Opinion
No. 105,570.
2012-06-15
In the Matter of the Care and Treatment of Michael R. CHUBB.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael R. Chubb appeals a jury verdict finding him a sexually violent predator pursuant to K.S.A. 59–29a01 et seq. Chubb contends that the petition filed by the State of Kansas was insufficient to establish the district court's jurisdiction, that the State's attorney committed misconduct, and that his own counsel was ineffective. We affirm the jury's verdict.
Factual and Procedural Background
On June 18, 2008, the State filed a petition seeking Chubb's commitment as a sexually violent offender. The State alleged Chubb was in custody upon his conviction for aggravated indecent liberties with a child. The State anticipated Chubb's release from imprisonment on August 21, 2008, and claimed he “suffers from a mental abnormality or personality disorder that makes him likely to engage in repeat acts of sexual violence.”
The State specified Chubb's mental abnormality was “Pedophilia, see attachment,” but it failed to include an attachment to the petition. The State did allege a “history of sexual activities” that demonstrated Chubb's pedophilia. The State further alleged that Chubb's condition “is unamenable to existing mental illness treatment modalities, that he is likely to engage in repeat acts of sexual violence, and that he has serious difficulty controlling his dangerous behavior.” As a result, the State asked the district court to find “probable cause to believe [Chubb] is a sexually violent predator and order [him] to be taken into custody ... and transferred to an appropriate facility for a further evaluation.” The petition was signed and verified by Special Assistant Attorney General Marc Bennett.
After “having read the Petition and attachments thereto,” the district court found “probable cause exists to find that [Chubb] may meet the criteria of a sexually violent predator.” The district court appointed counsel for Chubb and held a probable cause hearing. Trial was delayed for nearly 2 years, however, due to numerous continuances and changes in Chubb's counsel.
Prior to trial, Bennett filed a “Motion for Pretrial Conference.” In the motion, Bennett announced a stipulation with Chubb's counsel “to the foundation for the documents in discovery.” The parties would “reserve the right to object at the time of trial to the admission of said documents on grounds other than foundation, including but not limited to objections based on hearsay and relevance.”
Bennett further explained:
“In the instant matter, the doctor or doctors the State calls are expected to testify that they did rely in part on documents, reports and analysis generated by others as set forth in the 2338 pages of materials provided to [Chubb]. To comply with K.S.A. 60–456 and relevant case law, the State will seek to admit these documents in their entirety. That said, the State recognizes there may be otherwise inadmissible material contained in the bulk of documentary material.
“In an effort to comply with statutory requirements while limiting the risk posed by the wholesale admission of potentially otherwise inadmissible material, the State proposes the documents be admitted for the appellate record only. In this manner, the material would be admitted for the record—thus complying with ... Casey [v. Phillips Pipeline Co., 199 Kan. 538, 546, 431 P.2d 518 (1967) ] and K.S.A. 60–456—but not provided en masse to the jury for its consideration. In this manner, the expert may be presented with individual documents during the trial and objections could still be lodged to the admission of either the document or testimony concerning the document.”
On October 19, 2009, the district court appointed Casey Cotton as new counsel for Chubb. Trial was later set for August 23, 2010. On August 20, 2010, the parties appeared for a motion hearing during which the stipulation regarding evidence was discussed with the district court. The following exchange occurred:
“THE COURT: And both of you [counsel] and Mr. Chubb do agree that the case will proceed as Mr. Bennett has outlined it, and that although the State is not going to introduce all of the material, it would be available for the [expert witnesses] ...; is that correct?
“MR. BENNETT: I should clarify. Even if [Cotton] wants to ask a KDOC employee about ... records and things that Mr. Chubb did while in DOC, I'm not going to object to foundation and demand they bring in a records custodian. He can use those witnesses as well. For that matter, if Mr. Chubb wants to testify, he can refer to [the] records. I'm not going to object to foundation for the documents that are in discovery.
....
“Both parties and all witnesses have access to it. So we can have this put to the jury in [a] manner that doesn't cause unnecessary delay.
7F'MR. COTTON: ... I think the suggestion was that we should have the documents available and perhaps even stipulate [to] their admission for the appellate purposes. But—and that way the—when [an expert] is referring to something, this is a record that we reviewed and it's part of my opinion, the records are available. They won't be submitted directly to the jury, but at least they are present.
