Opinion
No. 106,324.
2012-09-7
Dale E. McCORMICK, Appellant, v. STATE of Kansas, Appellee.
Appeal from Douglas District Court; Michael J. Malone, Judge. Edward G. Collister, Jr., and Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Michael J. Malone, Judge.
Edward G. Collister, Jr., and Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dale E. McCormick appeals the district court's denial of his K.S.A. 60–1507 motion. In his underlying criminal case, a jury convicted McCormick of aggravated kidnapping, aggravated burglary, and aggravated intimidation of a witness or victim. The convictions were affirmed and a petition for review was denied in State v. McCormick, 37 Kan.App.2d 828, 159 P.3d 194,rev. denied 284 Kan. 949 (2007). Subsequently, McCormick filed aK.S.A. 60–1507 motion alleging that his appellate attorney was ineffective. Following an evidentiary hearing, the district court denied the motion. Based on our review of the record, we affirm.
Factual and Procedural Background
The facts underlying this case were recited in detail in McCormick's direct appeal. See McCormick, 37 Kan.App.2d at 831–36. Accordingly, we will not repeat them in this opinion. Instead, we will state the facts as necessary in addressing this issues presented in this appeal.
In his direct appeal, Jessica Kunen served as McCormick's counsel. In support of McCormick's position, Kunen submitted a 74–page brief to this court that challenged multiple aspects of his jury trial. In addition, Kunen filed a 11–page reply brief. A panel of experienced jurists addressed each of McCormick's arguments and affirmed his convictions on May 25, 2007. See 37 Kan.App.2d at 836–49. On July 25, 2007, Kunen filed a 15–page petition for review with the Kansas Supreme Court. McCormick's petition for review was denied on September 27, 2007. See 284 Kan. 949.
On July 28, 2008, McCormick filed a pro se motion pursuant to K.S .A. 60–1507 in which he alleged that his appellate counsel was ineffective. The district court appointed counsel to represent McCormick and an evidentiary hearing was held on June 12, 2009. In addition to other evidence presented at the hearing, the transcript of Jessica Kunen's deposition—taken on May 19, 2009—was admitted into evidence. Following the hearing, McCormick and the State submitted proposed findings of fact and conclusions of law. In addition, McCormick filed a reply to the State's proposed findings and conclusions.
The district court denied McCormick's K.S.A. 60–1507 motion in a 17–page memorandum decision entered on January 10, 2011. The district court discussed each of the nine issues raised by McCormick in its memorandum decision and order. McCormick subsequently filed a motion to alter or amend judgment, which the district court denied in a memorandum decision and order issued on June 6, 2011. Thereafter, McCormick timely filed a notice of appeal.
Analysis
On appeal, McCormick presents seven issues. Although we will discuss each of these issues below, we note at the outset that McCormick has framed the issues in the context of a claim of ineffective assistance of appellate counsel. To establish ineffective assistance of appellate counsel, a movant must show that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness and (2) movant was prejudiced to the extent there was a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful. State v. Smith, 278 Kan. 45, 51–52, 92 P.3d 1096 (2004); see Mattox v. State, 293 Kan. 723, 725–26, 267 P.3d 746 (2011).
Based on our review of the voluminous record, we find that McCormick has not shown that his appellate counsel fell below an objective standard of reasonableness, nor has he shown that his direct appeal would have been successful but for the alleged deficient performance by counsel. Importantly, “[i]n an appeal from a criminal conviction, appellate counsel should carefully consider the issues, and those that are weak or without merit, as well as those that could amount to nothing more than harmless error, should not be included as issues on appeal.” Baker v. State, 243 Kan. 1, Syl. ¶ 5, 755 P.2d 493 (1988). Likewise, we find that McCormick's appellate counsel appropriately considered and included merit-worthy issues in the brief she filed on direct appeal as well as in the petition for review.
