Opinion
No. 107,993.
2013-08-30
Michael L. GAINES, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystele M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystele M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael L. Gaines appeals the district court's decision to deny his K.S.A. 60–1507 motion without an evidentiary hearing. For the reasons stated below, we affirm.
Facts
In June 2008, Gaines was convicted by a jury of two counts of battery of a law enforcement officer but acquitted on a single count of criminal threat. On July 17, 2008, the district court imposed the aggravated sentence provided for in the Kansas Sentencing Guidelines Act for each count and ordered the sentences to run consecutively, thereby sentencing him to 162 months in prison. Gaines directly appealed his convictions, which were affirmed on August 6, 2010, in State v. Gaines, No. 101,461, 2010 WL 3211672, at *4 (Kan.App.) (unpublished opinion), rev. denied 291 Kan. 914 (2010). The Court of Appeals summarized the facts of the case in its opinion:
“At Gaine[s'] jury trial, uncontested evidence established that Sedgwick County Detention Facility [D]eputies Robyn Diericks and Michael Eaglin were inside the county jail's medical clinic just prior to the incident that led to the charges against Gaines. Gaines and other inmates were in fine waiting to have their blood glucose levels checked when Gaines started to argue with another inmate.
“There was conflicting evidence as to what took place next. The State presented testimony that upon hearing the argument, Eaglin stepped outside the clinic to see what was happening and saw that Gaines had his fist on top of the other inmate's forehead. Eaglin approached Gaines and told him to turn around and ‘cuff up.’ Gaines did not comply, so Eaglin grabbed Gaines' arm, pushed him against the wall, and again told him to turn cuff up. Gaines broke free of Eaglin's grip and swung his arms at Eaglin in an attempt to hit him. Diericks came to Eaglin's assistance, but Gaines kept resisting so Diericks knocked him to the ground by taking his legs out from under him. Gaines continued to struggle with Eaglin and Diericks despite their commands to stop. During the struggle, Gaines said, ‘[M]other fucker, I'm going to kill you and your family when I[get] out of here.’ Deputy Leonel Verduzco came to assist Eaglin and Diericks, and the three deputies finally gained control of Gaines, put handcuffs on him, and stood him on his feet. Gaines then spit blood and saliva at Eaglin and Verduzco, hitting them in their faces.
“At a jury trial, Gaines testified and presented witnesses who disputed the State's account of the incident. Gaines stated he was waiting outside of the medical clinic when another inmate approached him in an aggressive fashion. Gaines stuck out his arm to protect himself. Eaglin then came out of the medical clinic and launched an unprovoked attack on Gaines, pushing him into the wall and punching him in the back of the head. Gaines denied struggling with or spitting on the deputies. “2010 WL 3211672, at *1.
On August 19, 2011, Gaines filed a motion pursuant to K.S.A. 60–1507, raising the following claims: (1) prosecutorial misconduct for withholding exculpatory evidence; (2) ineffective assistance of trial counsel for failing to get a ruling on a motion in limine, object to evidence of Gaines' medical history, prepare and investigate witnesses for trial, object to his inmate witnesses testifying in jail clothing, object during voir dire, and strike from the jury a community corrections officer; (3) ineffective assistance of appellate counsel for referencing a YouTube video of Gaines' comments to the judge at sentencing and failing to raise the issue of vindictive sentencing; (4) structural error for Gaines' not being present at a hearing on a motion to quash; and (5) illegal sentence.
After a nonevidentiary hearing on the K.S.A. 60–1507 motion, the district court held that the motions, files, and records conclusively showed that Gaines was not entitled to an evidentiary hearing. The district court found Gaines' assertions of judicial and prosecutorial misconduct could not provide him relief because they were trial error allegations. It also generally held that Gaines' allegations of ineffective assistance of counsel were conclusory and not sufficient for relief because he had not provided an evidentiary basis to support them. The district court finally found that Gaines was present at the hearing on the motion to quash and, even if he was not, the hearing did not require his presence.
