Opinion
No. 106,814.
2013-01-18
Michael CHUBB, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Jeff Goering, 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 District Court; Jeff Goering, 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 GREEN, P.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
LEBEN, J.
Michael Chubb contends his trial attorney provided inadequate representation during the trial at which Chubb was convicted of aggravated indecent liberties with a child. Chubb contends that his attorney should have presented testimony from another witness that Chubb wasn't in Kansas when the crime was committed, and that the attorney also should have used an expert witness on child-witness interview techniques.
But the district court concluded that Chubb's attorney had investigated the potential alibi witness and had reasonably concluded that his testimony wouldn't have been helpful. The court also found that the proposed expert testimony didn't substantially damage the State's case against Chubb. Evidence presented to the district court supports its factual conclusions, and we agree with its legal conclusion that the representation Chubb's trial attorney provided didn't fall below an objective standard of reasonableness. We therefore affirm the district court's judgment, which denied Chubb's posttrial habeas motion under K.S.A. 60–1507.
Factual Background
We begin with a brief summary of the facts of Chubb's case. In our 2009 opinion ordering an evidentiary hearing on Chubb's claim of inadequate representation, we reviewed the basic facts that provide background to that claim:
“Chubb was a friend of another man named Charles, who was the grandfather of T.P.D. and three other girls, L.D., R.D., and A.D. Chubb lived intermittently with Charles, and Chubb helped Charles take care of these girls when they came to visit or live with their grandfather.
“T.P.D. said that Chubb had twice touched her inappropriately while she was 6 years old. She said that one time Chubb sat down next to her on the couch while she was watching television and placed his hand on her shorts right above the crotch before then moving his hand around. Another time ... she said that Chubb came in and kissed her on the lips [while she was using the toilet]. Both times, she said that her grandfather was in the garage when these acts occurred.
“The State also presented evidence from T.P.D.'s older sisters, L.D. and R.D., that Chubb had molested them when they were between 6 and 8 years old. Chubb told an officer that he couldn't be absolutely certain that he hadn't sexually abused the children because he was using crack cocaine heavily during that time period.” Chubb v. State, Nos. 99,912, 100,069, 2009 WL 929136, at *1 (Kan.App.2009) (unpublished opinion).
We provided a more extensive summary of the facts in our 2005 opinion denying Chubb's direct appeal. See State v. Chubb, No. 91,708, 2005 WL 3289369, at *1–2 (Kan.App.2005) (unpublished opinion).
In 2009, we determined that Chubb was entitled to an evidentiary hearing on three of the bases underlying his claim that his trial attorney had provided inadequate assistance: (1) that his attorney failed to present the testimony of Chubb's brother in support of Chubb's alibi defense; (2) that his attorney failed to use an expert witness regarding child-witness-interview techniques; and (3) that his attorney failed to pursue a defense of impotence. 2009 WL 929136, at *7.
After an evidentiary hearing, the district court concluded that Chubb had failed to show that his trial attorney provided inadequate assistance. In this appeal, Chubb has not pursued the claim that his attorney should have pursued a defense of impotence. So we consider only the remaining claims—that his attorney failed to present alibi evidence and failed to use an expert witness.
The district court issued a thorough, 79–page opinion in support of its ruling. We will discuss its primary findings and some of the evidence presented on Chubb's claims as we discuss each claim.
Legal Standards
Chubb sought to set aside his conviction and obtain a new trial based on his claim that his trial attorney provided representation so ineffective that it was below constitutionally required standards. 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).
In sum, what is generally referred to as the Strickland test requires two showings—constitutionally deficient representation and prejudice to the defendant.
On appeal, where the district court has made factual findings and legal conclusions on a K.S.A. 60–1507 motion after a full evidentiary hearing, we review the factual findings to see whether substantial evidence supports them. If so, we then must determine whether the factual findings are sufficient to support the district court's legal conclusions. We must review the legal conclusions independently, without any required deference to the district court. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007).
Analysis
I. The District Court's Conclusion That Chubb Failed to Show That His Attorney Was Ineffective for Failing to Present Additional Alibi Evidence Is Supported by the Record.
At trial, Chubb contended that he couldn't have committed the offense against T.P.D. because he was staying with his brother, Alan Chubb, in Colorado at the time of the offense. Chubb contended that his trial attorney provided inadequate representation because he didn't contact Alan and didn't call Alan as a witness to support Chubb's defense.
At the posttrial evidentiary hearing, Alan testified that he wasn't contacted by Chubb's trial attorney. Alan also testified that Chubb was working for Alan in Colorado in 1999.
