Appeal from Rice District Court; Ron L. Svaty, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Rice District Court; Ron L. Svaty, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., HILL, J., and LARSON, S.J.
In this collateral attack, James P. Thurman asks us to overturn his convictions because of his defense counsel's deficient trial performance. In order to obtain habeas corpus relief for poor attorney performance, a prisoner must show that the attorney's conduct was both deficient and prejudicial to the defense. Despite the subjective belief of Thurman's defense counsel that he put in a subpar performance while defending Thurman, Thurman has not shown how any of the alleged deficiencies prejudiced his case. Therefore, we affirm the district court's denial of relief. The convictions occurred in 2006.
James P. Thurman was convicted of kidnapping, aggravated burglary, aggravated battery, domestic battery, violation of a protection order, and two counts of misdemeanor battery arising from an incident where Thurman broke down the door of a house, struck more than one person, and removed his young child from the home. More details can be found in State v. Thurman, No. 97,450, 2008 WL 2891064 (Kan.App.2008) (unpublished opinion), rev. denied Jan. 22, 2009. At trial, Thurman was represented by court-appointed counsel Robert A. Anderson.
These convictions were affirmed by this court, and review was denied by our Supreme Court. Then in January 2010, Thurman moved for relief in the district court under K.S.A. 60–1507. In his motion, Thurman claimed his right to a fair trial had been violated because his defense counsel, Anderson, suffered a death in the family during the course of trial and was therefore distracted, incapable of performing his duties, and ineffective in representing Thurman.
Attached to Thurman's petition was Anderson's sworn affidavit. In the affidavit, Anderson stated that Thurman's jury trial was scheduled to start on June 19, 2006. On June 14, Anderson was notified that his mother had died. Anderson concluded that in retrospect, he truly believed that his decision to proceed with the trial, despite his grief and guilt from his mother's death, along with the stress of his fiduciary obligations as the executor of her estate, adversely affected Thurman's ability to receive a fair trial. Anderson opined that Thurman was denied effective assistance of counsel and that he was prejudiced.
The district court held an evidentiary hearing on Thurman's K.S.A. 60–1507 motion and denied Thurman's motion. Both Anderson and the county attorney who prosecuted Thurman testified at the hearing.
On appeal from the denial of his K.S.A. 60–1507 motion, Thurman argues the district court erred in finding Anderson provided effective assistance of counsel. Thurman says the district court's factual findings were erroneous, Anderson's testimony about his ability to represent Thurman was uncontested, and the district court improperly relied on outside evidence to support its decision. We repeat our standard of review.
When the district court denies a K.S.A. 60–1507 motion after an evidentiary hearing, this court on appeal must determine whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007). “The ultimate denial of the 60–1507 motion involves a legal question requiring independent appellate review.” Drach v. Bruce, 281 Kan. 1058, 1063, 136 P.3d 390 (2006), cert. denied549 U.S. 1278.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law and requires de novo review. Bledsoe, 283 Kan. at 91. In order to demonstrate that counsel's assistance was so defective as to require reversal of a conviction, a defendant first must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial. 283 Kan. at 90. We examine the alleged deficiencies in the attorney's performance.
In his affidavit attached to the motion and then in testimony at the K.S.A. 60–1507 hearing, Anderson identified three errors he believes he made at trial—he read his closing argument, he mentioned Thurman's prior bad acts in his opening statement, and he failed to object about the presence of the alternate jurors in the jury room during deliberations. Focusing on these three issues, the district court determined that none resulted in ineffective assistance of counsel. We address each in turn. (In his brief, Thurman suggested additional errors but, as they were not argued before the district court, we will not consider them.) Reading closing argument.
Anderson read his closing argument to the jury. He had never done this before. It takes up some 27 pages in the trial transcript according to the district court. But Anderson never explains why this was harmful to the defense. Many attorneys read their arguments to the jury. No court of this state has ever ruled that reading a closing argument constitutes deficient performance.
