Belone v. State

• Decision Date: 24 November 2021
• Docket Number: No. 123,374,123,374
• Citation: 498 P.3d 1251 (Table)
• Parties: Christopher A. BELONE, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

498 P.3d 1251 (Table)

Christopher A. BELONE, Appellant,

v.STATE of Kansas, Appellee.

No. 123,374

Court of Appeals of Kansas.

Opinion filed November 24, 2021.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Emma Halling, assistant district attorney, Suzanne Valdez, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Green and Buser, JJ.

MEMORANDUM OPINION

Per Curiam:

Christopher A. Belone appeals the summary dismissal of his timely pro se K.S.A. 60-1507 motion, which raised claims of ineffective assistance of trial counsel. In the motion, Belone alleged that his trial counsel failed to present expert testimony about an alternative cause of death for the victim of his second-degree murder conviction. The district court found the motion lacked factual support and that trial counsel made a strategic decision not to refute the State's forensic expert by calling an independent forensic expert. Belone now appeals, arguing he was entitled to an evidentiary hearing. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Linda Begay died in August 2006 after an incident in which Belone, her boyfriend, beat her with a wooden table leg. After a long trial, a jury convicted Belone of second-degree murder, kidnapping, obstructing official duty, and violating a protective order. On appeal, the Kansas Supreme Court reversed those convictions after finding Sixth Amendment Confrontation Clause violations warranted a new trial. See State v. Belone , No. 99,176, 2010 WL 173950 (Kan. App. 2010) (unpublished opinion), rev'd 295 Kan. 499, 285 P.3d 378 (2012). At the second trial, a jury convicted Belone of unintentional second-degree murder and violating a protective order, and the district court sentenced him to a controlling term of 438 months' imprisonment. Belone then unsuccessfully appealed to this court, which affirmed his convictions and sentence. State v. Belone , 51 Kan. App. 2d 179, 343 P.3d 128 (2015).

This court summarized the facts from the second trial as follows:

"On July 29, 2006, City of Lawrence Police Officers Anthony Brixius and Micah Stegall responded to Gaslight Village trailer park following reports of criminal damage to property and a possible domestic dispute. Officer Brixius spoke with Keith Bowers, who said Begay showed up at his trailer covered in blood and told Bowers that she had been at Frank Mallonee's trailer when Belone came inside and began beating her with a two-by-four. Bowers took Begay to the hospital.

"At the hospital, Begay appeared intoxicated and hysterical. She told hospital staff she had been assaulted by her boyfriend. Begay had a large cut on the bridge of her nose, blood on her face, and bruises on her face

, arms, legs, chest, stomach, and buttocks. Begay complained of pain all over but emphasized the pain in her abdomen. A CT scan of Begay's abdomen showed bruising to her duodenum. Begay died on August 1, 2006, from peritonitis caused by blunt force trauma to her abdomen." 51 Kan. App. 2d at 181-82.

Belone filed a timely pro se K.S.A. 60-1507 motion, raising several claims of ineffective assistance of trial counsel. Belone directed one of his claims at counsel's alleged failure to challenge one of the State's expert witnesses in two ways: (1) by failing to present independent medical testimony about Begay's cause of death; and (2) by failing to lodge a Daubert challenge to the State's expert. See Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 593-594, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (establishing standards for evaluating reliability of an expert witness). In particular, Belone asserted in the motion that Begay had a prior "Self-inflicted or Accedential [sic ] Inflicted Impact that 'Could have' caused the injury [resulting in her death]," and that the jury might have ruled differently if his counsel had called an independent expert witness to testify to these facts at trial. In another claim, Belone alleges that the prosecutor and his trial counsel knew Begay had sustained her injuries in a bicycle accident and conspired together to convict him for political reasons.

Belone filed a motion for appointment of counsel and included several attachments to his motion that he titled "Amendments." The documents relevant to this appeal included:

• A copy of a forensics report from Dr. Keith Norton stating Begay died from "[p]eritonitis and retroperitoneal hemorrhage" and "[b]lunt trauma to the abdomen.

