Opinion
No. 107,490.
2013-06-7
Thomas WILSON, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick County; Anthony J. Powell, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick County; Anthony J. Powell, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Thomas Wilson was convicted of aggravated robbery, and his conviction was affirmed on appeal. Wilson then filed a habeas corpus action under K.S.A. 60–1507 to challenge his confinement, alleging several grounds for relief. The district court concluded that only one of Wilson's claims—that his trial attorney had provided inadequate representation by failing to call Lorenzo Hawkins as a trial witness—had sufficient merit to warrant holding an evidentiary hearing. After that hearing, the district court found that there was no basis to grant relief to Wilson.
Wilson has appealed, contending that the district court should have given him an evidentiary hearing on one other claim—that his trial attorney should have called an alibi witness, Crystal Trujillo. Wilson also claims that the attorney who handled his habeas claim under K.S.A. 60–1507 provided inadequate representation.
No evidentiary hearing is required where the record conclusively shows that the defendant has no claim. Here, the record conclusively shows that Wilson cannot obtain relief for his attorney's failure to present the testimony of an alibi witness that the attorney only became aware of on the day before trial. Further, we ordinarily do not consider claims of ineffective assistance of counsel when they are raised for the first time on appeal since such claims are best handled first in the district court, where the factual background for the claim can be explored in an evidentiary hearing. We find that this is not one of the rare occasions on which we should consider this claim where it was not raised first in the district court. We therefore affirm the district court's denial of Wilson's habeas corpus motion.
Factual and Procedural Background
This K.S.A. 60–1507 motion follows Wilson's conviction for aggravated robbery, which was affirmed on direct appeal to this court. State v. Wilson, No. 101,459, 2010 WL 653126 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1104 (2010). We will briefly review the facts of the underlying criminal case since they frame our consideration of whether Wilson's trial attorney provided adequate representation to him.
On the evening of August 29, 2007, in Wichita, James Mullins reported that he had been robbed by a man named “T.L.,” whom Mullins later identified as Wilson. Mullins told police that he knew Wilson through Wilson's uncle and from having interacted with Wilson on a prior occasion. Mullins said that Wilson had come to Mullins' home looking for Wilson's uncle. After briefly sitting with Mullins on the porch, Wilson started to leave. Mullins said that Wilson then turned, brandished a pistol, and ordered Mullins to give his four gold rings and the money in his wallet to Wilson. Mullins said that he complied, giving his rings and $100 in cash to Wilson. Wilson then left Mullins' home.
Wilson was charged with aggravated robbery and two other offenses that were ultimately prosecuted separately. At the preliminary hearing, Mullins testified to the account that he had given police on the night of the robbery. Wilson had a chance to cross-examine Mullins at the preliminary hearing. Before trial began, however, Mullins died of natural causes. At Wilson's trial on the aggravated-robbery charge, the district court admitted the transcript of Mullins' testimony at the preliminary hearing and Mullins' statements to police into evidence.
On the morning of May 12, 2008, the day jury trial was set to begin, Wilson filed a notice of alibi listing Crystal Trujillo as an alibi witness. Before trial began, Wilson's attorney explained to the district court and the State that Wilson had only told her about this potential alibi witness the night before. But a Kansas statute requires that a 7–day notice be given if the defendant plans an alibi defense, K.S.A. 22–3218(1), and the State refused to waive that requirement. During trial the next day, Wilson's attorney renewed her request to put on Trujillo as an alibi witness, conceding that she had not been able to contact Trujillo until that morning and was uncertain whether Trujillo had been served a subpoena, whether she would appear as scheduled, or exactly what she would testify to. Wilson's attorney also stated that, according to Wilson, Trujillo had been reluctant to testify until the previous weekend, when she apparently told Wilson's family members that she would be willing to come to court. Wilson's attorney provided a proffer of Trujillo's testimony that Wilson had been with Trujillo at a residence on George Washington Boulevard during the alleged robbery. The court refused to allow Trujillo to testify, explaining that Wilson had had plenty of time to disclose this alibi witness before the morning of trial.