Analysis
Gaines limits the scope of his appeal to that part of the district court's decision denying his ineffective assistance of counsel claims. With regard to his ineffective assistance of appellate counsel claims, Gaines argues he is entitled to an evidentiary hearing because he provided the court with sufficient facts to establish that his appellate counsel was ineffective for referencing a YouTube video of Gaines' sentencing in his appellate brief and for failing to raise the issue of vindictive sentencing on direct appeal. With regard to his ineffective assistance of trial counsel claims, Gaines asserts that he is entitled to an evidentiary hearing because he provided the court with sufficient facts to establish that his trial counsel was ineffective for: (a) failing to get a ruling on a pending motion in limine to exclude evidence of his medical history and offensive comments and subsequently failing to object to that evidence when it was introduced at trial; (b) failing to prepare two inmate witnesses for trial and failing to object to their appearance at trial in jail attire; (c) failing to investigate potential witnesses; (d) failing to object to the State striking minorities from the panel during voir dire; and (e) failing to strike a community corrections officer from the jury.
When the district court denies relief under K.S.A. 60–1507 based solely upon legal argument at a nonevidentiary hearing and its review of the files and records of the case, as happened here, an appellate court is in as good a position as the district court to consider the merits. Thus, we will review the district court's ultimate conclusion of law in this case de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008) (citing Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 [2007] ).
A movant is not entitled to an evidentiary hearing on his or her K.S.A. 60–1507 motion if 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) (2012 Kan. Ct. R. Annot. 274). The movant bears the burden to allege facts sufficient to warrant a hearing on the motion. To meet that burden, the movant “ ‘must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ “ Trotter v. State, 288 Kan. 112, 131–32, 200 P.3d 1236 (2009). However, it is error to deny a K.S.A. 60–1507 motion without a hearing where the motion alleges facts that do not appear in the original record that, if true, would entitle the movant to relief and the motion identifies readily available witnesses whose testimony would support such facts or other sources of evidence. Swenson v. State, 284 Kan. 931, 939, 169 P.3d 298 (2007).
To demonstrate constitutionally ineffective assistance of counsel, Gaines must show that his trial or appellate counsel's performance fell below an objective standard of reasonableness and that he suffered material legal prejudice as a result, meaning there probably would have been a different outcome. See Strickland v. Washington, 466 U.S. 668, 687–92, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984); Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance); accord Haddock v. State, 282 Kan. 475, 511–13, 146 P.3d 187 (2006) (citing Chamberlain; quoting State v. Hedges, 269 Kan. 895, 913, 8 P.3d 1259 [2000] ). As both the United States Supreme Court and the Kansas Supreme Court have noted, review of the representation should be deferential and hindsight criticism tempered lest the evaluation of a lawyer's performance be unduly colored by lack of success notwithstanding demonstrable competence. Strickland, 466 U.S. at 689–90;Holmes v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should counsel's representation be considered substandard when he or she investigates the client's circumstances and then makes a deliberate strategic choice among multiple options. Strickland, 466 U.S. at 690–91.
1. Ineffective assistance of appellate counsel
a. Appellate counsel's reference to the YouTube video in the brief on direct appeal
The “Statement of the Fact” section of the brief filed by appellate counsel in Gaines' direct appeal states: “At sentencing (a YouTube video of the sentencing can be seen at http://www.youtube .com/watch?v=keygM6u5v0ofeature=fvw), the district court sentenced Mr. Gaines to 162 months.” Although the video apparently was not part of the appellate record, the court's later opinion reflects that the members of panel assigned to his case did watch the video referenced by appellate counsel in Gaines' brief:
“We digress for a moment to note that appellate counsel in his brief mentions a video appearing on the YouTube website that is not part of the record. We are at a loss as to why counsel has mentioned it since it has no relevance whatsoever to the issues on appeal and it portrays Gaines in an extremely negative light, swearing and cussing at a judge in court.” Gaines, 2010 WL 3211672, at *2.
Gaines argues he is entitled to an evidentiary hearing on his ineffective assistance of counsel claim because appellate counsel's performance in referencing the website address for the YouTube video—a video that was not otherwise part of the appellate record—falls below an objective standard of reasonableness. Gaines further argues that he alleged sufficient facts to prove he suffered material legal prejudice as a result of counsel's deficient performance: (1) the appellate court watched the YouTube video that was not a part of the record, and (2) the appellate court queried as to why appellate counsel would have included a reference to the video in Gaines' appellate brief given it portrays Gaines in such a negative light.