Sufficiency of Evidence
McCormick first contends that the district court, in ruling on his K.S.A. 60–1507 motion, erred in determining that there was sufficient evidence to support his aggravated kidnapping and aggravated intimidation of witness or victim convictions. “Under Kansas law, where an appeal is taken from the sentence imposed and/or conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived .” State v. Neer, 247 Kan. 137, 140–41, 795 P.2d 362 (1990). McCormick seeks to overcome his failure to raise the issue of sufficiency of evidence on direct appeal by claiming ineffective assistance of appellate counsel.
In Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009), the Kansas Supreme Court found that ineffective assistance of counsel can qualify as an exceptional circumstance to excuse an earlier failure to bring an issue before the court. As indicated above, we do not find that McCormick has shown that his appellate counsel was ineffective. Moreover, even if we assume that appellate counsel was ineffective, we conclude that there was sufficient evidence presented at trial upon which a reasonable jury could have determined that McCormick was guilty of aggravated kidnapping and aggravated intimidation of a witness or victim beyond a reasonable doubt.
“When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). “A conviction may be sustained only upon evidence where every element of a crime is proven beyond a reasonable doubt.” State v. Moody, 35 Kan.App.2d 547, 551, 132 P.3d 985,rev. denied 282 Kan.794 (2006).
Evidence of Aggravated Kidnapping
McCormick first challenges the sufficiency of the evidence to support the bodily harm element required for aggravated kidnapping. As charged in the underlying criminal case, aggravated kidnapping is taking or confining a person by force, threat, or deception when bodily harm is inflicted on the victim. K.S.A. 21–3421. The district court concluded that the evidence supported a finding of bodily harm, which separates aggravated kidnapping from kidnapping. Specifically, the district court found:
“The victim testified McCormick grabbed her and covered her mouth when she saw McCormick had entered her residence. She testified she had trouble breathing because McCormick was covering her mouth with his gloved hands. She testified that McCormick grabbed her by her wrists and that he had her in a bear hug. She testified that once she stopped screaming, he removed his hands from her mouth only to place them over her mouth again when she again started to scream. The victim also testified that her lip was cut during the confrontation, and that her wrists and thighs were bruised. The evidence supported a finding of bodily harm which separates an aggravated kidnapping conviction from a kidnapping conviction.”
McCormick argues that the victim's injuries were trivial and under Kansas law “trivial” injuries do not constitute “bodily harm.” He argues there was no use of force in this case beyond that required to accomplish a “simple” kidnapping. As recognized by the district court, however, the Kansas Supreme Court has found that while “trivial” injuries are insufficient to constitute bodily harm, there is no requirement that injuries be “substantial.” See State v. Mason, 250 Kan. 393, 398, 827 P.2d 748 (1992). In Mason, evidence of bruises and scratches to the arms, a scratch on the ankle, an abrasion to the abdomen, and tender ribs was sufficient to prove that the victim suffered bodily harm. 250 Kan. at 398.
Here, the district court reasonably concluded that the type of injuries suffered by the victim in Mason were similar to the type of injuries suffered by the victim in this case. Although McCormick argues that Mason is distinguishable because it involved a sexual assault, the Mason opinion did not mention the nature of the crime in reviewing the sufficiency of the evidence of bodily harm. Moreover, in a case not involving sexual assault, this court found injuries similar to those suffered by the victim in Mason to be sufficient to prove a bodily injury. See State v. Bryant, 22 Kan.App.2d 732, 735, 922 P.2d 1118,rev. denied 260 Kan. 996 (1996). Likewise, bodily harm includes “unnecessary acts of violence committed upon a victim” and does not require permanent injury. 22 Kan.App.2d at 735; see PIK Crim.3d 56.25.
There was evidence presented at trial to show that McCormick injured the victim's mouth, bruised her wrists, and bruised her thighs. Although McCormick may believe that such injuries are trivial, it was reasonable for the jury to conclude that the injuries—as well as the unnecessary nature in which they were incurred—were sufficient to constitute bodily harm.
At trial, the victim testified regarding her injuries as follows:
“Q. Were you injured?
“A. Yes.
“Q. How?