More importantly, Thurman has not demonstrated how Anderson's decision to read the closing argument prejudiced Thurman. The mere fact that Anderson had never read his closing argument before does not mean that his decision to do so in Thurman's case prejudiced Thurman in any way. In fact, it may have helped Thurman's case—as it allowed Anderson to convey all of his arguments to the jury without the risk of forgetting key facts or arguments. At Thurman's 1507 hearing, Anderson testified he “spent hours” preparing the written closing argument. We note that Thurman makes no claim that Anderson's closing argument was deficient in substance and only complains that it was read to the jury. This reason does not compel us to grant habeas corpus relief. Mention of bad acts by Thurman.
For his next error, Anderson claimed it was wrong for him to bring up prior bad acts during opening statement and during cross-examination even though he initially objected to the State's request that the evidence be allowed. At trial, the victim testified that Thurman threatened to kill or hurt her physically and threatened to kill her mother and her children. During Anderson's opening statement, he mentioned that Thurman had been convicted of making criminal threats against the victim and reckless driving. Then, during cross-examination, Anderson brought up the reckless driving conviction where Thurman tried to run the victim off the road and asked the victim about it.
In the direct appeal of this conviction, our court held if admission of this evidence was error, it was harmless since the trial court, had it made an analysis, could have found a legal basis for admitting the evidence and the giving of a limiting instruction. The panel deemed the evidence of the prior threats highly relevant as it explained why the victim was concerned for her children. The driving conviction was relevant, according to the panel, to show Thurman's intent to take his child and terrorize the victim. Our court also noted that a limiting instruction was given by the court limiting the effect of this evidence. 2008 WL 2891064, at *4.
In response to this claim, the district court first noted that this court found this was harmless error and said the evidence was relevant. The district court also noted that many experienced attorneys routinely discuss this type of evidence during their opening remarks as a trial tactic— i.e., “an attempt to take the sharp edges off of potentially persuasive evidence they know will later be admitted.”
Again, we see no prejudice to Thurman's case. It appears to us this evidence would have been admitted anyway whether Anderson mentioned it or not in his opening statement. If this was error, it was not reversible error nor is it sufficient grounds for habeas corpus relief. Leaving hometown people on the jury.
Anderson claimed it was a mistake to leave a resident of Chase on the jury. Chase is evidently the hometown of Thurman. Anderson and Thurman offer no more explanation on why that was bad other than Anderson's belief in retrospect that it was wrong. Although Anderson may now be second-guessing his decision to leave certain persons on the jury, this court has no basis for concluding his decision was ineffective. This court has no way of knowing what Anderson was thinking in terms of strategy when he chose to leave certain persons on the jury. In the absence of any showing of prejudice as a result of the jury selection, this court is in no position to question Anderson's decisions. Again, Thurman has not shown how he was prejudiced as a result of certain persons being on the jury. Thurman has not shown evidence of juror misconduct, for example, or made any allegations of that nature. And notably, the issue was not raised on direct appeal.
We agree with the district court on this point. This claim does not overcome the strong presumption that counsel's conduct fell within the range of reasonable professional conduct. We must not be swayed by the “distorting effects of hindsight.” Moncla v. State, 285 Kan. 826, 832, 176 P.3d 954 (2008). Leaving alternate jurors in the jury room during deliberations.
Our court's opinion in the direct appeal reveals that the trial court suggested that “to save time” it intended to leave the alternate jurors with the jury during its deliberations and asked if either party objected. Neither party did. Thurman now claims that was evidence of deficient performance by Anderson. In his sworn affidavit, Anderson indeed noted that he failed to object to the presence of alternate jurors in the jury room.
On direct appeal, this court noted that Anderson failed to object to the presence of alternate jurors and actually agreed that their presence was the best alternative. The court opined that the “better practice” would have been to exclude the jurors from deliberations. 2008 WL 2891064, at *7. But the court also said that allowing the jurors to be present may be harmless, and ultimately found it was not error here—noting Thurman showed no evidence of misconduct on the part of the jurors and no prejudice as a result of their presence. 2008 WL 2891064, at *7. In this appeal, Thurman again shows no prejudice as a result of the alternate jurors' presence during deliberations. We move on to other claims.