But Gaines must allege facts that, if true, would entitle him to relief. Even if, as Gaines alleges, the appellate court on direct appeal watched the YouTube video that was not a part of the record and the appellate court queried as to why appellate counsel would have included a reference to the video in Gaines' appellate brief given it portrays Gaines in such a negative light, these facts are insufficient to establish he suffered material legal prejudice, meaning there probably would have been a different outcome in his direct appeal. See Strickland, 466 U.S. at 687–88;Chamberlain, 236 Kan. 650, Syl. ¶¶ 3, 4.
First, the appellate court expressly stated in its opinion that the video “has no relevance whatsoever to the issues on appeal.” 2010 WL 3211672, at *2. Given the appellate court expressly deemed the video irrelevant to the issues presented on appeal, there simply is no evidentiary support in the record for Gaines' claim he has suffered material legal prejudice (that there probably would have been a different outcome in his direct appeal) as a result of appellate counsel's deficient performance. Second, evidence of Gaines' “swearing and cussing” at the judge at the sentencing hearing was already in the record on direct appeal through the sentencing hearing transcript. See Gaines, 2010 WL 3211672, at *2. The district court correctly concluded under K.S.A. 60–1507(b) that the motions, files, and records conclusively showed Gaines was not entitled to relief. b. Appellate counsel's failure to raise the issue of vindictive sentencing in the direct appeal
Gaines asserts he is entitled to an evidentiary hearing because he alleged sufficient facts to prove that appellate counsel was ineffective in failing to raise the issue of vindictive sentencing as an issue on appeal. Although Gaines claims in his brief that he raised this issue below, he actually did not. We note that the section of his K.S.A. 60–1507 motion to which he cites does discuss vindictive sentencing, but it does not do so in the context of ineffective assistance of appellate counsel's failure to raise the issue in his direct appeal.
Issues not raised before the district court cannot be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009). There are several exceptions to this general rule, including the following: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; and (3) the judgment of the district court may be upheld on appeal despite its reliance on the wrong ground or assigned a wrong reason for its decision. In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied555 U.S. 1178 (2009). Given Gaines believed he appropriately raised the issue below, he has not argued in favor of applying any of the above exceptions. Given this unique situation, we will proceed to consider the issue presented on the merits.
Gaines received the presumptive aggravated sentence provided in the Kansas Sentencing Guidelines Act for each count of battery of a law enforcement officer, to run consecutive to each other for a total of 162 months in prison. See K.S.A. 21–4704; K.S.A. 21–4720. Gaines' appellate counsel told him in a letter: “I also believe you may have a claim of vindictive sentencing by Judge Pilshaw.... [H]owever, I cannot raise this on your direct appeal. She gave you a presumptive sentence and those are not appealable.” Nonetheless, Gaines now claims his appellate counsel could have appealed this sentence by claiming vindictive sentencing. He says it is evident from the district court's statements at the sentencing hearing that the judge increased his sentence because of his behavior and attitude toward her in the courtroom. As evidence that the judge sentenced him vindictively, he first points to her statement at the sentencing hearing that she could change her mind if Gaines wanted. Gaines also notes the reasons given by the judge for the sentence imposed:
“Based on your obvious contempt for those in authority, for those who are in a position to discipline you, and things like that, including the court guards, including me, I'm including the way you have behaved in my courtroom, I believe that there is a great reason for me to run these counts consecutive to each other.”
Under K.S.A. 21–4721(c)(1), the appellate court shall not review any sentence that is within the presumptive sentence for the crime. However, an appellate court may disturb a criminal sentence that is within statutory limits upon a showing of abuse of discretion or vindictiveness on the part of the sentencing court. State v. Merrills, 37 Kan.App.2d 81, 84, 149 P.3d 869,rev. denied 284 Kan. 949 (2007). There is a presumption of vindictiveness where resentencing resulted in seemingly unjustified enhancement of a sentence, but where this presumption does not apply, the defendant must affirmatively prove actual vindictiveness in order to prevail. 37 Kan.App.2d at 85.
