Opinion
No. 109,674.
2014-12-5
STATE of Kansas, Appellee, v. Teill REYNOLDS, Appellant.
Appeal from Wyandotte District Court; Michael Grosko, Judge. Affirmed in part and dismissed in part.Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Michael Grosko, Judge. Affirmed in part and dismissed in part.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Teill Reynolds appeals from his convictions by a jury of two counts of rape of a child under 14 years of age and one count of battery. For the reasons stated below, we affirm in part and dismiss in part.
Facts
On the morning of May 18, 2011, T.R., Reynolds' 13–year–old daughter, contacted her aunt, Teah Reynolds (Teah), with a friend's cell phone while on a school bus. After corresponding via text message, T.R. called Teah and said she really needed to talk but could not talk over the phone because there were people around. After a brief conversation, Teah went to T.R.'s school to see her. Teah ultimately was not allowed to see T.R., however, because Teah was not on the approved list of visitors. Knowing that her aunt may not have been on the approved list, T.R. agreed to meet Teah in front of the school after school let out. But when Teah returned at the end of the school day, T.R. was not in the front of the school. Teah called the number from which T.R. had called earlier in the day and T.R. answered. T.R. said she was on the bus and was scared.
Teah met T.R. at her bus stop. Teah noticed that T.R. was walking funny. T.R. got into Teah's car, started crying, and told Teah that Reynolds had inserted a flashlight into her vagina the night before. She also told Teah that, on a previous occasion, he had allowed another person to perform oral sex on her and fondle her. Later, Teah, Teah's mother, T.R., and T.R.'s sister went to the police station to file a report. T.R. spoke to a police officer and was examined at Children's Mercy Hospital.
Reynolds was placed under arrest after he arrived at the police station where T.R. made her report. On May 20, 2011, Detective John Hudson picked Reynolds up from the jail, transported him to the detective bureau, and asked Reynolds to make a statement. Initially, Reynolds denied both allegations made by T.R. At some point, Captain Greg Lawson began assisting with the interrogation and Reynolds gave a statement. During that recorded statement, Reynolds made what the district court described as “some inculpatory statements.”
Reynolds was charged with one count of aggravated indecent liberties with a child and two counts of rape. The aggravated incident liberties charge and one of the rape charges were alleged to have occurred on March 15, 2011. The other count of rape was alleged to have occurred on May 17, 2011. At the preliminary hearing on August 23, 2011, T.R. testified that she was certain the first incident occurred on March 15, 2011. On October 19, 2011, the State filed an amended information charging Reynolds with two counts of rape and one count of battery. This time, however, one of the rapes was alleged to have occurred on November 7, 2010, and one on May 17, 2011.
Prior to trial, the State made a motion for a court order allowing it to introduce Reynolds' police statement at trial. A hearing under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), was held on October 5, 2011, to determine the voluntariness and thus admissibility of Reynolds' statement. Detective Hudson testified at the hearing and provided the following information. Hudson read Reynolds his Miranda rights prior to interrogating him. Hudson then read a waiver of rights form to Reynolds and had Reynolds place his initials beside each right to signify that he understood those rights. Hudson made no threats to Reynolds during this process. Reynolds voluntarily signed the waiver of rights form. Later, Hudson asked Reynolds if he would take a CVSA, a type of lie detector test. Reynolds agreed, and the CVSA was conducted at the internal affairs unit.
On cross-examination, Detective Hudson testified he had spent about 3 hours with Reynolds at the detective bureau but only talked about the case for about 1 1/2 hours. At about 1 or 1:30 p.m., they left to go to the internal affairs unit in a different building because that was where the necessary CVSA equipment was located. Captain Lawson performed the CVSA. During the CVSA, Lawson was the only person in the room with Reynolds. Hudson was outside the room and testified that he could hear everything Lawson said but could not hear everything Reynolds said. Hudson began preparing to record Reynolds' statement at 4:45 p.m. Prior to recording the statement, Hudson went over the waiver of rights form with Reynolds again. After recording the statement, Hudson took Reynolds back to jail.
Reynolds testified to a completely different version of events. Reynolds said that when Detective Hudson picked him up from the jail, Reynolds asked for an attorney, whom he claimed already had been retained by him in an unrelated criminal matter. Reynolds testified that Hudson said he would call the attorney, but to Reynolds' knowledge, he never did. Reynolds told Hudson a total of three or four times before and during the time he was at the detective bureau that he did not want to proceed without his attorney. Reynolds also denied that he spoke to Hudson about a lie detector test. Reynolds claimed that he was threatened before giving his recorded statement. Reynolds noted that he made several references to the threats made against him during the recorded statement but that the recording was turned off and on many times throughout the day.
After hearing the evidence and arguments by both parties, the district court found Reynolds' statement was freely and voluntarily given; therefore, it ruled the statement would be admissible at trial.