At trial, the State presented only the transcript of Mullins' preliminary-hearing testimony and testimony from officers who spoke to Mullins. Wilson presented no witnesses in defense. Wilson was convicted of aggravated robbery and received a 233–month prison sentence.
Wilson appealed to our court, arguing against the admission of Mullins' preliminary-hearing testimony and hearsay statements into evidence, the sufficiency of the evidence, and the assessment of a $100 BIDS application fee. Our court found no error on these counts and affirmed Wilson's conviction. 2010 WL 653126, at *8. Our Supreme Court denied review on May 19, 2010. 290 Kan. 1104 (2010).
On February 14, 2011, Wilson filed a motion pursuant to K.S.A. 60–1507 alleging several grounds for relief, including ineffective assistance of counsel, insufficient evidence, improper jury instructions, and prosecutorial misconduct. Only two grounds are relevant to this appeal: that trial counsel was ineffective for failing to call (1) Crystal Trujillo and (2) Lorenzo Hawkins as witnesses at trial. Wilson alleged that Trujillo could have served as an alibi witness but that his attorney failed to contact Trujillo before trial. Instead, Wilson stated that his family had had to contact Trujillo, who could not testify on the day of trial because no one had provided the 7–day notice required for alibi witnesses under Kansas law. Wilson claimed that Trujillo could have presented a complete alibi defense—that Wilson was with her, rather than at Mullins' house, at the time the robbery occurred. Wilson also alleged that Hawkins could have testified that Wilson was not the man who robbed Mullins.
The district court held a preliminary hearing to consider Wilson's motion, appointing attorney Pamela Parker to represent Wilson throughout the proceedings. The court ordered an evidentiary hearing on the limited issue of whether trial counsel was ineffective for failing to call Hawkins to testify. The court denied all other grounds for relief, finding them to be without merit. Specifically, regarding counsel's failure to present Trujillo's testimony, the court's order found that Wilson “cannot show that trial counsel was ineffective as to the investigation/presentation of Trujillo's alibi testimony.”
Wilson's trial attorney, Alice Osburn, testified at the evidentiary hearing. Osburn said that she became aware of Hawkins through the probable-cause affidavit that had been used to support the filing of the criminal complaint. The affidavit said that a police officer had spoken to Hawkins, who told the officer that he was scraping paint on the south side of Mullins' home when he saw a young black male talking to Mullins on the front porch. Hawkins said he didn't pay much attention and went back to his work.
Osburn testified that she hired an investigator to interview Hawkins. The interview occurred only 3 days before trial and after Mullins had passed away. The investigator was present and available at the habeas hearing to testify if needed. Osburn related what the investigator had told her: Hawkins said that he was just leaving for his break when a young man came and spoke to Mullins on the porch. About 20 minutes later, Hawkins returned from his break, and Mullins told him that the man robbed him. Hawkins believed at the time that Mullins was friends with the man. Hawkins said he would recognize the man again and said that he thought the man was the nephew of Mark Wilson, a friend of Mullins', and that the man showed up that day looking for Mark. Hawkins also said that Mullins later received phone calls offering to return the money and jewelry if Mullins didn't testify.
Based on this information, Osburn decided that Hawkins would not be a favorable witness to call at trial because Hawkins would identify Wilson as being present right before the robbery, would be able to testify that Mullins told him that Wilson was the person who robbed him, and could testify about the possible intimidation of Mullins as a witness due to the phone call.
Wilson testified that the only discussion about Hawkins he had before trial was when he told Osburn that, from what Wilson read in the police report, Hawkins said he'd never seen Wilson before and that he didn't see a robbery on the day of the crime. Wilson said he discussed with Osburn the possibility of calling Hawkins as a witness because Hawkins did not identify Wilson when he was originally interviewed by a police officer. Wilson said he asked Osburn to call Hawkins as a witness at trial.