“A, When we were struggling, he had his hand on my mouth. My lip was—it either was from being pressed against my lip or biting down on my lip when he was pushing, putting his hand over my mouth. So my lip was cut. My wrists were bruised.
“Q. One or both?
“A. Both. And I had bruises on my thighs.”
The victim further testified that McCormick completely overpowered her. The State also presented photos of the victim's injuries taken shortly after the events and one photo of the bruises on her legs taken the next day. Thus, viewing the evidence in the light most favorable to the State, we conclude that a rational factfinder could have found the defendant guilty of aggravated kidnapping beyond a reasonable doubt.
Evidence of Aggravated Intimidation of a Witness or Victim
McCormick also challenges the sufficiency of the evidence presented at trial to support his conviction for aggravated intimidation of a witness or victim. Specifically, McCormick argues that there was not sufficient evidence to prove that his actions were “accompanied by an expressed or implied threat of force or violence against” the victim as required by K.S.A. 21–3833(a)(1). We disagree.
A threat of force or violence is “ ‘a communicated intent to inflict physical or other harm on any person....’ “ State v. Phelps, 266 Kan. 185, 196, 967 P.2d 304 (1998). Here, there was evidence presented at trial that McCormick broke into the victim's house in the early morning hours. The noise awakened the victim, and she grabbed a phone next to her bed. As she reached the doorway of her bedroom, she saw McCormick dressed in dark clothing and wearing a ski mask. When she saw him, she started screaming and tried to call the police, but she could not get a dial tone. While she was still screaming, McCormick—who had lifted his mask—grabbed the victim and covered her mouth. This caused her to have difficulty breathing.
McCormick grabbed the victim's wrists and overpowered her. He then pushed her onto a bed. Because she continued to try to call for help, McCormick forcibly took the phone from the victim. He also straddled the victim and kept her pinned to the bed. McCormick finally took his hand off of her mouth when the victim agreed not to scream. The victim testified that McCormick told her that he was going to kill himself, and she was afraid that he was going to kill her first. Later, McCormick again covered the victim's mouth as she tried to break free.
Ultimately, McCormick allowed the victim to stand up, but he would not allow her to leave the bedroom. When the victim looked out of her bedroom window, McCormick told her, “What are you waiting for? They're not coming.” The victim assumed that McCormick meant the police. When the victim attempted to open the blinds, McCormick prevented her from doing so. Although McCormick allowed the victim to use the bathroom, he initially would not let her shut the door. When she exited the bathroom, McCormick was standing only a few feet from the unlocked bathroom door.
When asked how she finally got McCormick out of her house, the victim testified:
“A. He finally ... said if I would agree not to call the police, that he would leave me alone, that he would go away and never bother me.
....
“A. ... it's starting to get light out, and then he's going on like, ‘Please don't—if you don't call the police, I will leave you alone.’ And then he looks at me, ‘So what are you going to do?’
“Q. What did you tell him?
“A. That scared me, because I thought, okay, if I say I'm going to call the police, what's he going to do to me? I said, ‘I need to think about it.’
“Q. Why did you say that?
“A. So that he would ... leave and—I thought if I did say I was going to call the police, then he said he'd kill himself. If I'm the one that's going to be calling the police, would he kill me?”
Viewing the evidence in the light most favorable to the prosecution, we find that there was sufficient evidence upon which a reasonable jury could conclude beyond a reasonable doubt that McCormick's actions on the morning of February 16, 2003, were accompanied by an expressed or implied threat of force or violence against the victim.
Search of McCormick's Backpack
McCormick contends that the district court erred in determining that the inventory search of his backpack was legal. This issue, however, was raised in McCormick's direct appeal, and this court found that the inventory search was reasonable. McCormick, 37 Kan.App.2d at 840–41. As the district court correctly found in ruling on the K.S.A. 60–1507 motion, under the doctrine of res judicata, once an issue has been presented to the court and decided in a final judgment, the same issue may not be raised a second time. Neer, 247 Kan. at 141. As such, McCormick is not able to bring the same claim—which he lost on direct appeal—in an attempt to collaterally attack his conviction under K.S.A. 60–1507. See State v. Kelly, 291 Kan. 868, 874–75, 248 P.3d 1282 (2011).