Before trial, the State made an oral motion in limine to exclude T.R.'s school disciplinary records, which Reynolds intended to introduce into evidence. The State argued the records had no probative value and were not relevant. Reynolds' appointed attorney, KiAnn McBratney, argued that the records were going to be used to show that T.R. had behavioral problems, that Reynolds disciplined her for these problems, and that she fabricated the allegations because she was mad at him. The district court granted the motion and excluded the records on the basis that they contained specific instances of conduct that were inadmissible.
At trial, T.R. testified that the first sexual incident involving Reynolds occurred when she was in eighth grade. In contrast to her testimony at the preliminary hearing, she stated at trial that she could not remember the month in which the incident occurred. On the night in question, T.R., her sister, and Reynolds' girlfriend Veronica went to Riverside to get some candy. During this car trip, Veronica was pulled over for having a broken taillight and was arrested. Reynolds and a friend of his picked up T.R. and her sister. Reynolds' friend dropped the three of them off at their house and left. T.R. kept Veronica's purse and cell phone and gave them to Reynolds after arriving home. Later, a text was delivered to Veronica's phone asking if T.R. was up. T.R. stated that she did not know the name of the person the text came from but that it was somebody Veronica was communicating with. T.R. stated she knew it was not her boyfriend, whom she had texted with the phone earlier that day.
T.R. testified that sometime after she had fallen asleep in her bed, Reynolds woke her up. Reynolds and T.R. went into Reynolds' room. T.R. said that Reynolds confronted her about the identity of the person who had sent the text to Veronica's phone. T.R. told him that she did not know. She testified that Reynolds then told her that he had a couple people lined up for her. Thereafter, Reynolds made her take off her clothes and lie down on his bed. Reynolds then put a hat over her head. At this point, T.R. said she heard a knock at the front door. She heard Reynolds and another person come in the room and then heard the door shut as Reynolds left the room. After Reynolds left, the person in the room licked her vagina and then stuck his finger in her vagina. This went on for about 20 to 30 seconds. This person did not say anything to her. T.R. then stated Reynolds came in the room and turned on some music. T.R. testified that she was crying and apologized for not telling Reynolds that Veronica was cheating on him. The other man left after Reynolds said they would have to do this another time. T.R. said she told her sister about the incident after it happened, but her sister did not believe her. T.R. testified that she was too scared to tell anyone in a position of authority about it.
T.R. next testified about the events of May 17, 2011. On that night, after T.R. went to bed, Veronica and Reynolds had an argument and Veronica left. After Veronica left, Reynolds came into T.R.'s room, woke her up, and told her to go into the living room. Once in the living room, Reynolds told T.R. that she had been lying and acting up. Reynolds then demanded T.R. take her clothes off. After she did what Reynolds said, he asked her if she knew how to “strip pole dance.” Reynolds told T.R. to lie down on the couch, which she did. He then retrieved a flashlight from his bedroom, handed it to T.R., and told her to “stick this up your coochie.” T.R. attempted to comply, but it would not fit. Reynolds then put some lotion on the handle of the flashlight and stuck it inside T.R.'s vagina. Sometime before putting the lotion on the flashlight, Reynolds also told T.R. to “suck on [the flashlight] like it was a dick.”
McBratney did not cross-examine T.R. However, she did cross-examine T.R.'s aunt, Teah, about why T.R. initially reported that the date of the first alleged incident was March 15, 2011, and then changed the date to November 7, 2010. Teah confirmed that when she and T.R. went to the police station to report the crime, the first event was said to have occurred on March 15, 2011. Teah stated that T.R. could not give specific dates, so she and the police officer asked T.R. questions in an attempt to determine the date. Teah said T.R was able to tell them that it was cold outside, that she was living on 5th Street, and that Mosetter Reynolds, Teah's sister, was in town. Teah also testified that Mosetter visited both in November 2010 and March 2011 and that Reynolds moved his family to 5th Street in November 2010.
Reynolds testified on his own behalf at trial. He denied both allegations of rape against T.R. Although Detective Hudson earlier testified that Reynolds had initialed and signed a waiver of rights form before giving a recorded statement to the police, Reynolds denied ever having done so. Reynolds testified that it was actually Hudson who initialed and signed the document. Reynolds also testified that before giving his recorded statement, he asked three times to have his attorney present. Reynolds said Hudson gave him a piece of paper to read once the recording started and told him that if he did not read it, Hudson would tell the district attorney that Reynolds was “an animal” and to sentence him to 100 years.
The jury found Reynolds guilty of two counts of rape and one count of battery. After trial, Reynolds filed an untimely motion for a new trial alleging ineffective assistance of counsel. New counsel was appointed for Reynolds. His new attorney filed another untimely motion for a new trial alleging several instances of alleged ineffective assistance of counsel. An evidentiary hearing was held, and the motion for a new trial was denied.