The district court found that the decision to not call Hawkins to testify was objectively reasonable—in fact, it would have actually been harmful to call Hawkins to testify because Hawkins would have further implicated Wilson. The court also noted in its order that Wilson could not show that any prejudice was caused to him even if Hawkins had been called to testify. The court denied relief, finding that the records, files, motions, and evidence in the case conclusively showed that Wilson was not entitled to relief on any of his claims.
Wilson has appealed to this court. After this appeal was docketed, Wilson filed a motion to remand to the district court for an evidentiary hearing to determine whether his attorney at the habeas hearing had provided adequate representation. Our court denied the motion.
Analysis
I. Wilson Is Not Entitled to an Evidentiary Hearing on His Claim that Trial Counsel Was Ineffective for Failing to Present an Alibi Witness.
Wilson argues that an evidentiary hearing was required for his ineffective-assistance-of-counsel claim regarding his attorney's failure to present Trujillo's alibi testimony at trial. Specifically, Wilson stresses that Osburn was ineffective for failing to seek a continuance so that a 7–day notice could be given before a new trial date and Trujillo could be subpoenaed. Wilson asserts that Trujillo's alibi testimony “was a complete defense to these charges and would probably [have] resulted in a different outcome.”
On the merits of an ineffective-assistance claim, the defendant has the burden to show two things: (1) that the attorney's work was below minimum standards and, thus, constitutionally deficient; and (2) that the attorney's substandard work prejudiced the defense. Mattox v. State, 293 Kan. 723, 725, 267 P.3d 746 (2011). The second part of that test ordinarily requires showing a reasonable probability that the result of the trial would have been different but for the attorney's substandard work. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984); Mattox, 293 Kan. at 725–26. A reasonable probability is one sufficient to undermine confidence in the trial's outcome. State v. Bricker, 292 Kan. 239, 246, 252 P.3d 118 (2011).
Here, though, we are not asked to consider the merits of Wilson's claim. We are simply asked to consider whether he was entitled to an evidentiary hearing on the issue, which is required unless the motions, files, and record of the case conclusively show that the movant is not entitled to relief. K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2012 Kan. Ct. R. Annot. 274). To warrant an evidentiary hearing, a 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.’ [Citation omitted.]” Trotter v. State, 288 Kan. 112, 131–32, 200 P.3d 1236 (2009).
On appeal, we give deference to any factual findings made by the district court. We then determine whether the findings of fact are supported by substantial evidence and, ultimately, whether those findings are sufficient to support the court's conclusions of law. Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). When the district court denies relief under K.S.A. 60–1507 based solely upon counsel's legal argument at a nonevidentiary hearing and upon the court's review of the files and records of the case, an appellate court is in as good a position as the district court to consider the merits—since it has access to the same information—so we review the denial of relief without deference to the district court. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
Here, the district court granted a preliminary hearing to consider the various claims asserted in Wilson's motion. The claim that Osburn was ineffective for failing to present Trujillo's alibi testimony was briefly argued at the preliminary hearing. After the hearing, however, the court denied relief on this claim, simply ruling that because Wilson did not tell Osburn about Trujillo until the night before trial and because the State objected to the testimony, Wilson “cannot show that trial counsel was ineffective as to the investigation/presentation of Trujillo's alleged alibi testimony.”
Wilson's argument centers on Osburn's failure to request a continuance—either before trial or during trial—in order to ensure that Trujillo could testify. Wilson insists that without holding an evidentiary hearing, the district court could not have known Osburn's reasons for failing to request a continuance.
The State counters that the failure to request a continuance is unrelated to the issue presented by Wilson's motion—whether Osburn was ineffective for failing to contact Trujillo in a timely matter. Although the State argues that Wilson is “tweak[ing]” the issue by focusing on Osburn's failure to seek a continuance, Wilson's argument is closely related to the allegations in the K.S.A. 60–1507 motion, where he complained that Osburn did not file a notice of alibi witness until it was too late. If Osburn had successfully obtained a continuance, the timeliness problem would have been resolved.