Once again, McCormick attempts to have this court revisit its previous decision by arguing that his appellate counsel was ineffective for failing to raise the officers' investigative motives in McCormick's petition for review to the Kansas Supreme Court. But this argument was not properly preserved for appellate review. In his proposed findings of fact and conclusions of law in support of his K.S.A. 60–1507 motion, McCormick only raised the petition for review issue incidentally. Specifically, he stated that he had “demonstrated exceptional circumstances permitting a second appeal of this issue by demonstrating ineffective assistance of appellate counsel ... [in] her failure to raise this issue in her petition for review.”
As the district court found, Kunen argued to this court on direct appeal that the district court committed reversible error in failing to suppress the evidence taken from McCormick's backpack. Likewise, Kunen appropriately briefed the issue involving the officers' motives in searching the backpack, arguing: “Once property is seized, the police may not use an inventory search ‘as a subterfuge for criminal investigation’ “ and that an “ ‘individual police officer must not be allowed so much latitude that inventory searches are turned into a “purposeful and general means of discovering evidence of a crime.’ “ [Citation omitted.]” In rejecting these arguments, this court concluded on direct appeal:
“At the time of the defendant's arrest, the officers did not search the backpack but, in conformity with Lawrence police department policies, seized the backpack and took it with the defendant to the jail. Due to space limitations, the police then logged the defendant's excess personal items into the found property storage area in the law enforcement center. The search of the backpack was reasonable as an inventory search, and the district court properly refused to suppress the contents of the backpack as fruits of an illegal search.” 37 Kan.App.2d at 841.
Furthermore, McCormick fails to demonstrate that Kunen's performance on direct appeal was constitutionally deficient simply because she chose not to make this one of the issues she addressed in the petition for review to the Kansas Supreme Court. Failure of appellate counsel to raise an issue on direct appeal is not, per se, ineffective assistance of counsel. See Layman v. State, 280 Kan. 430, 439, 122 P.3d 326 (2005). We find the same to be true of a petition for review. As indicated above, it is appropriate for attorneys to make strategic decisions regarding the issues to be asserted in an appellate brief or in a petition for review, and a criminal defendant has no constitutional right to have appellate counsel raise every issue that the defendant requests. See Baker, 243 Kan. at 5–6.
In this case, Kunen testified that she evaluated the legal basis of this argument, evaluated the principal and recent cases regarding this issue, and concluded—as did this court—that the facts supported the State's claim that the search of the backpack was reasonable as an inventory search. She also testified that she thought there were other more important issues to raise in the petition for review. Hence, we conclude that it was within appellate counsel's wide deference to decide whether to include this issue in the petition for review. See Moncla v. State, 285 Kan. 826, 832, 176 P.3d 954 (2008).
Additionally, even if we assume that Kunen should have raised this issue in McCormick's petition for review, McCormick has not shown that he was prejudiced by its exclusion. As indicated above, the issue was presented and decided by this court on direct appeal. We find nothing in McCormick's brief to convince us that the previous decision of this court—that the search of the backpack was reasonable as an inventory search—was erroneous.
Search of McCormick's Residence
McCormick next contends that Kunen was ineffective in petitioning the Kansas Supreme Court for review regarding the issuance of a search warrant for his residence. On direct appeal, this court found that “assuming without deciding that the search of the defendant's residence was illegal because such was premised upon an invalid search warrant,” the evidence admitted as a result of the warrant was “ clearly harmless.” (Emphasis added.) McCormick, 37 Kan.App.2d at 841–42. Once again, we find that the district court was correct in concluding that the decision of this court on direct appeal constitutes res judicata. See Neer, 247 Kan. at 140–41.