Gaines cites to the Merrills case to support his claim of vindictive sentencing. However, the Merrills case and the vindictive sentencing cases cited therein are distinguishable from Gaines' situation because they involved claims of vindictive resentencing upon remand. While this court could probably extend the vindictive sentencing rule from these cases to a nonremand situation in which a sentencing judge initially imposes a sentence and then increases it following the defendant's bad behavior during sentencing, that did not happen in this case. Here, the sentencing judge imposed Gaines' consecutive sentences only once and never increased it.
Notably, and contrary to Gaines' position, the court in Merrills found the sentencing judge's conclusion should not be disturbed on appeal because imposition of consecutive sentences was commensurate with the defendant's crimes and well within the district court's province. Like in Merrills, the sentencing judge here stated her reason for imposing consecutive sentences, which was Gaines' “obvious contempt for those in authority.” Given that Gaines was convicted of battery of a law enforcement officer, this reasoning was appropriate for the crime and within the district court's province.
In sum, Gaines has alleged no facts that, if true, would prove vindictiveness by the sentencing judge. See Merrills, 37 Kan.App.2d at 85. Accordingly, Gaines' appellate counsel had no grounds to appeal the presumptive sentence and his performance did not fall below an objective standard of reasonableness by failing to do so. Pursuant to K.S.A. 60–1507(b), the motions, files, and records conclusively show Gaines is not entitled to relief.
2. Ineffective assistance of trial counsel
a. Trial counsel's failure to secure a ruling from the district court on the pending motion in limine to exclude evidence of Gaines' medical condition and offensive comments made by Gaines and trial counsel's failure to object to such evidence when subsequently introduced at trial
On February 11, 2008, Gaines' prior trial counsel filed a motion in limine to exclude as prejudicial evidence that Gaines was HIV positive and Gaines had made potentially derogatory statements regarding “ ‘white people’ “ or “ ‘9–11’ “ during the incident with the detention deputies. After current trial counsel was appointed to represent Gaines, a hearing on the motion in limine was set for May 2, 2008. On May 2, the motion in limine hearing was continued to May 9, 2008, but there is no evidence in the record that the May 9 hearing took place or that the district court ruled on the motion.
During trial, the State presented evidence of racial insults made by Gaines to the detention deputies, such as calling them “honky mother flickers.” State witnesses also testified that Gaines told the deputies they should have died on September 11, 2001.
During opening statements on the first day of trial, the prosecutor told the jury that Gaines was HIV positive. During trial, the prosecutor asked the State's witnesses if they knew Games' medical history or if they knew he was HIV positive. The prosecutor followed up by asking these witnesses about any treatment for HIV they sought as a result of the bodily fluid that Gaines spit in their faces. The prosecutor also asked Gaines himself if he was HIV positive. In closing argument, after the court had instructed the jury that to establish battery the State had to prove Gaines intentionally caused physical contact with another person in a rude, insulting, or angry manner, the prosecutor suggested that Gaines' act of spitting on the deputies was even more rude and insulting because Gaines was HIV positive.
In his K.S.A. 60–1507 motion for relief, Gaines asserts trial counsel was ineffective (1) in failing to secure a ruling from the district court on the pending motion in limine to exclude evidence that he was HIV positive and the evidence of his offensive comments and (2) in failing to object to such evidence when it was subsequently introduced at trial. Assuming, without deciding, for purposes of our analysis that Gaines' trial counsel was deficient in failing to secure a ruling on the motion in limine and to lodge an objection at trial, we find Gaines has failed to allege any facts which, if true, would show there probably would have been a different outcome at trial in the absence of counsel's deficient performance. See Strickland, 466 U.S. at 687–92, 694;Chamberlain, 236 Kan. 650, Syl. ¶¶ 3, 4. To that end, the jury acquitted Gaines on one of the three crimes charged related to the incident, a fact which strongly suggests that the jury did not place undue emphasis on Gaines' offensive comments or the fact that Gaines was HIV positive.