“THE COURT: Weil, the only thing the Court is trying to determine is that both counsel and the defendant are in agreement with this procedure.
“MR. COTTON: I'm sorry, Your Honor. Yes, the defense is in agreement with that.
“THE DEFENDANT: (Nods head.) Yes ... Your Honor.”
At the jury trial, the State's sole witness was David Landers, Ph .D., a psychologist who conducted Chubb's sexually violent predator evaluation. During a break in Dr. Lander's testimony, the following exchange occurred:
“MR. BENNETT: Just briefly, I'll tell the court I will at some point here move—I can move to do it now—admit all the discovery as State's Exhibit 1A for the appellate record, not to be given back to the jury.
“But the way, when Mr. Cotton begins his cross examination, anything he wants is available to him. I'll mark this large packet of information as 1A. And I'll have the exact page numbers 1 through 2,500 pages roughly, I'll put that into the record formally in a little bit. But in case I finish up before the noon hour, that way Mr. Cotton can begin and know that all this is available to him.
“THE COURT: All right. Any objection to 1A going in?
“MR. COTTON: No, your Honor.
“THE COURT: All right. Then I'll allow State's Exhibit 1A to go in for purposes of the record only, it's not to be sent to the jury.”
No other exhibits were admitted at trial. The parties stipulated, however, that Chubb had been convicted of aggravated indecent liberties with a child in 2003, and the testimony revealed further convictions for sexual and nonsexual crimes. Dr. Landers estimated that Chubb had had 203 sexual victims—12 “contact offenses,” about 180 victims of indecent exposure, and the remaining individuals were apparently victims of indecent solicitation. Dr. Landers diagnosed Chubb with pedophilia, exhibitionism, and personality disorder not otherwise specified, with antisocial and avoidant traits. Dr. Landers characterized Chubb as “remarkably evasive and defensive” and testified that he lacked remorse.
Both counsel used documents from Exhibit 1A during Dr. Lander's testimony. Documents from Exhibit 1A were also used during direct and cross-examination of the defense witnesses, Robert W. Barnett, Ph.D. and Chubb, During trial, neither counsel objected to the procedure. Bennett ended his cross-examination of Dr. Barnett as follows;
“Q. In your report, you concluded with the following. That the conclusions, the diagnosis, the recommendations contained in your report are based on the information that was available at the time of your assessment [and] would be subject to revisions if further information were made available. Right?
“A. Yes.
“Q. You've learned some further information today?
“A. Yes.
“Q. Containing [ sic ] your opinions of Mr. Chubb in any way?
“A. Yes.
“Q. How so?
“A. Well, I think the accuracy of a number of things he told me is questionable....
“I'm also concerned that, regarding some easily verifiable things, he told basically three people three different things....
“I will say this. I deal with an awful lot of people who are not always the most honest, and I assume that a certain percentage of what I'm being told is not correct, or more may be shaded or hitched a little bit. But the things—this concerns me.”
The jury found Chubb to be a sexually violent predator. Chubb filed a timely appeal. After he had docketed the appeal, Chubb filed a motion to add Exhibit 1A to the record under Supreme Court Rule 3.02 (2011 Kan. Ct. R. Annot. 23). This court granted the motion, and the exhibit contains thousands of pages of paper documents and three CDs of additional material.
Jurisdiction
Chubb contends the petition filed by the State was insufficient to establish the district court's jurisdiction. Chubb did not raise this issue in the district court, and it is unclear on appeal whether he means to challenge personal or subject matter jurisdiction. Chubb quotes K.S.A.2010 Supp. 59–29a04(a) and argues that absent the attachment to the petition, “[t]here was no evidence presented to the court that [he] suffered from a mental abnormality.”
Our review over issues of jurisdiction and statutory interpretation is unlimited. See State v. Hernandez, 294 Kan. 200, 273 P.3d 774, 779 (2012); Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).
If Chubb is challenging personal jurisdiction, the district court gained jurisdiction when he did not raise this as a defense in his first responsive pleading. See K.S.A.2010 Supp. 60–212(h); see also K.S.A.2010 Supp. 60–201(b) (“This article governs the procedure in all civil actions and proceedings in the district courts of Kansas, other than actions commenced pursuant to the code of civil procedure for limited actions.”). On the other hand, assuming Chubb is challenging subject matter jurisdiction, Kansas follows notice pleading standards unless otherwise provided. See Rector v. Tatham, 287 Kan. 230, 232, 195 P.3d 364 (2008); K.S.A.2010 Supp. 60–208(a). The statute Chubb quotes, K.S.A.2010 Supp. 59–29a04(a), provides that the State may file a sexually violent predator petition “alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation.” Chubb does not dispute that the State made the allegation and stated some facts to support it.