Two procedural statutes are relevant to this issue. First, K.S.A. 22–3218(1) requires a defendant to give notice before trial if the defendant will call an alibi witness other than the defendant. The statute requires the notice to be served to the State at least 7 days before trial, but “[f]or good cause shown[,] the court may permit notice at a later date.” K.S.A. 22–3218(2). This requirement seeks to protect the State from eleventh-hour defenses that can be easily fabricated. State v. Claiborne, 262 Kan. 416, 423, 940 P.2d 27 (1997). The district court has discretion to exclude alibi testimony because of noncompliance with the notice requirements. 262 Kan. at 423.
Next, K.S.A. 22–3401 provides that a district court may grant a continuance for “good cause shown.” The decision to continue a criminal case lies within the sound discretion of the district court, even when the defendant claims that denying a continuance would interfere with the constitutional right to present a defense. State v. Stevens, 285 Kan. 307, 322–23, 172 P.3d 570 (2007); see State v. Lee, 45 Kan.App.2d 1001, 1011, 257 P.3d 799 (2011), rev. denied 293 Kan. –––– (January 20, 2012). When a request for a continuance has been made in order to secure attendance of a witness at trial, relevant factors for the court to consider include: the possible prejudice to the parties, the diligence or lack thereof in attempting to secure the attendance of the witness, the materiality and importance of the probable testimony, and the probability of the witness' appearance at a later date if the continuance is granted. State v. Carter, 284 Kan. 312, 319, 160 P.3d 457 (2007); Lee, 45 Kan.App.2d at 1012.
Comparison of the two statutes shows an important commonality between them: Under either statute, the district court could have allowed Trujillo to testify—either that day or at a new trial date at least 7 days later—if it had found “good cause shown.” The fact that the court did not exercise its discretion to allow the alibi witness strongly suggests that it would not have exercised its discretion to grant Wilson a continuance either.
Further, most of the discretionary factors the court would consider for a continuance would also be relevant to the decision not to allow Trujillo's alibi testimony. See Carter, 284 Kan at 319;Lee, 45 Kan.App.2d at 1012. Most important, of course, was the lack of diligence in securing Trujillo's attendance. When Osburn renewed her request to allow Trujillo to testify, Osburn candidly admitted that she had not been able to contact Trujillo until that morning and was uncertain whether Trujillo had been served a subpoena or even whether she would appear as scheduled. The court also relied on the State's refusal to waive the 7–day notice requirement, suggesting it may have allowed the alibi testimony if the State did not feel it would be prejudiced by this unexpected development. And while an alibi is certainly a very important defense, it was unclear how material and important Trujillo's testimony would be, given that Osburn had little idea of the specifics of Trujillo's testimony. Additionally, because the witness' appearance was uncertain even on that day, it was far from certain that Trujillo would appear at a later date if a hypothetical continuance were to be granted.
Wilson relies on State v. Greene, 272 Kan. 772, 778–79, 37 P.3d 633 (2001), in which our Supreme Court determined that the defendant's attorney was ineffective for failing to request a continuance based on information that was given to him by the defendant during jury selection. Greene had lied to his attorney in offering an alibi defense to his murder and aggravated-battery charges. During jury selection, Greene told his attorney that he had actually shot the two victims because of his previous relationship with one of the victims. Greene's attorney did not withdraw the notice of alibi or ask for a continuance to prepare a new defense. Our Supreme Court determined that the defense attorney's inaction had detrimentally affected Greene's credibility and did not allow for appropriate preparation of the defense. 272 Kan. at 779.
Unlike in Greene, Wilson's defense did not change dramatically because of the new information revealed just before trial. Presumably, Wilson's defense to the crime had always been that he was not the person who robbed Mullins, relying on the fact that Mullins—the only person who specifically identified Wilson as the robber—was dead. The addition of Trujillo's alibi testimony would only have strengthened that defense. Therefore, Greene is not very persuasive when applied to the facts of Wilson's case.
Here, the trial transcript very clearly articulates the dilemma that Osburn and the court were faced with. If Osburn was aware of Trujillo's possible testimony before this date and failed to contact her, then Wilson would certainly be entitled to a hearing on this claim. But there is no evidence that Wilson ever told Osburn about Trujillo prior to the day before trial. The record is clear that once Osburn was made aware of this alibi witness, she tried to persuade the court to allow the testimony despite the short notice.