At sentencing, Reynolds orally moved to continue the hearing based on an alleged problem with the phones in the jail that had prevented Reynolds from contacting his character witnesses. That motion was denied. Reynolds then orally moved for a downward departure, citing his lack of significant criminal history and the fact that he was a contributing member of society prior to his arrest. This motion also was denied. Under Jessica's Law, K.S.A.2010 Supp. 21–4643(a)(1)(B), the district court ultimately sentenced Reynolds to concurrent life sentences without the possibility of parole for 25 years for his two rape convictions.
Analysis
On appeal, Reynolds raises the following six claims of error: (1) His statement to the police should not have been admitted because it was not voluntarily given, (2) the district court erred by finding that T.R.'s school records were inadmissible, (3) the State committed prosecutorial misconduct during closing argument, (4) the district court erroneously denied his motion for a new trial, (5) the district court improperly denied a motion to continue his sentencing hearing, and (6) the district court erred by denying his motion for a downward departure at sentencing. We address each claim of error in turn.
Voluntariness of Reynolds' statement to police
In his first point of error on appeal, Reynolds argues that his statement to the police was inadmissible because it was not voluntarily given and thus obtained in violation of his rights under the Fifth Amendment to the United States Constitution. However, this issue was not preserved for appellate review, and it is dismissed.
In order to preserve an evidentiary issue for appeal, a party must make a contemporaneous objection to the admission of the challenged evidence and make clear the specific ground of the objection. K.S.A. 60–404. Reynolds admits that he did not object to the admission of his statement to the police at trial. He nevertheless argues that he adequately preserved this issue for appeal because he made the State and the district court aware of his challenge to the voluntariness of his statement both before and after trial.
In support of his argument, Reynolds relies on State v. Bogguess, 293 Kan. 743, 268 P.3d 481 (2012). In Bogguess, the defendant filed a pretrial motion to suppress challenging the voluntariness of certain statements, which was denied. Later, the defendant chose to waive his right to a jury trial and agreed to a bench trial on stipulated evidence. Prior to trial, counsel for the defendant informed the district court that he wished to retain his appeal rights. The Kansas Supreme Court noted that previous decisions indicated that the contemporaneous objection rule is relaxed during a bench trial. It also pointed out that when a trial is conducted solely on stipulated facts, there is no opportunity to make a contemporaneous objection to the admission of evidence at trial. Because Bogguess' bench trial was conducted on stipulated facts in front of the same judge that had ruled on the motion to suppress and all the parties were aware of Bogguess' challenge to the admission of his statements, the Kansas Supreme Court found that a contemporaneous objection was not necessary to consider the merits of his challenge on appeal. 293 Kan. at 747.
The facts of this case are wholly distinguishable from Bogguess . Reynolds, unlike the defendant in Bogguess, was tried in front of a jury and was not tried solely on stipulated facts. In fact, McBratney specifically stated to the court during a status conference held after the Jackson v. Denno hearing that Reynolds was not stipulating to the voluntariness of his statements. This indicates that Reynolds was prepared to object to the admission of his statements at trial.
Reynolds cites several instances in the record where he or his attorney suggested that the police statement was involuntary. But K .S.A. 60–404 requires a timely and specific objection to the admission of evidence. The Kansas Supreme Court has held that, under K.S.A. 60–404, a pretrial objection must be renewed during trial or preserved through a standing objection. State v. Holman, 295 Kan. 116, 127, 284 P.3d 251 (2012). Here, the State admitted a recording of Reynolds' statements to the police during the testimony of Detective Hudson at trial. When the State moved to admit the recording into evidence, the district court specifically addressed McBratney and asked if she had any objection to its admission. She responded, “No objections, no.”
Reynolds not only had the opportunity but the burden to object to the admission of any evidence he believed to be inadmissible and wished to challenge on appeal. He did not do so. As a result, Reynolds failed to properly preserve this issue for appeal, and it is dismissed.
T.R.'s school records
In his second point of error on appeal, Reynolds argues the district court improperly excluded T.R.'s school disciplinary record and that, in doing so, the district court violated his fundamental right to present his defense. Reynolds wanted to introduce the school records, which described T.R.'s poor behavior at school, in order to support his defense theory; specifically, that T.R. fabricated her allegations because she was upset with Reynolds for disciplining her. Before addressing the merits of Reynolds' argument, we again must address whether the argument was properly preserved for appeal. The admissibility of T.R.'s school records was challenged by the State before trial in the context of a motion in limine. After hearing arguments from both parties, the district court granted the motion, ruling that the evidence was inadmissible.
An order resulting from a motion in limine is a temporary protective order that is subject to change during the trial. State v. Breedlove, 295 Kan. 481, 494, 286 P.3d 1123 (2012). Reynolds never moved to reconsider the order in limine or otherwise attempted to proffer the evidence at trial. The only other time Reynolds raised this issue below was in a posttrial motion for a new trial. To predicate error on a decision by the court granting or denying a motion in limine, the party claiming error must again present the material or proffer the evidence during trial on a motion to reconsider. Brunett v. Albrecht, 248 Kan. 634, 640, 810 P.2d 276 (1991); see also State v. Beard, 273 Kan 789, 808, 46 P.3d 1185 (2002) (“Because Beard did not move to reconsider or make a proffer during trial, he has failed to preserve the issue of the propriety of the motion in limine for appeal.”). Given Reynolds failed to do so, the issue was not properly preserved for appeal, and it is dismissed.