In his brief, Thurman claims the factual findings of the district court were erroneous because Anderson did not testify that he committed only three errors; Thurman says Anderson testified to other errors as well and only pointed to three particular errors as examples of his ineffectiveness.
Thurman is correct that Anderson indeed testified that his ability to concentrate on the evidence and witnesses was impacted by his grief. When asked whether he felt that he effectively represented Thurman, Anderson responded, “Absolutely not.” When asked whether—based on his experience, knowledge of himself and his standards, and general standards—he believed Thurman was prejudiced as a result of his difficulties, Anderson responded that he thought Thurman was prejudiced. Anderson agreed that the trial would have been different had the case been continued.
But the problem with Anderson's testimony is that it is not backed by actual evidence. This court cannot find Anderson ineffective based solely on his personal opinion of his performance. In the absence of some showing that a particular decision by Anderson was erroneous under the law and that it actually prejudiced Thurman, this court cannot reverse Thurman's convictions based on ineffective assistance of counsel. Before counsel's assistance can be found so defective as to require reversal of a conviction, the defendant must establish that counsel's deficient performance prejudiced the defense. Bledsoe, 283 Kan. at 90. Thurman has failed to show prejudice.
On appeal, Thurman also cites other alleged “errors” by Anderson—such as Anderson's failure to clarify that the victim's injuries were caused by someone other than Thurman, his failure to object to photographs, and his failure to object to certain jury instructions. These claims cannot be considered on appeal. Anderson did not mention these issues in his affidavit or testimony, and they were not discussed in the district court's opinion. This court will not, for the first time, entertain alleged errors that were not raised below. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008).
Thurman also argues that Anderson's testimony about his ability to effectively represent Thurman was uncontroverted. This argument is not supported by the record. Prosecutor Oakley testified that he believed Anderson's advocacy of Thurman was “the same” as that given to clients in other cases, there was nothing he could point to that Anderson did differently in Thurman's case, he believed Anderson handled the case “just as zealously” as he did other cases, he did not believe Anderson did anything “out of character” during the trial, and he believed Anderson was a very zealous advocate for Thurman. Oakley's testimony clearly contradicted Anderson's testimony that he was ineffective and unable to properly represent Thurman. Curious remarks of the district court are not cause for reversal .
Thurman's final complaint involves the district court's comments on information found outside the record. In particular, the district court (1) opined that Anderson's cross-examination of law enforcement officers was “withering” because the court saw the officers' subsequent actions on “TV news”; (2) noted his discussion with the jurors posttrial and indicated the jurors were impressed with Anderson; and (3) quoted language from a book or film when discussing the jury selection issues. Thurman argues it was inappropriate for the court to consider such information as evidence when determining Anderson was effective.
While Thurman is correct that it is clearly improper for the court to consider information it independently obtained from outside the record, review of the record and the district court's decision as a whole indicates that the court's ultimate conclusion did not depend on this outside information. Instead, the district court merely commented on the outside information in passing. While the ramblings were improper, in the final analysis, the district court's decision is supported by the facts and law without regard to the outside information.
Thurman has not demonstrated his trial counsel was ineffective or that he was actually prejudiced in any way as a result of counsel's performance. The mea culpa affidavit signed by Anderson is a formal acknowledgment of personal fault and error. Indeed, it is a remarkably frank document admitting he performed at a level below his normal efforts. But the question remains, has Thurman shown a reasonable probability that but for Anderson's errors, the outcome of the trial would have been different? We think not.
Instead, this is a case of an attorney second-guessing his performance and speculating as to what he could have done differently at trial. Thurman did not challenge the sufficiency of the evidence on direct appeal and does not dispute the district court's assessment that evidence of guilt was overwhelming. The district court correctly denied Thurman's K.S.A. 60–1507 motion.