Because Kunen did assert this issue in the petition for review filed with the Kansas Supreme Court, McCormick argues that she was ineffective in arguing the issue. Specifically, he argues that his appellate counsel was ineffective in failing to point out alleged factual errors in the petition for review and in failing to argue that this court should not have considered the harmless error issue sua sponte. In reviewing a claim of improper issue framing, this court has found that when an appellant “does not claim his appellate counsel failed to raise a particular issue on appeal, but rather he asserts that appellate counsel failed to properly frame an issue that was raised ... [the appellant] faces an even more difficult path to establish that his appellate counsel's performance was objectively unreasonable.” Brown v. State, No. 98,939, 2009 WL 112794, at *6 (Kan.App.2009) (unpublished opinion) rev. denied 289 Kan. 1277 (2009).
On direct appeal, in addressing McCormick's challenge to the evidence seized during the search of his residence, this court found:
“The defendant further challenges the use of evidence seized from the search of his residence or fruit of the search, claiming the search warrant was invalid. Assuming without deciding that the search of the defendant's residence was illegal because such was premised upon an invalid search warrant, the only objectionable evidence introduced at trial as a result of the search was four pictures depicting individuals engaged in sexual bondage activities and a few entries from the defendant's personal journal related to the victim. The admission of this evidence, even if wrongful, was clearly harmless.
‘ “ “Error in the admission or exclusion of evidence in violation of a constitutional or statutory right of a party is governed by the federal constitutional harmless error rule. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error is harmless. Before an appellate court may declare such an error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless.” [Citation omitted.]’ State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004).
“The defendant admitted he had entered the victim's residence early in the morning on February 16. He further admitted he had brought sex toys with the intention of using them with the victim. The issue before the jury was merely one of intent. The victim testified clearly about what occurred and specifically identified the defendant. The victim's account was corroborated by circumstantial evidence regarding the defendant's entry through the window.
“The defendant's journal entries obtained from the defendant's computer helped to establish the State's theory of criminal intent to the extent such evidence demonstrated the obsessive nature of the defendant's relationship to the victim. However, the prejudice caused by the admission of the journal entries was significantly minimized by the amount of other evidence related to the relationship between the defendant and the victim properly admitted.
“The State offered a videotape the defendant delivered to the victim in which the defendant recorded himself under his bed coverings addressing ‘pillow talk’ to the victim. This videotape was not seized as the result of the search of the defendant's residence. Similarly, the State offered a letter from the defendant to the victim which enclosed two leather straps. The letter indicated the use for the straps in the following manner:
“ “T will be the man now and guide us through this time. You be like a woman should be in certain emergencies and take orders from your man. Sweetie, I'm not kidding. Way, way too much time has gone by already. Today, Friday the 9th, is the last day we waste. Tomorrow's the day we start our lives together. It may or may not be forever. That is up to you. But we have love and we have endless passion and it is right now. Today is the last day we waste. Tomorrow, July 10th, our new lives start. Not sort of, not partway, not halfway, but 100 frappin [ sic ] percent.
....
‘ “ “Now as the man, I'm telling you that you as the woman have been bad. I've already told you that you owe me a debt. That is what the package is for. Open it now. They go on your wrists. Try them on. Have them on tomorrow night, Saturday night, at 11 p.m. Have on something simple along with them, like a bra or T-shirt. If you have plans that overlap 11 p.m., break them. Sweetie, I brought those for two reasons. One fun and one serious. One, your bottom owes me a debt, and those are to make sure that I get to pay it without you resisting too much. Yes, I am totally serious.
‘ “ “The second reason is much more profound. There is an absolute symbology to your acquiescence right now. By letting me be in charge and steer us through this turbulence and into tranquility, you will say to me that you know I love you with all of my heart.’ “
“Although the defendant claimed this letter reflected an inside joke the defendant shared with the victim, the jury heard that the victim called the police when she received this letter.
“The State properly introduced photocopied pages from the victim's journal upon which the defendant had written additional comments to the victim. The State properly admitted the sex toys discovered in the defendant's backpack. The prejudice to the defendant by the admission of the bondage photographs seized from the defendant's computer was limited to removing from the jurors' imaginations the intended use of the sex toys. The defendant testified he took the bondage toys to the victim's house on February 16 because she had expressed a desire to pay her ‘outstanding debts.’