Our Supreme Court came to a similar conclusion in State v. Holman, 295 Kan. 116, 128–29, 284 P.3d 251 (2012), where the jury acquitted the defendant of rape and aggravated indecent liberties with a child. The Holman court found that these acquittals showed that “the jury did not exaggerate the importance of the evidence of the defendant's prior crimes admitted contrary to K.S.A. 60–455. 295 Kan. at 129. It further noted: “If the jury had considered the K.S.A. 60–455 evidence as proof of Holman's propensity to engage in illicit sexual behavior, one would expect that Holman would have been convicted of all the crimes charged.” 295 Kan. at 129. Here, the jury acquitted Gaines of the criminal threat charge. Thus, like the jury in Holman, the jury did not place undue emphasis on the allegedly prejudicial evidence of Gaines being HIV positive or his racial statements. Furthermore, the district court instructed the jury: “You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.” The jury is presumed to have followed the instructions given. State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012). In sum, Gaines has not demonstrated a reasonable probability that, but for counsel's allegedly deficient performance, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 687–92, 694;Chamberlain, 236 Kan. 650, Syl. ¶¶ 3, 4. b. Trial counsel's failure to prepare witnesses and object to jail attire
Gaines claims an evidentiary hearing is necessary on this particular issue because there are no facts in the record regarding what actions trial counsel took in preparing witnesses Juan Wheeler and Brent Garcia for trial, apart from preparing their transport orders. In his brief on appeal, however, Gaines does not present any evidence that his trial counsel failed to prepare Wheeler and Garcia for trial; he only speculates that the lack of evidence of preparation suggests there was no preparation and therefore trial counsel was deficient. These assertions are conclusory and do not satisfy Gaines' burden to set forth an evidentiary basis demonstrating that he is entitled to relief. See Swenson, 284 Kan. at 938–39.
Gaines also asserts his trial counsel was ineffective in failing to object to Wheeler and Garcia testifying in handcuffs, restraints, leg irons, and jail jumpsuits. Gaines is not entitled to an evidentiary hearing on this issue, however, because he again has failed to satisfy his burden to allege facts that, if true, would demonstrate that his trial counsel's performance was deficient or prejudicial. See Swenson, 284 Kan. at 938–39. Given the crime with which Gaines was charged occurred inside the jail, the jury already knew that the witnesses who testified were inmates and Gaines has failed to present any facts to show why their appearance in jail clothes and restraints would have any other impact on the credibility of these witnesses. c. Trial counsel's failure to investigate witnesses
“ ‘Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any effectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.’ “ LaPointe v. State, 42 Kan.App.2d 522, 541–42, 214 P.3d 684 (2009) (quoting Hedges, 269 Kan. at 914),rev. denied 290 Kan. 1094 (2010). With that said, defense counsel cannot make a strategic decision against pursuing a line of investigation when he or she has not yet obtained facts upon which that decision could be made. Mullins v. State, 30 Kan.App.2d 711, 716–17, 46 P.3d 1222,rev. denied 274 Kan. 1113 (2002).
Gaines claims that trial counsel should have interviewed 10 people in the vicinity of the incident at the jail who could have testified on his behalf. In support of his claim, Gaines argues there are no facts in the record regarding what investigation trial counsel pursued related to these potential witnesses, with the exception of an order authorizing a private investigator to investigate for 30 hours and an order allowing the private investigator access at the jail.
Gaines is not entitled to an evidentiary hearing because he again has failed to satisfy his burden to allege facts that, if true, would demonstrate that his trial counsel's performance was deficient or prejudicial. See Swenson, 284 Kan. at 938–39. Specifically, Gaines does not identify or suggest what information the 10 individuals he identifies possessed that was different from the trial testimony presented by other defense eyewitnesses. Considering both Wheeler and Garcia testified they did not see Gaines spit on the deputies, Gaines cannot show he was prejudiced by the lack of witnesses to testify the crime did not occur. In addition, it is not ineffective assistance of counsel to fail to call a witness whose testimony would have been cumulative. State v. Lewis, 33 Kan.App.2d 634, 653, 111 P.3d 636,rev. denied 277 Kan. 924 (2003). d. Trial counsel's failure to lodge a Batson objection during voir dire
Gaines asserts trial counsel was ineffective in failing to lodge an objection based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when the prosecutor excluded three jurors, P.S., Y.A., and D.P.S., based on race during voir dire. To show a Batson violation, an appellant must generally demonstrate his or her particular factual situation satisfies the well-established test laid out by the United States Supreme Court's opinion in that case: First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for his or her peremptory challenges. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination. 476 U.S. at 96–98.
