Opinion
No. 106,294.
2012-09-7
Shawn D. SMITH, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Tony Powell, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant, and Shawn D. Smith, appellant pro se. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Tony Powell, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant, and Shawn D. Smith, appellant pro se. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J. and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
While serving a 272–month prison sentence for aggravated kidnapping, Shawn D. Smith claimed in his motion for habeas corpus relief that his trial counsel's performance was so bad that he deserves a new trial. After the district court denied his motion, Smith now seeks our review, claiming his counsel failed to interview and present the testimony of three witnesses, failed to challenge the blood evidence entered against him, and failed to challenge the defective complaint filed against him. After reviewing the record on appeal we decline to overturn Smith's conviction. The testimony from the three witnesses would not have made a significant change in the outcome of this trial in light of the overwhelming evidence of Smith's guilt. Also, in light of Smith's concession at trial that he inflicted bodily harm on the victim, the failure of his trial counsel to attack the weight of the blood evidence is hardly prejudicial to his case. Finally, we do not agree with Smith's contention that he was prejudiced by language in the complaint that failed to specify when the bodily harm to the victim occurred when the evidence revealed that he burst into the victim's motel room, knocked her to the floor, kicked her in the face, and then dragged her across the parking lot by her hair. We affirm his conviction.
Smith kicked open the motel room door and confronted his victim.
A brief review of the facts is necessary to provide a context for framing the issues and making this decision. The jury convicted Smith of the aggravated kidnapping of Kimberly A. Huckey in 2006. According to the State, Huckey had checked into a motel in an attempt to hide from Smith. Smith, along with a man named Larry Williams, and a woman named Lisa Winters, went to the motel, where Smith kicked open the door to Huckey's room. Huckey fell to the ground and Smith kicked her in the face. Smith then pulled Huckey from the floor and shoved her out the door. Smith forced Huckey through the parking lot, and at one point, he was dragging Huckey by her hair across the pavement. Finally, Smith, Williams, and Winters pushed Huckey into a car and drove off. An eyewitness reported the situation to law enforcement officers, who happened to be at a nearby restaurant. The officers stopped the car Smith was driving and found Huckey, who was bleeding and shaking.
Smith appealed his conviction and sentence. See State v. Smith, No. 97,951, 2008 WL 4416029 (Kan.App.2008), rev. denied 288 Kan. 835 (2009) (unpublished opinion). On appeal, Smith challenged the sufficiency of the evidence to support the aggravated kidnapping conviction, argued the district court erred in refusing to instruct the jury on lesser included crimes, said the district court committed misconduct, claimed his right against self-incrimination had been violated, argued there was prosecutorial misconduct in opening statement, and claimed cumulative error denied him a fair trial. A panel of this court rejected each of Smith's arguments and affirmed his conviction.
We turn to the request for habeas corpus relief.
After his unsuccessful appeal, Smith filed a K.S.A. 60–1507 motion in the district court. In his motion, Smith claimed he had been deprived of the right to effective assistance of counsel. To support this claim, Smith first argued trial counsel failed to conduct an adequate pretrial investigation. In particular, Smith said he told trial counsel to interview certain persons, but trial counsel did not do so. Smith said a man named Haywood Earnest would have testified that he has AIDS—which would support Smith's theory that he confronted Huckey to inquire about her taking an AIDS test. Smith noted that his defense at trial was he did not take Huckey with the intent to cause bodily harm to her or to terrorize her, but that he only intended to confront Huckey about taking an AIDS test, as he believed Huckey contracted AIDS from Earnest and he contracted AIDS from Huckey.
Next, Smith said his codefendant, Williams, would have testified that Smith never kicked Huckey or told Williams to hand him a strap ( i.e., a gun), as Huckey claimed at trial. Smith noted that at trial, the State relied on evidence that Smith commanded Williams to hand him a strap to prove he intended to inflict bodily harm upon Huckey or to terrorize her.
And finally, Smith said Erica Graham would have testified that she took Huckey to make a written statement and get it notarized, and Huckey was not forced to write the statement. Smith said this would show that Huckey lied when she testified at her deposition that she was kidnapped and forced to write a statement indicating Smith did not kidnap and injure her.
For his next argument, Smith claimed his defense counsel should have filed a discovery motion, which would have revealed whether law enforcement took Smith's shirt and shoes into custody and whether blood testing was performed on the clothing. Smith explained that at trial, the State suggested that there was blood on his shoes and that this caused the jury to believe Smith kicked Huckey. Smith said it was not his blood on the shoes and that defense counsel should have elicited a blood test to prove so.