“Based upon the defendant's own admissions and the amount of evidence properly introduced to demonstrate the defendant's intent, we firmly conclude the admission of the evidence obtained from the search of the defendant's residence and/or computer was constitutionally harmless, even if the search was illegal.” 37 Kan.App.2d at 841–43.
Kunen testified that she did challenge the Court of Appeals' harmlessness analysis based on an analysis of the facts:
“I had referenced the admission of the exhibits in my appellate opening brief. And I thought their analysis of the facts was way off base and that they didn't understand the defense's perspective in terms of theory of defense. So I needed to get that in front of the State Supreme Court. I did challenge the harmless error analysis on both the factual and legal basis.”
We find that this testimony is supported by the petition for review she submitted on behalf of McCormick.
In the petition for review, Kunen argued:
“The following contents from his computers, which included emails, correspondence, journals, and pornographic pictures were admitted at trial.... Much of this information documented Mr. McCormick's continuing interest in [the victim].
“Some of the evidence was pornographic and violent. Brown saw two images of females restrained and with a ball gag in their mouths. Neither of the females were [the victim].... Further, Brown came across a document entitled ‘Journal.’ In an entry dated October 28, 2002, Mr. McCormick wrote that he was attempting to forget about [the victim] and he was having difficulty getting over her.... The District Court allowed the admission of both journal and the sexually explicit pictures. Additional illegally seized email and correspondence were seized and admitted.”
Further, Kunen argued that the decision of this court that the admission of evidence was harmless error was “based on a misapplication of the harmless error standard and an unreasonable application of that standard to the facts,” and she stated the following relevant factual issues:
“The case was essentially a credibility battle. The admission of violent pornographic pictures involving ball gags in the mouths of restrained naked women, the defendant's journal which revealed the defendant's obsession with [the victim], and other emails and letters are so prejudicial that no jury could concentrate on defendant's theory of defense: that the encounter was consensual. The Court of Appeal's heavy reliance on Mr. McCormick's letter to the victim, and the videotape, could have been interpreted [ sic ] the jury as consented to communication between the defendant and his girlfriend. The inadmissible evidence is more violent, and the computer journal is an admission that McCormick knew [the victim] was no longer interested in him.”
Kunen clearly argued in the petition for review that McCormick was prejudiced by the evidence seized from his residence under the search warrant and argued that this court made factual errors in its decision. Kunen also explicitly argued in the petition for review that “the Court of Appeals refused to address the legality of the search.” Kunen focused on what she considered to be an erroneous use of a less stringent standard than beyond a reasonable doubt when this court analyzed the evidence on direct appeal. She also cited Arizona v. Fulminate, 499 U.S. 279, 295–302, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), for the following proposition: “Under harmless error analysis, ... the State has failed to meet its burden of establishing, beyond a reasonable doubt, that the admission of Fulminate's confession to Sarivola was harmless.” (Emphasis added.) Notwithstanding these arguments, the Kansas Supreme Court decided to deny McCormick's petition for review.
We, therefore, conclude that Kunen was not ineffective in framing or arguing the issues related to the residential search warrant in the petition for review.
Use of the Victim's Diary at Trial
McCormick next argues that he was denied his right to present a defense, his right to confrontation, and his right to fundamental fairness because he was not allowed to inspect the victim's personal diary or journal at trial. In an attempt to escape the res judicata effect of this court's decision on direct appeal, McCormick again argues that his appellate counsel was ineffective for failing to raise this issue.
Evidently, McCormick was hoping to glean information from the diary to assist in his defense that the victim was afraid of him prior to the incident that gave rise to the charges against him and, as such, was biased against him. Interestingly, McCormick represented to the district court at trial that he already knew the contents of the diary “through confidential investigative means,” so it is difficult to imagine he was prejudiced by not being allowed to look at the diary again during the trial.