Prosecutorial misconduct
In his third point of error on appeal, Reynolds contends that his constitutional right to a fair trial was violated when the prosecutor attempted to shift the burden of proof to Reynolds during closing argument.
The defense did not object to the statements at issue during closing argument. However, a claim of prosecutorial misconduct based on comments made during closing argument may be reviewed on appeal even when a contemporaneous objection was not made at the district court level. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012). Appellate review of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. If the prosecutor's comments were outside this latitude, the appellate court must determine whether the comments constituted plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
Reynolds challenges the following statement by the prosecutor: “There has not been one shred of evidence put in front of you that [T.R.] has a motive to make this up.” Reynolds argues that, in making this statement, the prosecutor improperly implied Reynolds had an obligation to present evidence that T.R. had fabricated her allegations.
Attempting to shift the burden of proof to a criminal defendant to produce evidence of his or her innocence constitutes prosecutorial misconduct. State v. Tosh, 278 Kan. 83, 92–93, 91 P.3d 1204 (2004). However, the prosecutor's statement must be considered in the context of the entire closing argument and in conjunction with the instructions given at trial. Burnett, 293 Kan. at 851. Immediately after stating that no evidence had been put in front of the jury indicating that T.R. had made up her allegations, the prosecutor went on to say:
“There is no benefit to this child. This child has been removed from her home, she's in foster care, she had significant physical injuries as a result of the final incident, she had to undergo some medical treatment for a short time to heal those injuries. There's just been absolutely no benefit to her. She's been drug through a system, had to be interviewed at Sunflower House, testified at [a] preliminary hearing and now at a jury trial in front of strangers talking about her private parts, being violated by her own father. There is no benefit to [T.R.] to come in here and tell you this.”
Later, the prosecutor said, “There is nothing—nothing that has been presented to you that would cause you not to believe [T.R.] You think she just intentionally tore up her genitals that night just to get her father in trouble? Does that make sense to you?”
Prior to closing argument, the jury was instructed that the burden was on the State to prove the defendant guilty and that Reynolds was not required to prove he was not guilty. “[I]f the jury has been instructed that the State bears the burden of proof, a prosecutor may argue inferences based on a lack of evidence, so long as the remarks do not indirectly command an adverse inference regarding the defendant's failure to testify.” State v. Bedell, 36 Kan.App.2d 870, 875–76, 146 P.3d 1096 (2006), rev. denied 283 Kan. 932 (2007), overruled in part on other grounds by State v. Phillips, 289 Kan. 28, 210 P.3d 93 (2009). Therefore, the controlling question in this case is whether the prosecutor was permissibly arguing inferences based on a lack of evidence or improperly attempting to shift the burden of proof from the State to Reynolds. The cases below provide guidance in answering this question.
In State v. Burden, 30 Kan.App.2d 690, 691, 46 P.3d 570 (2002), rev'd on other grounds by 275 Kan. 934, 69 P.3d 1120 (2003), the defendant was charged with aggravated kidnapping, rape, aggravated criminal sodomy, and criminal threat. The victim, C.G., reported to law enforcement that her boyfriend, Burden, had beaten and threatened to kill her and that he had penetrated her vagina and anus with his fingers. A sexual assault exam revealed a red mark on C.G.'s cervix and redness on her labia and outer vaginal area. At trial, C.G. recanted her original statements to the police and denied everything. Burden testified that he had slapped C.G. but denied all other allegations against him. During closing argument, the prosecutor said, “ ‘[T]he most overwhelming thing that the defense cannot overcome in this case is the physical evidence that corroborates [C.G.'s] initial statements.’ “ 30 Kan.App.2d at 696. A panel of this court noted that while the comment was “inartful,” the jury was properly instructed on the burden of proof in a criminal trial. 30 Kan.App.2d at 703. The panel ultimately held that the prosecutor was not attempting to shift the burden of proof to the defendant and the comment was within the considerable latitude provided to prosecutors during closing argument. 30 Kan.App.2d at 703.
In Tosh, the defendant was charged and convicted of rape, aggravated sexual battery, and aggravated kidnapping. Tosh initially confessed to some of his actions in a police interview but testified at trial that he did not remember the interview and, at the time of the alleged crimes, he was taking 180 to 280 tablets of over-the-counter ephedrine every day. During closing argument, the prosecutor asked, “ “ ‘[I]s there any evidence that it didn't happen? Is there any evidence that the things she told you didn't happen?’ “ “ 278 Kan. at 92. The Kansas Supreme Court found that this comment constituted prosecutorial misconduct because it was an improper attempt to shift the burden of proof to the defendant. 278 Kan. at 92.