Although Osburn did not request a continuance, she nonetheless asked the court to exercise its discretion to allow Trujillo to testify—facing essentially the same hurdles as she would have to obtain a continuance. The district court considered the request but refused to allow the testimony.
We also find it significant that the trial had already been continued four times by the defense. Given this—and the district court's failure to find “good cause” to allow the late notice of an alibi witness—we think it unlikely that the district court would have granted a fifth continuance at this late date. While it's true that an effective alibi defense could have changed the outcome of Wilson's trial, there is no real likelihood here that Osburn could have convinced the district court to allow the eleventh—hour alibi testimony-whether on that day or after a continuance.
Because the record is clear as to what happened, there is no need to remand for an evidentiary hearing to determine more facts. Wilson's trial attorney acted reasonably to attempt to present Trujillo's testimony once Wilson told his attorney about the potential witness. The motions, files, and record of the case conclusively show that Wilson is not entitled to relief on this ineffective-assistance-of-counsel claim. See K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2012 Kan. Ct. R. Annot. 274). The district court did not err when it refused to hold an evidentiary hearing on this claim.
II. This Court Should Decline to Rule on the Merits of Wilson's Claim of Ineffective Assistance of K.S.A. 60–1507 Counsel Raised for the First Time on Appeal.
Wilson also argues that he received ineffective assistance of counsel at his habeas hearings. Specifically, Wilson now alleges that his habeas attorney, Pamela Parker, was ineffective because she failed to argue that Osburn should have requested a continuance to ensure Trujillo's testimony, failed to challenge Osburn's unverified hearsay-within-hearsay when recounting her investigator's discussion with Hawkins, failed to challenge Osburn's assertion that Hawkins believed Wilson was Mark Wilson's nephew, failed to submit the probable-cause affidavit and police report into evidence, and failed to investigate Hawkins for purposes of preparing for the evidentiary hearing.
Wilson raises this claim for the first time on appeal. Generally, an appellate court will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal. State v. Gleason, 277 Kan. 624, Syl. ¶ 5, 88 P.3d 218 (2004); Alford v. State, 42 Kan.App.2d 392, 394, 212 P.3d 250 (2009). As our Supreme Court has explained, we are not well equipped to handle such claims without an initial factual review in the district court:
“[T]he rationale for this limitation is a recognition that the [district] court is best equipped to deal with the analysis required for such claims because it observed counsel's performance and competence first-hand and can apply that knowledge to the facts. [Citation omitted.] Often, the pertinent questions are subject to conflicting testimony and evidence regarding counsel's actions or inactions, the significance to be given to them, and the strength or weakness of a particular argument. It is rare when the acts of counsel are not in dispute and so clearly reflected in the record that remand would serve no real purpose. [Citations omitted.]” State v. Levy, 292 Kan. 379, 388–89, 253 P.3d 341 (2011).
Even so, when the quality of counsel's assistance can be determined from the record on appeal, the appellate court can address the issue without remanding it. Robertson v. State, 288 Kan. 217, Syl. ¶ 6, 201 P.3d 691 (2009); Alford, 42 Kan.App.2d at 394.
When an appellant raises an ineffective-assistance-of-counsel claim for the first time on appeal, an appellate court has three options: (1) decline to rule on the merits of the claim until the appellant has first filed a separate K.S.A. 60–1507 motion in district court; (2) rule on the merits on the “extremely rare” occasion that there is a sufficient record; or (3) remand the case for what's commonly called a Van Cleave hearing, either upon the appellant's motion or on the court's own motion, “so that facts relevant to determination of the legal issue may be developed and an evidentiary record established.” See Rowland v. State, 289 Kan. 1076, 1084–85, 219 P.3d 1212 (2009); State v. Van Cleave, 239 Kan. 117, 119–21, 716 P.2d 580 (1986).