Smith went on to argue that the State's complaint in the case was fatally defective and the court therefore lacked jurisdiction to charge him in the first place. Under Kansas statutes, kidnapping is defined as the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person ... to inflict bodily injury or to terrorize the victim or another. K.S.A. 21–3420. Aggravated kidnapping is defined as kidnapping, as defined in K.S.A. 21–3420, where bodily harm is inflicted upon the person kidnapped. K.S.A. 21–3421. Smith argued that in its complaint, the State failed to indicate that the bodily harm must have been inflicted upon a kidnapped person, as required by the statute. According to Smith, under the State's complaint it was possible for the bodily harm to have occurred before the kidnapping, contrary to the language of the statute. Smith said appellate counsel was deficient for failing to raise this issue on direct appeal.
The district court heard arguments on Smith's K.S.A. 60–1507 motion, but denied the motion without taking any evidence on the matter. In doing so, the court simply adopted the State's response to Smith's motion.
In this appeal we will first review some fundamental points of law that guide our deliberations. Next we will look at each argument made by Smith, first concerning the three witnesses, then the blood evidence, and end with the language of the complaint. Our analysis leads us to the conclusion that Smith is not entitled to any relief from his conviction.
We list the appropriate standard of review and legal foundations .
A district court has three options when deciding a K.S.A. 60–1507 motion. First, the trial court may summarily deny the motion. Second, the trial court may determine a substantial issue or issues have been presented, requiring a full evidentiary hearing in the presence of the movant. Finally, the trial court may determine that the motion raises one or more potentially substantial issues of fact, supported by the files and records, and then hold a preliminary hearing. Bellamy v. State, 285 Kan. 346, 353, 172 P .3d 10 (2007). Regardless of the form of the proceeding, the goal of the district court is to determine whether (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. 285 Kan. 346, Syl. ¶ 2.
The form of the K.S.A. 60–1507 proceeding does dictate the standard of review applicable on appeal. If the district court disposed of the case summarily, the standard of review is de novo. If the district court appointed counsel and held a preliminary hearing, this court determines whether the district court's findings of fact are supported by substantial competent evidence and whether those findings are sufficient to support the court's conclusions of law—which are reviewed de novo. If the district court conducted a full evidentiary hearing, the appellate standard of review is the same as that applied when only a preliminary hearing is held. Wilkins v. State, 286 Kan. 971, Syl. ¶ 3, 190 P.3d 957 (2008).
Because the district court in this case dismissed Smith's motion after appointing counsel and holding a preliminary hearing, this court must determine whether the district court's findings of fact are supported by substantial competent evidence and whether those findings are sufficient to support the court's conclusions of law.
We also note our standard of review over ineffective assistance of counsel claims. A claim of ineffective assistance of counsel presents a mixed question of fact and law. This court reviews the district court's underlying factual findings for substantial competent evidence and its legal conclusions based on those facts de novo. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009). To support a claim of ineffective assistance of counsel, a claimant must prove that (1) counsel's performance was deficient and (2) counsel's deficient performance was prejudicial, thus depriving the defendant of a fair trial in his or her criminal proceeding. The benchmark for judging an ineffective assistance of counsel claim must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
The first step of the test for ineffective assistance of counsel requires a showing that counsel made errors so serious that his performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. State v. Mathis, 281 Kan. 99, 109, 130 P.3d 14 (2006). This step requires a showing that counsel's representation fell below an objective standard of reasonableness under the circumstances. Our scrutiny of counsel's performance must be highly deferential, and 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 conduct, and to evaluate the conduct from counsel's perspective at the time. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The second step of the test requires a showing that there is 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. Bledsoe, 283 Kan. at 90.
Counsel's failure to interview and obtain the testimony of three witnesses is not reversible conduct.
Smith first argues that the outcome of the trial may have been different had his trial counsel not failed to interview Earnest, Williams, and Graham. We will deal with Smith's contentions in that order. First, we look at Earnest.
Smith says his theory of defense was that he did not intend to kidnap Huckey, but only intended to contact her to discuss whether she had AIDS. According to Smith, Earnest's testimony would have supported Smith's claim that Earnest had AIDS (and, presumably, that he transmitted it to Huckey, who transmitted it to Smith). Smith says that other than his own testimony, there was no evidence to support his theory that Earnest had AIDS. Significantly, kidnapping is defined as the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person ... to inflict bodily injury or to terrorize the victim or another. K.S.A. 21–3420.
In rejecting Smith's claim on this point, the district court noted that at trial, Huckey testified Earnest was not present when she was attacked and indicated that Earnest told her he did not have AIDS. The court said Smith failed to show Earnest would have provided exculpatory evidence had he testified.
We take a somewhat different view from that of the district court on this point. Contrary to Smith's contention, even without Earnest's testimony the jury in this case was presented with ample evidence that supported Smith's theory that Earnest had AIDS. Smith even admits this fact in his brief, noting two other witnesses testified about Smith's concern about AIDS.
