotgun pellets lodged in Tynus' torso, which caused injuries to his heart, pulmonary artery, lungs, trachea, and shoulder blade.
When asked on cross-examination if she could discern the distance from which the shooter fired, the coroner candidly replied, “Not exactly. There are some rough estimates that forensic pathologists use, based on the inches of spread, but I can't give you an exact number.” She agreed with the prosecutor, however, it was possible that Tynus was standing, turned slightly toward the shooter between 10 to 20 feet to his right, and the shooter fired a blast from either the shooter's waist or chest. Moreover, photographs of Tynus' body were admitted into evidence that showed he had been shot in the chest.
Also on cross-examination, Dr. Oeberst was asked if she could tell which side Tynus was facing when he was shot, to which she responded:
“Weil, he's obviously facing frontward, because that's where all the entrances are going into his body. Determining position of the shooter and position of the victim, they correlate to one another, you know, based on my trajectory, so I can't-you know, unless you have one of them being fixed, you can't really tell what the other one's doing.”
To the extent that Kidd wished to have an expert contradict Dr. Oeberst's estimation of the shooter's distance, the district court found that there was no need for rebuttal testimony because the coroner did not provide an expert opinion on the shooter's distance from Tynus at the time he was shot. We agree with the district court for two reasons. First, trial counsel specifically elicited during cross-examination that Dr. Oeberst did not have an opinion regarding the shooter's distance and even pointed to two injuries Tynus suffered on the left side of his body, which tended to undermine the claim that the victim was shot from his right. Second, Kidd is unable to demonstrate prejudice because he has failed to establish what opinions an expert witness may have expressed that could have been presented at trial. See Alderson v.. State, No. 89,220, 2003 WL 22532936, at *3 (Kan.App.2003) (unpublished opinion) (defendant convicted of murder failed to demonstrate how an expert could have presented any meaningful testimony). We, therefore, find that trial counsel's representation of Kidd did not fall below an objective standard of reasonableness and that Kidd is unable to show prejudice.
Requesting a Self–Defense Instruction
Lastly, Kidd argues that his trial counsel was ineffective for failing to pursue a theory of self-defense. In Kansas, at the time the 2007 shooting occurred, self-defense was defined as follows:
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force.
“(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.” K.S.A. 21–3211.
K.S.A. 21–3211 set forth a two-part test. The first part required a subjective showing that the defendant sincerely and honestly believed that the use of deadly force in defense of self was necessary. The second part required an objective showing that a reasonable person in the defendant's circumstances would have perceived that the use of deadly force in defense of self was necessary. See State v. Salary, 301 Kan. 586, 593–94, 343 P.3d 1165 (2015).
Here, the record indicates that Kidd did not testify at trial. As such, Ladria Gulley was the only person who provided testimony as to the events leading up to the shooting. She testified that while Tynus and Kidd were playing video games, Kidd continually made “snide little remarks” to Tynus. According to Lardria, when Kidd mentioned that he wanted to kill Tynus' younger brother, Tynus got upset and demanded that Kidd leave and that she had to intervene when the two engaged in a brief physical altercation. Afterwards, Kidd ran from the house, and Tynus then ushered kids who were in the house into a backroom.
After a short time, Kidd returned to the house and fired a shot through the kitchen window. Once Tynus and Ladria ran outside onto the porch to see what was going on, Ladria saw Kidd shoot Tynus in the chest before running away. Hence, we find nothing in the record to even arguably suggest that Kidd was entitled to a self-defense instruction at trial. See State v. McCullough, 293 Kan. 970, 976–77, 270 P.3d 1142 (2012) (finding that defendant was not entitled to self-defense instruction where defendant and store clerk engaged in “mutual combat,” the defendant left the store, returned with a knife, and then killed the store clerk). Therefore, we conclude that trial counsel's representation of Kidd was not ineffective for failing to request a self-defense instruction.
Affirmed.