Nevertheless, McCormick was permitted to examine the victim outside the presence of the jury regarding the contents of the diary. Although the district court concluded that the diary was not admissible, McCormick was allowed to vigorously cross-examine the victim about the diary and about her fear of him prior to him breaking into her home on the morning of February 16, 2003. In fact, the record is replete with evidence of the victim's prior fear of McCormick and her belief that he was stalking her prior to the incident that gave rise to this case.
Specifically, the victim testified on cross-examination as follows:
“Q. How long have you been reporting to the police that I was going to do those things to you?
“A. I was afraid—when I reported to the police, I was afraid you would kidnap me.
“Q. And rape you?
“A. I didn't know what you might do to me.
“Q. And murder you, too, right?
“A. I didn't know. I was afraid of you.
“Q. That's what you told the police in Topeka in 1999; that I was trying to kidnap and rape and murder you?
“A. I didn't say that you were trying to. I said I was afraid of what you would do.
“Q. So you were forming ideations in your mind about these things happening?
“[Prosecutor]: Object to the form of the question.
“[THE COURT]: It's argumentative. Sustained.
“Q. How long prior to the day in question had you been forming ideas in your mind about me coming into your house dressed all in black and you not being able to escape? How long had you had ideas like that in your mind prior to the date in question?
“A. I was afraid you might do something, but nothing that—I didn't know—how would I know specifically?
“Q. Well, that's my question, ma‘am.
“A. I don't understand.
“Q. My question is: How long before the date in question had you been forming ideas in your mind about me coming into your house dressed all in black and capturing you, or whatever it is
“A. Well, never
“Q. Strike that. End it there.
“A. Never.
“Q. You never wrote down that you were fantasizing
“A. No.
“Q.—or thinking about things like that?
“A. No.”
McCormick asked for assistance from his standby counsel on how to proceed with the witness. Understandably, standby counsel was concerned that the contents of the diary would prejudice McCormick's defense more than it would help his defense. It appears from the record that McCormick abandoned his effort to get the contents of the diary into evidence and moved on with his cross-examination of the witness. Moreover, McCormick did not argue to the trial court either during the trial or in his motion for new trial that his constitutional rights were violated by the district court's refusal to admit the diary.
For the first time, McCormick raised this issue in his K.S.A. 60–1507 motion. But constitutional grounds for reversal asserted for the first time on appeal are not properly before an appellate court for review. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010); also Brown, 2009 WL 112794, at *6. Furthermore, even if this issue is properly before this court, we find that McCormick's appellate counsel was not ineffective because “[we] give wide deference to counsel in deciding what issues should be asserted on appeal.” Moncla, 285 Kan. at 832; see also Baker v. State, 243 Kan. 1, Syl. ¶ 5, 755 P.2d 493 (1988) (“Likewise, the fact that the defendant requests such an issue or issues to be raised does not require appellate counsel to include them.”). McCormick argues that Kunen's investigation of this issue was insufficient and that she failed to review applicable case law. Kunen, however, testified that she was familiar with McCormick's argument regarding the victim's diary, that she investigated the factual basis of his argument, that she thoroughly reviewed the record on appeal, and that she concluded that McCormick's constitutional rights were not violated because he was allowed to conduct a comprehensive cross-examination without the diary.
Further, even assuming without deciding that appellate counsel was ineffective for failing to raise these issues on appeal, we do not find that McCormick has shown that he was prejudiced. See Edgar v. State, No. 100,477, 2012 WL 3056015, 294 Kan. ––––, Syl. ¶ 4, ––– P.3d –––– (filed July 27, 2012) (“A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of alleged deficiencies.”). We note that the entry from the victim's diary that McCormick relies on as the basis for his argument states, in part:
“Please make him pay. Make him pay dearly. Make him suffer, suffer, suffer. Make him want to kill himself. That is the only way I will ever have peace. If he is dead.
“... Feel as though I'm always being watched and analyzed by that sick bastard. Having nightmares too at least once a week-probably more. That he's in my house, or will be coming to my house & I can't lock the doors or the phone won't work or I can't get out the house etc. In all of the dreams I am powerless. And that's how I feel-like he can do whatever he wants & I can't stop him.”