To satisfy his burden of alleging facts that, if true, would entitle him to an evidentiary hearing on his claim of ineffective assistance of counsel with respect to this Batson issue, Gaines must start by alleging facts establishing a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. Gaines has failed to do so here. Specifically, Gaines has failed to identify the race of all the venirepersons who were removed by the prosecution, the race of all the jurors who served, or the race of all the jurors acceptable to the State who were stricken by the defense. Gaines is not entitled to an evidentiary hearing because he has failed to satisfy his burden to allege facts that, if true, would demonstrate that his trial counsel's performance was deficient in failing to lodge a Batson challenge. e. Trial counsel's failure to strike community corrections officer from jury
Finally, Gaines alleges an evidentiary hearing is necessary to resolve his claim that trial counsel was ineffective for leaving a Sedgwick County community corrections officer on the jury. Although the district court did not address this claim, this court may consider it because Gaines raised it below in his K.S.A. 60–1507 motion.
Gaines claims his trial counsel should have struck juror N.J. because he was a community corrections officer who had a good relationship with both the district court and the prosecutor. He says it is a basic tenet of criminal defense practice that you do not leave law enforcement employees on the jury in a criminal case, to which any criminal defense expert would testify to at an evidentiary hearing. However, he did not provide the name of any witnesses who would testify as such. See Swenson, 284 Kan. at 938. Nor did he cite any authority in his brief on this issue. Failure to support a point with pertinent authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
Regardless, Gaines has not presented any facts to show that trial counsel's conduct was deficient. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). The decision on what jurors to accept or strike and all other strategic and tactical decisions are within the exclusive province of the defense lawyer after consultation with his client. Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972); Vincent v. State, No. 101,478, 2009 WL 5062432, at *3 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1105 (2010). Furthermore, our Supreme Court has noted:
“ ‘It may be that had defendant's counsel on appeal conducted the defense at trial, he would have done things differently. Whether or not he would have fared better before the jury is a matter of conjecture. Where experienced attorneys might disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective counsel. [Citations omitted.]’ “ State v. Kendig, 233 Kan. 890, 896, 666 P.2d 684 (1983).
Although Gaines correctly points out that an evidentiary hearing would determine what strategic reason his trial counsel had for leaving N.J. on the jury, he has not satisfied his burden to allege any facts that indicate trial counsel's failure to strike N.J. was deficient. See Vincent, 2009 WL 5062432, at *3 (“Vincent has failed to show that [trial counsel] decided to keep the jurors for any reason other than a tactical consideration[.] Vincent's claim does not have merit.”). Despite N.J.'s associations with the court, the record shows that N.J. stated during voir dire that he could be impartial. Again, Gaines only speculates that the facts that would emerge at an evidentiary hearing would prove that his trial counsel's performance was ineffective.
Even if this court assumes Gaines' trial counsel was deficient for failing to strike N.J., Gaines cannot show he was prejudiced by this failure. As the State contends, there is evidence that Gaines was not prejudiced by any alleged deficient performance on this issue by his trial counsel because the jury acquitted him on one of the three charges. See Holman, 295 Kan. at 129–30.
Gaines therefore failed to satisfy his burden to establish facts that would entitle him to an evidentiary hearing. His allegations do not show that counsel's failures to strike N.J. fell below an objective standard of reasonableness to qualify as deficient or that the outcome of the proceeding would have been different had N.J. been struck from the jury to establish prejudice. See Harris, 288 Kan. at 416;Rice v. State, 43 Kan.App.2d 428, 437–38, 225 P.3d 1200 (2010). Thus, the district court correctly held that the motions, files, and records conclusively showed that Gaines was not entitled to relief.
Affirmed.