But the district court also heard testimony from Chubb's trial attorney, David Freund, that he had sent an email to his trial investigator asking the investigator to contact Alan. And the investigator sent Freund an email response that said that she had talked with Alan and that “he could not help [me].” The district court concluded that Alan was wrong about whether he had been contacted by the defense team and that the investigator had, in fact, contacted him.
The district court also concluded that Freund reasonably decided not to pursue Alan's testimony, based on that email and other evidence. The court noted that Alan testified that he hadn't wanted to attend Chubb's criminal trial and that he would have said so to anyone who would have asked at the time. The district court concluded: “Mr. Freund was not ineffective for failing to seek trial testimony from a reluctant witness who told the defense investigator that he could not help.”
Chubb argues on appeal that the investigator's email was admitted under a hearsay-evidence rule only as it related to Freund's understanding of the situation, not for the truth of the matter asserted ( i.e., that the investigator actually had reached Alan). Thus, Chubb argues that the district court should have accepted the uncontested testimony of Alan, who said he wasn't contacted by Chubb's defense team.
But the issue here is whether Freund did a reasonable investigation of the potential for alibi testimony from Alan. And sufficient factual findings of the district court support the conclusion that he did—even if the email is considered only as it relates to Freund's understanding and actions. There is no evidence that Freund had any reason to believe that his investigator, who worked for the public-defender's office, was sending him false information. So we have a situation in which Freund asked an investigator who regularly worked with Freund to check on Alan as a potential alibi witness, and Freund then received word back from the investigator that Alan couldn't help. The district court's legal conclusion is correct: Freund's representation did not fall below acceptable standards on this issue when he accepted the investigator's statement as true.
The district court also noted that other evidence presented at trial made the alibi defense a weak one, anyway. The record supports that conclusion too.
T.P.D. testified that she was molested while she was 6 years old, roughly the time from mid-November 1998 until mid-November 1999. While at trial she did testify on cross-examination that she had once said that one of the incidents occurred only a couple of weeks before she turned 7 (which would have been late October 1999), the time frame remained somewhat open-ended.
Most important, Chubb's claim that he had been in Denver at the relevant time periods was challenged at trial by both documents and testimony. Several documents filled out by Chubb during 1998 and 1999 showed Chubb's home address as that of T.P.D.'s grandfather, where the crimes occurred. These included documents dated August 1998, December 1998, March 1999, and June 1999. In addition, when Chubb was arrested for a DUI on November 16, 1999, booking documents listed the same home address and also a Wichita employer, not ones in Colorado.
Courts generally give wide deference to trial counsel in deciding, as a matter of trial strategy, whether to present witnesses other than the defendant at trial. State v. Lewis, 33 Kan.App.2d 634, Syl. ¶ 5, 111 P.3d 636,rev. denied 277 Kan. 924 (2003). Chubb didn't show that Freund's decision not to have Alan testify at trial fell below an objective standard of reasonableness.
Although potential testimony from Alan is the main focus of Chubb's argument, the district court also concluded that Freund did a reasonable investigation of what facts, from sources other than Alan, could have been garnered to support Chubb's alibi defense. That included contacting T.P.D.'s grandfather, who said he couldn't help in supporting Chubb's claim that he'd been living in Colorado at the time the offenses were alleged to have taken place. Once again, the district court's factual findings are supported by the evidence (here, Freund's testimony), and the district court's legal conclusion is soundly based on the record.
II. The District Court's Conclusion That Chubb Failed to Show That His Attorney Was Ineffective for Failing to Use an Expert Witness on Child–Interview Techniques Is Supported by the Record.
In our 2009 opinion, we held that Chubb should be given a chance to show that an expert in child-witness-interview techniques should have been used by Freund either to help him prepare for his cross-examination of the State's witnesses or to present information to the jury that might suggest that the interviews of T.P.D. and other victims were flawed. Since the evidence against Chubb consisted of child-witness statements and no physical evidence, we concluded that the use of an expert might have been “crucial” to his defense. 2009 WL 929136, at *3.
At the posttrial evidentiary hearing, Chubb presented testimony from a psychologist, Dr. Molly Allen. She gave background regarding how children should be interviewed when investigating abuse allegations, along with specific criticisms of the investigators' interviews of T.P.D.
The district court concluded that much of Dr. Allen's testimony would not have been admitted at trial because it wouldn't have been helpful to the jury, was mere speculation, or was misleading or inaccurate. The district court concluded that Dr. Allen could have testified generally regarding how a child witness should be interviewed but that this wouldn't have been important testimony because proper interview techniques weren't really at issue. Aside from trial testimony, the district court concluded that Freund didn't need an expert's help to prepare for the cross-examination of trial witnesses. The district court devoted more than 20 pages of its decision to its analysis of whether Freund had provided inadequate representation by failing to get an expert's assistance.