As such, it appears standby counsel was correct in the opinion that the admission of the victim's diary entries would be “extremely prejudicial” to McCormick's defense. As indicated above, McCormick was allowed to attempt to impeach the victim's credibility on cross-examination by asking questions relating to her prior fear and her alleged fantasies. As the district court recognized, “[T]here was ample evidence to show that there was certainly a strong bias against Mr. McCormick by [the victim].” Thus, in the words of the district court, “McCormick showed this bias, but the jury believed [the victim's] testimony anyway.”
Finally, we note that the evidence McCormick wanted to admit was not exculpatory. Instead, it went to the victim's general credibility and to Mr. McCormick's position that “the victim's tale of a kidnapping was borne of ... fantasy, contrary to the reality of the situation.” Although McCormick argues this situation is analogous to Lewis v. Wilkinson, 307 F.3d 413, 420 (6th Cir.2002), we do not agree.
In contrast to Wilkinson—where the Sixth Circuit Court of Appeals found that diary entries made after an alleged rape suggested that the sexual encounter was consensual—McCormick sought to use the contents of the victim's diary to show her fear or fantasy regarding what he might do to her in the future. Further, as recognized by the Wilkinson court, it is appropriate to ask “ ‘whether the jury had enough information, despite the limits placed on otherwise permitted cross-examination, to assess the defense theory of ... improper motive.’ “ 307 F.3d at 421. Here, we find that the jury had sufficient information to assess McCormick's defense. Thus, the probative value of introducing the actual statements from the diary was outweighed by the cumulative nature of such evidence.
We, therefore, conclude that McCormick's appellate counsel was not ineffective for failing to raise this issue on direct appeal.
Pervasive Government Misconduct
McCormick asserts several instances of what he believes—when viewed collectively—to be pervasive government misconduct, some of which have not been properly raised and argued to this court. Once again, McCormick attempts to use his K.S.A. 60–1507 motion as a substitute for a second appeal. Specifically, he argues that appellate counsel was ineffective in arguing these issues on direct appeal. But with the exception of one claim involving alleged lost evidence under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 353, 106 L.Ed.2d 281 (1988), McCormick makes no argument alleging error in the district's court's K.S.A. 60–1507 decision addressing these issues. Regarding McCormick's Youngblood claim, we find that McCormick has failed to show that the district court arbitrarily disregarded undisputed evidence.
We find that the district court thoroughly addressed McCormick's arguments regarding the issue of pervasive government misconduct in its memorandum decision entered on January 10, 2011, and in its memorandum decision entered on June 6, 2011. We further find that the district court adequately explained the reasons for its ruling on this issue and committed no error in its analysis of the law or the facts. Accordingly, we affirm the district court's ruling on this issue pursuant to Supreme Court Rule 7.042(e) (2011 Kan. Ct. R. Annot. 60).
Disinterested Prosecutor
McCormick contends that he was denied the right to a disinterested prosecutor in the underlying criminal case. See State v. Cope, 30 Kan.App.2d 893, 896, 50 P.3d 513,rev. denied 274 Kan. 1115 (2002) (“[A] conflict of interest warrants recusal only if the conflict is so grave as to render it unlikely that the defendant will receive fair treatment during all portions of the criminal proceedings.”). Again, we find that the district court adequately explained the reasons for its ruling on this issue and committed no error in its analysis of the law or the facts. Accordingly, we affirm the district court's ruling on this issue pursuant to Supreme Court Rule 7.042(e).
Cumulative Error
McCormick's final argument on appeal is that his appellate counsel's failures in raising multiple trial errors collectively deprived him of his right to a fair trial. In considering allegations of cumulative error, “[t]he test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. Fewell, 286 Kan. 370, 393, 184 P.3d 903 (2008). Upon consideration of this argument, the district court determined that “claimed trial errors have not been proven or were inconsequential to the outcome of the case.” Based on our review of the record, we agree with the district court that the alleged errors, viewed collectively, did not deny McCormick of a fair trial.
Affirmed.