Trussell v. State
| Decision Date | 04 September 2020 |
| Docket Number | No. 121,409,121,409 |
| Citation | 469 P.3d 1293 (Table) |
| Parties | Jerry W. TRUSSELL, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Darrin C. Devinney, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Schroeder, P.J., Green and Buser, JJ.
Jerry W. Trussell appeals the district court's summary denial of his K.S.A. 60-1507 motion. Upon our review, we hold the district court did not err in summarily denying the motion because it was untimely filed and there was no showing that extending the one-year time period was necessary to prevent manifest injustice. See K.S.A. 2019 Supp. 60-1507(f). Accordingly, the district court's summary denial is affirmed.
In 2007, a jury convicted Trussell of aiding and abetting first-degree murder and conspiracy to commit first-degree murder. A detailed summary of the facts presented at the jury trial can be found at State v. Trussell , 289 Kan. 499, 213 P.3d 1052 (2009).
After his conviction, Trussell filed a direct appeal to the Kansas Supreme Court. Trussell asserted numerous claims of error. First, Trussell claimed there was insufficient evidence at trial. But our Supreme Court rejected this argument finding "the evidence of premeditation in this case was more than sufficient to support the first-degree murder conviction." 289 Kan. at 504. Second, Trussell asserted there was jury instruction error, but our Supreme Court found that under the facts of the case "the trial court was not obligated to give a self-defense of others instruction in absence of a request for such an instruction." 289 Kan. at 505.
The Kansas Supreme Court also rejected Trussell's argument that it was error to admit in evidence an incriminating interview Trussell gave to a detective. The court noted that "our review is constricted to some degree because the transcript from the first trial is not in the record," but nevertheless, "we affirm the district court's determination that [Trussell] was not in custody and the failure to give him the Miranda warnings did not mandate the suppression of his statements." 289 Kan. at 506, 509.
Trussell also argued that the district court erred in allowing the prosecutor to ask leading questions during direct examination. But our Supreme Court noted that "each time the defense objected to the prosecutor's use of a leading question, the trial court sustained the objection, unless the prosecutor offered to rephrase or withdraw the question." 289 Kan. at 509. In this regard, the Supreme Court found the trial court did not err. As to the leading questions that defense counsel did not object to, the Supreme Court observed that 289 Kan. at 510. Accordingly, "those errors were not preserved for review." 289 Kan. at 509.
Finally, Trussell asserted the trial court erred in declaring one witness a hostile witness. The Supreme Court rejected this argument, however, finding that the district court "did not abuse its discretion in declaring [the witness] to be hostile to the State." 289 Kan. at 512.
The Kansas Supreme Court affirmed Trussell's convictions on direct appeal, 289 Kan. at 512, and the mandate was filed on September 17, 2009.
Almost 10 years later, on May 6, 2019, Trussell filed a motion under K.S.A. 60-1507 for habeas relief. In his motion, Trussell alleged multiple claims (including four claims related to his direct appeal) of ineffective assistance by his trial and appellate attorney, Michael C. Brown. These claims included defense counsel's failure to: (1) investigate the facts of the case, (2) properly impeach witnesses and object to leading questions at trial, (3) object to the charging document, (4) submit a complete transcript on appeal, and (5) argue prosecutorial misconduct on appeal. Trussell also claimed his due process rights were violated when the prosecutor repeatedly asked leading questions on direct examination.
Trussell addressed the timeliness of his motion, arguing it was not time-barred because he was not represented by adequate counsel at the time of trial and, as a result, the trial court did not have jurisdiction to enter judgment against him. In making this argument, Trussell alleged: "Brown's ineffective assistance left me to believe that I had no way to challenge the results or help myself in this case." Trussell also contended that he did not have the proper educational background to know what was right and wrong concerning the legal process but after years of educating himself, he had learned that his rights were violated.
Trussell attached to his K.S.A. 60-1507 motion a letter from Chief Judge David Ricke, dated March 25, 2016, which the judge sent in response to a letter dated February 29, 2016, that Trussell had sent to the court. In his letter, Judge Ricke informed Trussell that the inmate's letter After quoting that portion of Judge Ricke's letter, Trussell asserted in his motion that "there is something that is questionable here, yet the Judge is content to let this go on."
On May 14, 2019, Judge Ricke dismissed Trussell's motion, finding that the one-year time period had been exceeded and that dismissal of Trussell's motion would not result in manifest injustice.
When a district court denies a K.S.A. 60-1507 motion without holding a hearing an appellate court's review is unlimited. The goal of our review is to determine whether the motion, files, and records of the case conclusively show that the movant is entitled to no relief. Beauclair v. State , 308 Kan. 284, 293, 419 P.3d 1180 (2018).
As applied to this case, under K.S.A. 2019 Supp. 60-1507(f)(1), Trussell was required to file his K.S.A. 60-1507 motion within one year after the issuance of the Kansas Supreme Court's mandate on direct appeal. Trussell does not deny that his motion was untimely under K.S.A. 60-1507(f)(1). As the district court found: We agree with the district court that Trussell's motion was untimely.
When a K.S.A. 60-1507 motion is untimely, an extension of the time period is permitted only "to prevent manifest injustice." K.S.A. 2019 Supp. 60-1507(f)(2). Under this statute, an inmate must either show some good reason why the motion was not filed within the time period or present a colorable claim of actual innocence. K.S.A. 2019 Supp. 60-1507(f)(2)(A). This statutory definition of manifest injustice applies to Trussell's motion because he filed it after the statute was amended on July 1, 2016. See White v. State , 308 Kan. 491, 503, 421 P.3d 718 (2018).
The crux of Trussell's appeal is that the district court erred when it found no manifest injustice would result in the dismissal of Trussell's motion. In particular, Trussell reprises the argument he made in the district court that "he was prevented from raising any of these issues because of Mr. Brown's appellate representation." Trussell also reiterates that he was not educated enough to understand what issues to raise and he had "to train himself to be his own attorney." Lastly, Trussell argues—for the first time on appeal—that Judge Ricke's letter discouraged him from timely filing the K.S.A. 60-1507 motion because the district court "might not consider any filing he made."
The district court ruled that Trussell had not presented any persuasive reasons or circumstances that prevented him from timely filing his K.S.A. 60-1507 motion. According to the district court:
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