Instead, Chubb complains that with the omission of the attachment, the State had presented no evidence in support of its allegations. The statute, however, does not require evidence. See K.S.A.2010 Supp. 59–29a04(a). In support of his contention, Chubb cites In re Care & Treatment of Sporn, 289 Kan. 681, 688, 215 P.3d 615 (2009), which refers to the State's burden in sexually violent predator proceedings. The issue in Sporn, however, was whether a jury verdict in a 2005 sexually violent predator proceeding was res judicata in a 2007 proceeding. 289 Kan. at 681–82, 686. Our Supreme Court held it was res judicata because “the State failed to carry its burden of establishing that Sporn's mental status and risk assessment materially changed in the interim between the 2005 and 2007 ... proceedings.” 289 Kan. at 688. Because the 2005 and 2007 petitions in Sporn were “nearly identical,” the “2007 petition was insufficient to survive dismissal.” 289 Kan. at 688–89. Thus, although our Supreme Court mentioned a State's burden in Sporn, this was a burden to show “the facts were sufficiently different to permit relitigation.” 289 Kan. at 688 (citing Turner v. Superior Court, 105 Cal.App. 4th 1046, 1061–63, 130 Cal.Rptr.2d 300 [2003] ). Here, in contrast, the State needed to allege only those facts necessary to initiate the action.
Regardless, the subsection following K.S.A.2010 Supp. 59–29a04(a), clarifies that the statute's provisions “are not jurisdictional, and failure to comply with such provisions in no way prevents the attorney general from proceeding.” K.S.A.2010 Supp. 59–29a04(b), Moreover, even if some other provision of the law required evidence, the State filed a verified petition. See Irvin v. Irvin, 182 Kan. 563, 565, 322 P.2d 794 (1958) (verified petition received in evidence). We conclude the petition filed by the State was sufficient to establish the district court's jurisdiction.
Misconduct by the State's Attorney
Chubb asserts he “was deprived of his right to a fair trial” by the misconduct of the State's attorney. In particular, Chubb claims Bennett used “specific documents that were admitted as a part of Exhibit 1A and which were prohibited by stipulation to be used against Mr. Chubb and which were specifically prohibited from being admitted into evidence and were prohibited from being reviewed by the jury.” Chubb also complains that “during the cross examination of Dr. Barnett, ... Bennett presented a number of documents that Dr. Barnett had not seen nor reviewed, read the documents into the record and asked no questions. Thereby, the State was admitting evidence to the record that could not be presented to the jury.”
At the outset, we do not see any factual basis for Chubb's assertions. To the contrary, as summarized earlier, the stipulation clearly anticipated—indeed, facilitated—the admission and use of individual documents in Exhibit IA at trial by both the State's attorney and defense counsel. The stipulation established the evidentiary foundation for the documents but also provided that “objections could still be lodged to the admission of either the document or testimony concerning the document.”
The critical question then arises: Did Chubb make a contemporaneous objection to any of the documents, testimony about the documents, or questions posed by the State's attorney about the documents which he now contends were either inadmissible or improper? Our review of the record reveals that Chubb did not contemporaneously object to the inadmissibility of the documents, testimony based on the documents, or questioning by the State's attorney related to the documents.
Chubb's failure to contemporaneously object during trial is important:
“When a defendant raises an issue on appeal in the prosecutorial misconduct context that is truly an evidentiary question—that is, any claim relating to a prosecutor's questions or answers during direct or cross-examination, or any other claim relating to the admission or exclusion of evidence—the defendant's characterization of the issue cannot avoid the statutory requirement of K.S.A. 60–404 requiring a timely and specific objection at trial.” State v. King, 288 Kan. 333, Syl. ¶ 6, 204 P.3d 585 (2009) (applying K.S.A. 60–404 to the alleged constitutional error of prosecutorial misconduct during questioning in a criminal trial).
Without a contemporaneous objection, Chubb's claim of misconduct which focuses on the admission of evidence at trial was not preserved for appellate review.