At trial, Huckey testified that prior to the aggravated kidnapping, she and Smith had cell phone conversations about the possibility of Earnest having AIDS. Huckey stated Smith was concerned about Earnest having AIDS. Smith himself testified that he went to the motel because he wanted to get Huckey to take an AIDS test. April Lynch, a case manager for AIDS patients, testified that Smith told her that someone he had been dating was sexually active with someone else whom he believed was HIV positive. Lynch testified that in the day or two before Smith was arrested in this case, she advised Smith to come in for an HIV test and to bring his girlfriend. Lisa Winters also testified that the talk was that Earnest was a carrier of AIDS and that he would spread it.
Because there was ample evidence presented to support Smith's theory about his intent in taking Huckey from the motel room, Smith has not shown that the outcome of his trial would have been different had Earnest testified at trial that he has AIDS. See Bledsoe, 283 Kan. at 90. We turn to the possible testimony of the other defendant, Williams.
Smith next claims Williams would have testified that he did not kick Huckey and did not make a reference to a firearm. Smith says these were two critical fact questions for the jury when determining whether Smith inflicted bodily harm upon Huckey or attempted to terrorize her.
In rejecting Smith's argument on this point, the district court said Williams had a Fifth Amendment right to not testify at Smith's trial (as he had pled guilty to aggravated battery and criminal restraint beforehand), so he was simply unavailable for trial. The court also observed that Walker testified that she kicked Huckey. The court said it was not logical to believe Williams would have testified as Smith theorized.
In our view, any potential testimony by Williams that Smith did not kick Huckey is inconsequential for one key reason. In his K.S.A. 60–1507 motion, Smith claimed the only element of the aggravated kidnapping conviction at issue was the element of intent. In making this claim, Smith admitted that the undisputed facts were that he went to the motel, confronted and yelled at Huckey, took Huckey by force, and bodily harm occurred during this process. At trial, Smith likewise admitted he inflicted bodily harm upon Huckey. Because Smith has admitted he inflicted bodily harm upon Huckey, any testimony by Williams that Smith did not kick Huckey is inconsequential. Thus, Smith cannot show trial counsel was ineffective for failing to subpoena Williams to testify on this point.
Smith's better argument is that Williams may have testified he did not make a reference to a firearm. Significantly, the State, in closing argument, argued that Smith's statement to Huckey that her life [was] over and his statement to Williams to go get [his] strap supported the element of intent to terrorize. Particularly focusing on the latter, the State said, What are the usual consequences of beating someone down and then telling someone that you are going to get a gun? The usual consequence of that is the person is terrorized. That's exactly what [Smith] intended.
Smith's argument on this point nevertheless fails for two reasons. First, the jury had ample evidence that Smith intended to terrorize Huckey. As the State noted in closing argument, Smith had kicked in Huckey's door, screamed bitch, where's my money, and told Huckey her life was over. Huckey was kicked in the face and dragged by her hair. Any testimony by Williams that Smith did not make a reference to a gun would have been relatively insignificant in light of all the other evidence indicating Smith intended to terrorize Huckey. Second, any testimony by Williams would have supported Smith's theory of defense and would likely have been viewed quite cautiously by a jury considering Williams acted alongside Smith during the aggravated kidnapping. Smith has not shown that trial counsel was ineffective for failing to subpoena Williams to testify that Smith did not order him to get his strap. We now turn to the testimony of Erica Graham.
Smith contends that Graham would have testified that she took Huckey to the location where she made a written statement that Smith did not kidnap or injure her, and she witnessed Huckey writing the statement. Smith says Graham could have impeached Huckey's deposition testimony that she was kidnapped and forced to write a statement exonerating Smith.
In rejecting Smith's argument about Graham, the district court noted that Huckey indeed testified at her deposition that a ‘guy’ had approached her and told her to write a statement exonerating Smith. But the court said Smith was not prejudiced by trial counsel's failure to refute the information at trial because the information was not introduced at trial. The court also opined that the idea Graham was somehow involved in the alleged incident defied belief—as Huckey claimed a guy approached her.
The problem with Smith's argument is that Graham's potential testimony is relatively insignificant in light of the record. Even if defense counsel had impeached Huckey's prior testimony and caused her to lose credibility, Smith has failed to show that doing so would have changed the outcome of the trial. As the district court noted, Huckey did not continue to claim at trial that she was forced to make the written statement. The evidence was not before the jury and seems fairly insignificant in light of the evidence against Smith as a whole.
Smith has failed to demonstrate trial counsel was deficient for failing to interview Earnest, Williams, and Graham, or that their testimony would have changed the outcome of his trial.
We examine the issue about the blood evidence.