The Kansas Supreme Court later cited the holding in Burden to find that a prosecutor's statement that a defendant had “ ‘two huge obstacles he [or she] has to overcome to present any kind of credible defense” ‘ was not an improper attempt to shift the burden of proof to the defendant. State v. Stone, 291 Kan. 13, 16, 18–19, 237 P.3d 1229 (2010). It found the comments were analogous to those made in Burden and unlike the impermissible comments in Tosh. Stone, 291 Kan. at 18–19.
Like those in Stone and Burden, the comments here were within the wide latitude given to prosecutors during closing argument. First, the jury was properly instructed about the burden of proof in a criminal trial. Second, Reynolds testified at trial, meaning the prosecutor's statements could not have invited an adverse inference from Reynolds' failure to do so. To the contrary, the statement that Reynolds now challenges focused the jury's attention on witness credibility by arguing that T.R. lacked a motive to fabricate her allegations. After making the challenged statement, the prosecutor provided several reasons the jury should believe T.R. Taken in context, we find the prosecutor was permissibly arguing inferences based on a lack of evidence and was not improperly attempting to shift the burden of proof from the State to Reynolds. Because we have found the prosecutor's comments were within the wide latitude given to prosecutors during closing argument, there is no need to discuss the second step of the prosecutorial misconduct analysis.
Reynolds' motion for a new trial
In his fourth point of error on appeal, Reynolds asserts the district court erred by denying his motion for a new trial. In support of his claim of error, Reynolds argues he was entitled to a new trial because his attorney's performance at trial was deficient in five different areas.
Although the issue was not raised by either party, we will first examine whether this court has jurisdiction to consider Reynolds' claims of ineffective assistance of counsel. Whether jurisdiction exists is a question of law subject to unlimited review. State v. Burnett, 297 Kan. 447, 451, 301 P.3d 698 (2013). An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, the appellate court must dismiss the appeal. Ryser v. Kansas Bd. of Healing Arts, 295 Kan. 452, 456, 284 P.3d 337 (2012). The right to appeal is entirely statutory, and the limits of appellate jurisdiction are imposed by the legislature. State v. Berreth, 294 Kan. 98, 110, 273 P.3d 752 (2012).
Under K.S.A.2013 Supp. 22–3501(1), a criminal defendant has 14 days after the verdict to file a motion for new trial when that motion is not based on newly discovered evidence. Within that 14–day period, a district court may extend the deadline. Otherwise, the deadline is not discretionary. See State v. Holt, 298 Kan. 469, 479, 313 P.3d 826 (2013). In this case, the jury rendered its verdict on November 18, 2011. Four days later, McBratney filed a motion for new trial on Reynolds' behalf. On November 28, 2011, McBratney filed another motion for new trial on Reynolds' behalf. In support of the motion, McBratney attached a handwritten letter drafted by Reynolds. Although they were both timely filed, neither of these two motions raised an issue related to McBratney's performance as trial counsel.
On December 20, 2011, Reynolds filed a pro se motion for a new trial claiming, among other things, ineffective assistance of trial counsel. On January 10, 2012, the district court appointed new counsel for Reynolds. On May 22, 2012, Reynolds filed a pro se motion entitled “Ineffective Assistance of Counsel.” On August 8, 2012, Reynolds' newly appointed attorney filed another motion for a new trial, which focused entirely on claims of ineffective assistance of counsel.
Given the jury rendered its verdict on November 18, 2011, the three motions for a new trial dated December 20, 2011, May 22, 2012, and August 8, 2012, were all filed well after the 14–day–statutory time limit. There is nothing in the record to suggest that Reynolds timely sought or received an extension of time to file these motions for a new trial. Notably, however, the district court conducted a full evidentiary hearing and ruled on the particular claims of ineffective assistance of counsel raised by Reynolds in the untimely motions. As explained more fully below, the court's actions in this regard are significant for purposes of appellate jurisdiction.
Over the years, our Supreme Court consistently has held that an untimely motion for new trial based on ineffective assistance of counsel is a collateral attack on a conviction that is to be considered and reviewed as a motion for postconviction relief. See State v. Sharkey, 299 Kan. 87, 94, 322 P.3d 325 (2014) (citing State v. Kirby, 272 Kan. 1170, 1192–96, 39 P.3d 1 [2002]; State v. Kingsley, 252 Kan. 761, 766–67, 851 P.2d 370 [1993] ). In Sharkey, the court explained that a timely motion for a new trial is a critical stage of the criminal proceeding under K.S.A. 22–4503 (requiring counsel), but an untimely motion is considered under K.S.A. 22–4506, which applies to collateral attacks on a conviction. 299 Kan. at 95–96.