Chubb relies on another sexually violent predator case, In re Care & Treatment of Ontiberos, 45 Kan.App.2d 235, 247 P.3d 686 (2011), rev. granted 292 Kan. 964 (2011). Chubb maintains Ontiberos is the “exact same situation” as his case. Bennett was the State's attorney in Ontiberos as well, and it appears he and defense counsel entered into an identical stipulation regarding an exhibit of “almost 3,000 pages of records relied on by doctors.” 45 Kan.App.2d at 241. Bennett used documents from this exhibit during his cross-examination of the defense witnesses, which happened to include Dr. Barnett. The Ontiberos opinion does not mention whether defense counsel used the exhibit during cross-examination of the State's expert witness, as Chubb's counsel did in the present case. But the factual background of Ontiberos is similar to the facts in the present case.
Of note, Ontiberos finds an exception to the contemporaneous objection requirement of K.S.A. 60–404 in In re Care & Treatment of Foster, 280 Kan. 845, 127 P.3d 277 (2006). 45 Kan.App.2d at 248. But in Foster our Supreme Court considered an evidentiary issue for the first time on appeal after ruling that misconduct by the State's attorney in the “opening statement” was itself “sufficient to require reversal.” 280 Kan. at 857. Our Supreme Court clarified that it “need not ... decide whether the unobjected-to evidence ... resulted in a denial of fundamental rights.” 280 Kan. at 857. The Supreme Court considered the evidentiary issue only because the question might “arise during the retrial.” 280 Kan. at 857.
We do not agree with Ontiberos when it maintains “nothing in the language used in Foster indicates the Supreme Court wanted to limit its ruling to impermissible opening remarks” of counsel. 45 Kan.App.2d at 249. We believe the language used in Foster clearly showed this intent. We also do not agree with the citation in Ontiberos to In re Care & Treatment of Ward, 35 Kan.App.2d 356, 374–75, 131 P.3d 540,rev. denied 282 Kan. 789 (2006), where this court, like our Supreme Court in Foster, ruled on the State's attorney's alleged misconduct during statements to the jury, not during the admission of evidence. 45 Kan.App.2d at 248.
The Ontiberos opinion further states the “standards” from King do not apply in a sexually violent predator proceeding because King was a criminal case, not a sexually violent predator case. 45 Kan.App.2d at 248. But K.S.A. 60–404, the basis for the holding in King, is not a criminal statute, it is a statute found in the Code of Civil Procedure. And even if Kings application of that statute were limited to criminal cases, Ontiberos assumes respondents in sexually violent predator proceedings are afforded more protection than criminal defendants. At least with regard to the contemporaneous objection rule, we do not agree. See Ward, 35 Kan.App.2d at 364–65, 374–75.
Because Chubb did not contemporaneously object to the use made of Exhibit 1A by the State's attorney in the present case, the issue was not preserved for appeal. We decline to consider it.
Ineffective Assistance of Counsel
Finally, for the first time on appeal, Chubb contends his counsel was ineffective. “Ordinarily, an ineffective assistance of counsel claim is not suitable for resolution on direct appeal.” State v. Levy, 292 Kan. 379, Syl. ¶ 4, 253 P.3d 341 (2011). Chubb maintains, however, the record is sufficient to decide this issue for the first time on direct appeal.
When the respondent in Ontiberos raised ineffective assistance “at the start of th[e] appeal,” this court remanded for an evidentiary hearing under State v. Van Cleave, 239 Kan. 117, 119–20, 716 P.2d 580 (1986). 45 Kan.App.2d at 239. However, Chubb has not moved for a remand to have the district court conduct a Van Cleave hearing, or shown that his appellate counsel conducted the “independent inquiry and investigation apart from reading the record” which might support such a remand. See Van Cleave, 239 Kan. at 120–21.
While a fair reading of the stipulation and defense counsel's lack of objections could result in the conclusion that these were parts of a trial strategy, “any determination that defense counsel's actions were a part of his trial strategy would be pure speculation without defense counsel's testimony.” LaPointe v. State, 42 Kan.App.2d 522, 544–45, 214 P.3d 684 (2009), rev. denied 290 Kan. 1094 (2010). Accordingly, the record is insufficient for us to review Chubb's claim that his counsel was ineffective. We decline to address the merits.
Affirmed.