Smith contends his trial counsel should have challenged the State's contention that blood evidence was found on his clothing and shoes. Smith says the evidence was relevant because at trial, a law enforcement officer testified he saw what he thought was blood on Smith's shoes—which seemed to corroborate the State's theory that Smith kicked Huckey in the face. Smith notes the State confronted Smith about the blood at trial and referred to it in closing argument.
At trial, no samples of actual blood evidence were introduced into the record. However, the record clearly refutes the State's claim made at Smith's K.S.A. 60–1507 hearing that it introduced no evidence that had anything to do with the presence of blood and Smith's clothing had no relevancy to the case.
To the contrary, during the State's cross-examination of Smith, the State asked Smith about the blood on [his] shoes. When Smith responded that there was no blood on his shoes, the State said, There wasn't blood on your shoelaces? The law enforcement officer that stopped Smith after the kidnapping had previously testified that he noticed a red dropping on Smith's shoelaces that he thought was possibly blood. And when discussing evidence of intent during closing argument, the State pointed out that officers saw what appeared to be blood on Smith's shoelaces.
The apparent observation of blood evidence on Smith's shoes was clearly relevant to the State's case. Defense counsel could have dispelled the notion that Smith kicked Huckey, therefore causing the blood, by demanding forensic testing of Smith's shoes. Nevertheless, as we pointed out previously, Smith concedes that the State proved that he inflicted bodily harm upon Huckey. Thus, as with the previous issue, defense counsel's failure to persuade the jury that it was not Huckey's blood on Smith's shoes is of no consequence. Smith has admitted that he inflicted bodily harm upon Huckey. We see no prejudice to Smith on this point.
The complaint was not defective.
In his K.S.A. 60–1507 motion, Smith argued that the State's complaint failed to require that he inflicted bodily harm upon a kidnapped person, as required by the aggravated kidnapping statute. But Smith's argument is unpersuasive because he cannot show he was prejudiced by the language of the complaint—as the facts establish that bodily harm was inflicted upon a kidnapped person, and Smith admits so.
In this appeal, Smith's attorney claims that in his K.S.A. 60–1507 motion, Smith averred that the bodily harm received by Ms. Huckey occurred prior to the taking or confining .... (Emphasis added.) Therefore, if the bodily harm to Huckey only occurred before the taking, then bodily harm was not inflicted upon a kidnapped person; thus, the jury wrongfully convicted Smith. But it appears that Smith's attorney's characterization of Smith's statement is simply inaccurate. In his K.S.A. 60–1507 motion, Smith generally explained his interpretation of the aggravated kidnapping statute when stating that [b]odily harm occurs during the taking. But when speaking about the facts of his particular case, Smith said that bodily harm only occurred during the taking. And in another part of his motion, Smith stated that only intent was at issue, noting the undisputed facts were that he went to the motel, confronted and yelled at Huckey, took Huckey by force, and that bodily harm occurred during this process. At trial, Smith plainly admitted that he dragged Huckey by the hair. This clearly occurred after he took Huckey from the motel room.
Where Smith admits to the infliction of bodily harm that occurred after the initial kidnapping, Smith cannot show he was prejudiced by his counsel's failure to challenge the language of the complaint for failure to specify that the bodily harm must be inflicted after the taking ( i.e., upon a kidnapped person).
Despite Smith's argument to the contrary, this is not a multiple acts case.
In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). In order to ensure jury unanimity as to the specific act for which the defendant is charged, the trial court must either require the State to elect the particular criminal act upon which it will rely for the conviction or instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt. State v. Voyles, 284 Kan. 239, Syl. ¶ 2, 160 P.3d 794 (2007).
Here, because Smith's act of kicking Huckey's face occurred before Huckey was kidnapped, this act could not have supported the aggravated kidnapping charge—as aggravated kidnapping occurs when bodily harm is inflicted upon a person that has been kidnapped. K.S .A. 21–3421. The only act of bodily harm that could have supported the aggravated kidnapping charge was Smith's act of dragging Huckey through the parking lot. In upholding the sufficiency of evidence to support the aggravated kidnapping conviction on direct appeal, this court said Smith dragged Huckey by her ponytail and arm from her motel room to the parking lot and that she sustained road rash as a result. Smith, 2008 WL 4416029, at *1.
Under these facts, there is no real possibility that any member of the jury would have believed that the kick to Huckey's face was the only evidence that satisfied the element of bodily harm to a kidnapped person.
Smith has not demonstrated that trial counsel was deficient or that any deficient performance on the part of trial counsel deprived Smith of a fair trial. Smith has not shown that there is a reasonable probability, based on the errors alleged above, that the outcome of his trial would have been different but for trial counsel's performance.
We affirm the district court's denial of habeas corpus relief.