This is not the “extremely rare” occasion where there is a sufficient record to determine whether Parker provided ineffective assistance. If this court were to address the merits of Wilson's issue, it would necessarily have to engage in speculation. This is not a case in which the record discloses both that the attorney's work was clearly below standard and that poor representation adversely affected Wilson. For instance, this is not a case where an attorney advocated against or abandoned his or her client's interests. See Brown v. State, 278 Kan. 481, 484, 101 P.3d 1201 (2004); Campbell v. State, 34 Kan.App.2d 8, 13–14, 114 P.3d 162 (2005).
Regarding Wilson's hearsay-within-hearsay argument, Parker could have objected to Osburn's testimony at the evidentiary hearing, though presumably that would simply have resulted in testimony from the investigator in addition to Osburn's. We cannot determine from the record what prejudice, if any, may have resulted from the failure to object. Because there was virtually no evidence to suggest that calling Hawkins as a trial witness would have helped Wilson's defense, Wilson has not demonstrated that Parker's failure to challenge the hearsay statements undermined confidence in the outcome of the habeas proceeding.
Additionally, if this court were to address the merits, Wilson's framing of the issue would effectively allow him to bypass the contemporary-objection rule and argue the admission of the hearsay evidence before this court. Generally, a party must make a contemporaneous and specific objection to the admission of evidence in order to preserve the issue for appeal. See State v. Harris, 293 Kan. 798, 813–14, 269 P.3d 820 (2012); K.S.A. 60–404. Here, not only was there no objection to the testimony, denying the district court a chance to rule on its admissibility, but Wilson did not even present this ineffectiveness claim to the district court.
As for Wilson's claims that Parker did not investigate Hawkins, a lack of investigation is not apparent from the hearing transcript. While Wilson claims that Parker failed to contact Hawkins, the focus of the evidentiary hearing was Osburn's conduct at trial, not whether Hawkins could identify Wilson from a photo array several years later. Moreover, Wilson points to no evidence actually demonstrating that Parker failed to investigate. If Parker had, for instance, discovered that Hawkins would have affirmatively identified Wilson as the robber, it would have been harmful to Wilson's interests for her to bring that information up at the evidentiary hearing on Osburn's ineffectiveness.
Since this is not the extremely rare occasion in which we can evaluate the claims on appeal from the record we have, Wilson's claim must be examined under the Van Cleave guidelines. The Kansas Supreme Court recently explained that, except in highly unusual cases, an appellant must show that he or she has done some investigation and that there are facts that need to be presented in an evidentiary hearing to obtain a Van Cleave remand:
“In Van Cleave, we set guidelines for an appellate court to follow in exercising its discretion when deciding whether to remand a case for an evidentiary hearing. In that case, we noted an appellant's counsel must do more than simply read the cold record of the proceedings before the district court and then argue that he or she would have handled the case differently. We held that counsel must attempt to determine the circumstances under which trial counsel did—or did not—proceed as the appellate counsel believes preferable and conduct at least some investigation into the claimed ineffectiveness. We then noted: ‘Except in the most unusual cases, [for an appellate counsel] to assert a claim of ineffective assistance of counsel without an independent inquiry and investigation apart from reading the record is questionable to say the least.’ [Citations omitted.]” Levy, 292 Kan. at 389.
The record and briefing in this appeal do not reflect that the current appellate attorney conducted any investigation of the claim. There is no indication that any of the relevant parties—Wilson, Parker, or the prosecutor—have been interviewed or even contacted regarding Parker's alleged ineffectiveness. Rather, the merits of the claim are based upon nothing more than a reading of the record and allegations that things could have been done differently. Because Wilson has failed to meet the minimal requirements established in Van Cleave, his case should not be remanded to the district court.
In the usual case, we do not consider a claim that trial counsel was ineffective where the claim is first raised on appeal. Nothing about this case takes it out of that general rule. We therefore decline to rule upon the merits of Wilson's claim that his habeas attorney provided inadequate representation. See Rowland, 289 Kan. at 1084–85.
The district court's judgment is affirmed.