Based on Sharkey, we conclude an untimely motion for a new trial based on ineffective assistance of counsel may be construed as a motion for postconviction relief. In such cases, the district court has jurisdiction over the merits of the claim, and an appellate court likewise has jurisdiction on appeal. Because the district court appointed new counsel to Reynolds and held a full evidentiary hearing on the stated claims that his trial counsel was ineffective, the record is sufficiently complete and this court may appropriately address those claims on appeal that were specifically considered by the trial court. See State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000) (court can consider ineffective assistance of counsel claim for first time on appeal where appellate record is sufficient to decide issue in context of direct appeal). In sum then, and to the extent Reynolds' ineffective assistance of counsel arguments were raised below, this court has jurisdiction to address the merits of those claims.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. Appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013). Substantial evidence is such evidence that a reasonable person might accept as sufficient to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). “To support a claim of ineffective assistance of counsel based on counsel's performance, a defendant must demonstrate that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial.” Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012). If counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, counsel's performance was deficient. Cheatham, 296 Kan. at 431.
On appeal, Reynolds alleges McBratney's performance was deficient because: (a) She did not prepare Reynolds to testify, nor did she inform him that his decision not to testify could not be held against him, (b) she did not call Mosetter Reynolds to testify, (c) she did not conduct any cross-examination of T.R., (d) she did not challenge the credibility of Teah Reynolds, and (e) she did not appropriately argue that Reynolds' statements to the police were involuntary. Each of these arguments will be addressed in turn below by focusing on the first prong of the test for ineffective assistance of counsel and then, if necessary, by addressing the second prong.
In order to establish deficient performance as required in the first step of an ineffective assistance of counsel claim, Reynolds must demonstrate that McBratney's representation failed to meet an objective standard of reasonableness considering the entire circumstances attendant to the case. This court indulges in a strong presumption that counsel's conduct fell within the wide range of reasonable assistance. Cheatham, 296 Kan. at 431. Further, “[j]udicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). (a) Trial Preparation
Reynolds claims McBratney's performance was deficient because she did not prepare him to testify and she did not inform him that the jury could not use his silence against him when reaching a verdict. At the hearing on Reynolds' posttrial motions, McBratney testified she discussed the issue of his testifying with Reynolds during a March 2011 jail visit. Reynolds correctly asserts that this testimony was suspect because Reynolds was not charged until May 2011. What led to this apparent confusion is unclear. However, Reynolds' attempt to attack this inconsistency ignores the remainder of McBratney's testimony, during which she clearly asserted that she discussed with Reynolds several times whether he should testify and that she specifically informed Reynolds of his right not to testify during a November 9, 2011, meeting. Both parties asked that McBratney's notes from the November 2011 meeting be admitted into evidence. The notes indicate that she and Reynolds discussed the topic of whether to testify and that she answered all of his questions. These notes were signed by Reynolds.
McBratney also was asked during the hearing whether she informed Reynolds that his decision not to testify could not be held against him. McBratney responded, “ ‘Well, I did. And also the jury was instructed to that effect.’ “ On appeal, Reynolds takes issue with this testimony because no such instruction was provided to the jury at the close of evidence. The State suggests that McBratney was referring to comments made during voir dire rather than closing argument. Although we find nothing in the record to clarify her remark regarding the alleged jury instruction, this portion of McBratney's testimony is irrelevant to the issue on appeal. Reynolds claims she never informed him that his silence at trial could not be used against him to reach a verdict. But in the very answer Reynolds attempts to use against her, McBratney plainly testified that she did.
Reynolds also argues McBratney failed to prepare him for trial in other ways. He testified that she only called him once, visited him twice in jail, and never showed him any discovery. McBratney testified that she visited Reynolds three other times and showed him every piece of paper discovery. McBratney specifically testified that she reviewed written summaries of Reynolds' recorded statement to the police and T.R.'s recorded Sunflower House interview, but she did not have Reynolds listen to the recordings.
Finding McBratney's testimony credible, the district court concluded that McBratney did prepare Reynolds to testify and discussed with him his right not to testify. Although there was clearly conflicting testimony at the hearing, substantial competent evidence in the form of McBratney's testimony and her notes from the November 2011 meeting supports the district court's findings. Because there was evidence McBratney adequately prepared Reynolds for trial and discussed with him his rights as they relate to testifying, we find no deficiency in McBratney's performance related to trial preparation. (b) Failure to call Mossetter Reynolds as a witness
Reynolds also claims that McBratney's failure to call Teah's sister, Mossetter Reynolds, to testify constituted ineffective assistance of counsel. McBratney asserted at the evidentiary hearing that she did not call Mosetter for the following reasons: (1) She lived in Texas and outside Kansas courts' subpoena power, (2) her anticipated testimony that T.R. was with her on March 15, 2011, no longer supported Reynolds' alibi after the State amended its complaint and alleged the first offense occurred in November 2010, and (3) she indicated to McBratney that she would refuse to testify on Reynolds' behalf. In his brief, Reynolds correctly notes that Mosetter was present at the trial, so she was available to be called as a witness; thus, McBratney's concerns about Kansas' subpoena power clearly played no part in her ultimate decision not to call Mosetter as a witness.