We'll start with the easiest part of the expert issue—whether Freund needed to consult an expert to prepare for his cross-examination of the State's witnesses, even if Freund didn't call an expert to testify. The district court found that Freund had adequate knowledge and skill to competently represent Chubb without the help of an expert. This finding is supported by the evidence: Freund testified that his cocounsel for trial was a former attorney for the Kansas agency that handles child-abuse allegations, that his cocounsel was well versed in issues involving child-witness interviews, and that Freund himself was aware of these issues too. The district court also pointed to sections of the trial transcript in which Freund asked appropriate questions of the State's lead investigator about his contact with T.P.D. Chubb did not demonstrate that Freund's preparation for trial in this area was below acceptable standards.
The district court's conclusions regarding whether Freund should have presented an expert witness like Dr. Allen are problematic to the extent that they rest on the idea that Dr. Allen's testimony would have been inadmissible. The district court relied in large part on a Kansas Supreme Court opinion issued after our 2009 ruling in Chubb's case, State v. Wells, 289 Kan. 1219, 221 P.3d 561 (2009). But our prior opinion in this case noted that such testimony could be crucial in a case like this one, and we concluded that Chubb had alleged facts that—if true—would entitle him to relief. 2009 WL 929136, at *3.
The district court is correct that Wells gives the trial court hearing a criminal case broad discretion in deciding what expert testimony will be allowed regarding interview techniques for child-victim witnesses. 289 Kan. at 1236, 1242. But the Wells court also said that experts may testify regarding interview techniques generally and even “about the problems they perceive with the interviewing techniques used in the particular case.” 289 Kan. at 1241. The Wells court ultimately upheld the trial court's exclusion in that. case of some expert testimony based on the idea that the trial court had fairly balanced its rulings between competing interests of being helpful to the jury while avoiding testimony about another witness's credibility. 289 Kan. at 1242–49. Still, it is difficult after the fact to conclude that most of Dr. Allen's testimony would have been excluded had it been presented at Chubb's trial, especially given the guidance from Wells that testimony about perceived problems with the interviewing techniques used in the case at issue generally is allowed coupled with the holding by this court in Chubb's case in 2009.
Even so, the district court's detailed analysis is still useful in determining whether—even if we assume Dr. Allen's testimony generally would have been admissible at Chubb's trial—the failure to obtain such testimony constituted inadequate representation by Freund. The district court made several key findings about the ultimate insignificance of Dr. Allen's testimony. For example:
• Dr. Allen criticized the use of “forced-choice” questions (like ones asking for a yes or no response) rather than open-ended ones. But the district court pointed to several forced-choice questions that were appropriate, noted that Dr. Allen hadn't said how the forced-choice questions used in T.P.D.'s interview had any effect in contaminating T.P.D.'s recollection of events, and noted that even Dr. Allen agreed that closed-end questions were sometimes appropriate.
• Dr. Allen criticized the use of “play acting” because it might produce inaccurate testimony. But the only instance in which an investigator said, “I'm gonna pretend,” was one in which the investigator primarily sought to get T.P.D. to show what had occurred in one of the incidents, the reenactment occurred after T.P .D. had already described the conduct to investigators, and Dr. Allen didn't explain how T.P.D.'s participation in this reenactment could have contaminated T.P.D.'s recollection of events.
• According to the district court, Dr. Allen noted eight instances in which “perhaps too much flattery ... was used.” As the district court concluded, saying that “perhaps” too much flattery was used is not a particularly strong indictment of the interviewing techniques, and once again Dr. Allen didn't tie that comment into any suggestion as to how it had affected T.P.D.'s recollection. The court also noted that T.P.D. had given her recollection before the instances of flattery Dr. Allen noted.
In sum, Chubb might well have been able to present testimony like Dr. Allen's at trial. But this is not a case in which the value of that testimony appears to be particularly significant.
In Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008), the Kansas Supreme Court addressed a similar claim that counsel had failed to provide appropriate representation because the attorney hadn't hired an expert to testify at trial. The court emphasized that our review must be “highly deferential”:
“Judicial 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. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” 286 Kan. at 981.
In Chubb's case, we agree with the district court's conclusion that Freund's decision not to get an expert witness on child-witness interview techniques did not fall below an objective standard of reasonableness. See Wilkins, 286 Kan. at 981. Even with the benefit of hindsight, Dr. Allen wasn't able to provide testimony that substantially undercut the evidence the State presented at trial. The district court's factual findings that support that conclusion are supported by substantial evidence. In addition, Freund was prepared to cross-examine the State's witnesses regarding their interview methods, and he did so.
The district court's judgment is therefore affirmed.