Determining which witnesses should testify at trial is a strategic decision within the exclusive province of an attorney after consultation with his or her client. Bledsoe, 283 Kan. at 92.
“ ‘Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ [Citations omitted.] The burden is on a defendant to demonstrate that the alleged deficiencies were not the result of strategy. [Citations omitted.]” State v. Adams, 292 Kan. 151, 167–68, 254 P.3d 515 (2011).
Reynolds does not assert that McBratney's decision to forgo calling Mosetter as a witness was a strategic choice made after an inadequate investigation into the law or the facts relevant to Mosetter's possible testimony. Rather, he asks this court to pass judgment on McBratney's trial strategy. Although McBratney identified in pretrial pleadings that Mosetter was a witness she planned to call during her case-in-chief, the fact she did not actually call Mosetter to testify does not, in and of itself, indicate the decision was not strategic or that it was unreasonable, especially since Mosetter told McBratney she would refuse to testify on Reynolds' behalf.
In short, Reynolds' arguments do not establish that McBratney's decision not to call Mosetter was anything other than a strategic trial decision made after a full investigation of the relevant law and facts. Therefore, we find no deficiency in McBratney's performance related to her decision not to call Mosetter as a witness at trial. (c) Failure to cross-examine T.R.
Next, Reynolds argues that McBratney's decision not to cross-examine T.R. fell below an objective standard of reasonableness. Whether to conduct cross-examination is a strategic trial decision over which an attorney has exclusive control after consulting with his or her client. Cheatham, 296 Kan. at 445.
Again, Reynolds does not argue on appeal that McBratney inadequately investigated the facts or law surrounding her decision not to cross-examine T.R. Instead, Reynolds asserts McBratney should have attacked T.R.'s credibility based on T.R.'s statements at the preliminary hearing that she was first raped on March 15, 2011. However, T.R. did not provide a particular date of the first offense in her direct testimony at trial. Further, McBratney explained that she chose not to cross-examine T.R. because her allegations were supported by medical and photographic evidence and, in McBratney's opinion, pressing T.R. could have inadvertently turned the jury against Reynolds. McBratney also stated that it is possible to attack the credibility of a victim's statements through other witnesses at trial. McBratney cross-examined Teah extensively about the explanation she provided with regard to the process she and T.R. initially went through to determine that the first offense occurred on March 15, 2011.
The district court found McBratney's decision not to cross-examine T.R. was trial strategy and thus was virtually unchallengeable in terms of proving deficient performance. Its finding is supported by substantial competent evidence. Therefore, we find no deficiency in McBratney's performance in deciding not to cross-examine T.R. (d) Cross-examination of Teah Reynolds
Reynolds claims the manner in which McBratney cross-examined Teah was deficient and unreasonable. Whether or how to conduct cross-examination is a strategic trial decision over which an attorney has exclusive control after consulting with his or her client. Cheatham, 296 Kan. at 445.
In support of his claim here, Reynolds contends McBratney's decision to pass up the opportunity to ask Teah about a past physical altercation between Teah and Reynolds was unreasonable. Reynolds believes Teah did not testify truthfully and that the bad blood between Teah and Reynolds was relevant to Teah's motive to fabricate her testimony. Although McBratney was aware that Reynolds believed Teah's animosity toward him was the reason she supported T.R.'s version of the facts, McBratney specifically testified at the hearing that the decision to steer clear of the sibling animosity issue was trial strategy after thorough considering the relevant facts and the possible consequences. This court's review of McBratney's trial strategy is highly deferential. Surmising with the benefit of hindsight that another attorney may have acted differently is not, itself, sufficient to establish a claim of ineffective assistance of counsel. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). McBratney had exclusive control over the manner in which she chose to cross-examine Teah, and there is nothing in the record to suggest McBratney failed to fully investigate the facts and law before doing so. Accordingly, Reynolds' decision not to cross-examine Teah comes within the required objective standard of reasonableness. (e) Voluntariness of Reynolds' statement
In the brief he filed on appeal, Reynolds contends McBratney's performance was deficient because she failed to renew her objection to the voluntariness of Reynolds' statement to the police when the statement was introduced into evidence at trial. However, as Reynolds admits, this particular allegation of ineffective assistance of counsel was not raised before the district court.
Generally, issues not raised before the district court will not be considered on appeal. State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011). There are three exceptions to this general rule: (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; or (3) the trial court's decision was correct, but it relied on the wrong ground or assigned a wrong reason for its decision. See State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012). Reynolds argues that the first and second exceptions apply to this issue.
However, beyond the general rules stated above, an ineffective assistance of counsel claim will not typically be considered for the first time on direct appeal. State v. Levy, 292 Kan. 379, 388, 253 P.3d 341 (2011). The Kansas Supreme Court has recognized that the district court is best equipped to analyze these claims because it observed counsel's performance and competence first-hand and can apply its knowledge to the facts of the case. 292 Kan. at 388–89. There are circumstances when no evidentiary record needs to be established because the merit or lack of merit of a claim of ineffective assistance of counsel is obvious, but these circumstances are extremely rare. State v. Williams, 299 Kan. 1039, 1048, 329 P.3d 420 (2014).
Here, Reynolds was appointed new counsel and given a full evidentiary hearing to address his claims of ineffective assistance of counsel but never challenged McBratney's failure to object to the admission of his statement to the police. Often, the questions relevant to a claim of ineffective assistance of counsel “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.” Levy, 292 Kan. at 389. Reynolds notes that McBratney's failure to object at trial to the admission of his statement to the police is undisputed. While this assertion is clearly accurate, there is no evidence in the record to establish—one way or the other—whether this was a strategic decision on McBratney's part or whether McBratney had discussed this particular course of action with Reynolds prior to trial. These questions would appear to be particularly relevant to this case given that the statement was determined to be admissible after a pretrial Jackson v. Denno hearing. Without an adequate record, this court cannot consider the merits of Reynolds' ineffective assistance of counsel claim as it relates to this issue and, therefore, this particular issue was not preserved, and it is dismissed. See Williams, 299 Kan. at 1048–49 (declining to consider ineffective assistance of counsel claim for first time on direct appeal).
Based on the discussion above, we find no evidence of deficient performance by trial counsel in this matter. In the absence of deficient performance, it is unnecessary to address the prejudice prong of Reynolds' ineffective assistance of counsel claim. Accordingly, we find no error in the district court's decision to deny Reynolds' motion for new trial.
Motion to continue
Reynolds argues the district court improperly denied his motion to continue sentencing and this impropriety prevented him from calling witnesses to testify on his behalf. “[A] defendant has no greater rights to a post-trial motion for a continuance than would be afforded before trial or during trial.” State v. Borders, 255 Kan. 871, 875, 879 P.2d 620 (1994). A district court may grant a continuance to a criminal defendant for good cause shown. K.S.A. 22–3401. The district court's decision to deny a motion for continuance will not be disturbed on appeal absent a showing of abuse of discretion. State v. Beaman, 295 Kan. 853, 862–63, 286 P.3d 876 (2012). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). A decision is arbitrary, fanciful, or unreasonable when no reasonable person would have taken the view of the district court State v. Florentin, 297 Kan. 594, 599, 303 P.3d 263 (2013).
Reynolds, through his attorney, orally requested a continuance on the day of sentencing. Reynolds made this request because he believed he could call several character witnesses to speak to his character, good judgment, and good standing in the community. In explaining why he had not arranged for these witnesses to appear in advance, Reynolds claimed that there had been problems with outgoing phone calls from the jail and, but for his lack of communication with the outside world, those witnesses could have been present at his sentencing hearing. The district court judge noted that sentencing had been scheduled 56 days in advance and that Reynolds had failed to provide a reason to believe that there had been problems with the phones at the jail for such an extended period of time. We find a reasonable person could agree with the judge's position.
Reynolds also argues that the court's decision to deny his request for continuance deprived him of his statutory right to present evidence in mitigation of punishment under K.S.A. 22–3424(e). However, the district court's response to his motion clearly indicates that it did not find his reason for requesting the continuance credible. Again, given the substantial amount of time between the day the sentencing hearing was scheduled and the day it occurred, the district court's decision was not arbitrary, fanciful, unreasonable, or erroneous; therefore, the court did not abuse its discretion in denying Reynolds' motion to continue.
Motion for a downward departure
Reynolds argues there were substantial and compelling factors justifying a departure sentence and therefore the district court erred by denying his motion for a downward departure sentence. A district court's decision to deny a departure motion is reviewed on an abuse of discretion standard. State v. Baptist, 294 Kan. 728, 735, 280 P.3d 210 (2012).
In exercising its discretion regarding whether to depart from a Jessica's Law sentence, “a district court first reviews the mitigating circumstances and then weighs those circumstances against any aggravating circumstances, ultimately determining whether substantial and compelling reasons warrant a departure.” State v.. Remmert, 298 Kan. 621, 630, 316 P.3d 154 (2014); see K.S.A.2010 Supp. 21–4643(d). Reynolds argues that his lack of significant criminal history and his work history were substantial and compelling reasons to depart from his Jessica's Law concurrent hard 25 life sentences. These mitigating circumstances were argued to the district court. Yet, the district court found that, given the nature of the offenses, no substantial and compelling reasons existed to depart from the mandatory minimum sentences.
In reviewing the district court's decision, this court must affirm the denial of the departure motion if it finds that even one reasonable person would agree with the district court judge. Florentin, 297 Kan. at 602. Here, given the seriousness of Reynolds' crimes, a reasonable person could agree that a lack of significant criminal history and a good work history did not justify departure from his Jessica's Law sentences. Accordingly, we conclude the district court did not abuse its discretion by denying Reynolds' motion for departure.
Affirmed in part and dismissed in part.