• A signed and notarized statement by Belone that "State's medical examiner Dr. Erik Mitchell stated the only way this injury could occur was by what the defendant did."

• An article from the December 2001 issue of Popular Science about making bicycle handlebars safer for children and reducing the possibility of abdomen injuries. Belone also provided handwritten reproductions of this article and alleged, without a record citation, that his trial counsel "showed it to Dr. Erik Mitchell during trial but did not expand on it or even entered [sic ] it into evidence for jury to see."

• Handwritten excerpts from a "Transcript of Motion on Hearsay Testimony" before the first trial, purporting to show witnesses testifying they saw Begay riding a bike the day of the incident or that she said she was in a bicycle wreck.

• A handwritten reproduction of a letter, allegedly sent to Belone by Dr. Norton, stating that "The manner of death appears to be ‘homicide’ but could be ‘accident.’ "

The State moved to summarily dismiss Belone's motion. The State asserted Belone provided no factual support for his ineffective assistance claim related to the lack of an independent forensic expert and that there was no support in the record that Begay had actually been involved in a bicycle accident. The State also asserted that trial counsel's decision not to call an expert witness was a strategic decision. See Mullins v. State , 30 Kan. App. 2d 711, Syl. ¶ 2, 46 P.3d 1222 (2002).

The district court summarily dismissed Belone's motion. As for the ineffective assistance claim raised in this appeal, the court found:

"Belone further argues that his attorney acted ineffectively by not hiring a medical expert to testify that Begay sustained her fatal injuries in a bicycle accident. There exists almost no factual support to believe that Begay suffered this alleged accident. When asked at trial, most witnesses denied Begay ever reporting a bicycle crash on the day in question. Only one witness provided slightly conflicting testimony, as he originally said Begay tried to tell hospital personnel that she had been in a bicycle accident. Even so, a doctor who treated Begay testified that he received no other reports about how she sustained her injuries. Moreover, the witness who initially claimed to overhear Begay's report of a bicycle accident no longer felt confident about that report when testifying. Other than Belone's counsel asking medical professionals whether Begay's injuries resembled those sustained in bicycle accidents, it cannot fairly be said that the record supports Belone's claim. Belone's motion provides no independent factual basis to believe Begay had a bicycle accident that caused her fatal injuries. Instead, the motion treats the accident as a foregone conclusion.

"A movant who fails to establish a factual background to support his claims risks summary dismissal. Belone fails to provide any factual support for the bicycle accident, rendering his claim insufficient under K.S.A. 2015 Supp 60-1507 pleading rules. For this reason, Belone's claim that his counsel acted ineffectively by not hiring a medical expert to testify fails.

"Additionally, it is well established that ‘the decision to call or not call a certain witness is a matter of trial strategy.’ Strategic decisions that result from an attorney's thorough investigation of a case are virtually unchallengeable. As Belone never challenged his attorney's investigation into the evidence, his attorney's choice to not hire a medical expert constitutes a strategic trial decision. In fact, Belone's counsel attempted to refute Mitchell's testimony through cross-examination of the medical experts, pressing the expert on whether Begay's injuries could have come from a bicycle accident. Belone's counsel challenged the State's evidence in ways other than introducing an independent medical expert.

"Because Belone's counsel refuted Mitchell's expert medical testimony, his claim for ineffective assistance of counsel based on that claim fails and is summarily dismissed. [Citations omitted]."

Belone timely appeals.

ANALYSIS

Belone argues he was entitled to an evidentiary hearing on his ineffective assistance of trial counsel claim. He asserts that independent forensic expert testimony on what caused Begay's fatal injuries was necessary to rebut the State's evidence at trial. He suggests a bicycle accident as an alternative cause. As factual support, Belone points to the documents attached to his motion for appointment of counsel and asserts they were available to his trial counsel but not found in the record. In particular, he asserts the district court failed to properly construe the attachments included with his motion for appointment of K.S.A. 60-1507 counsel as amendments to the original motion, and that if considered, those attachments showed he was entitled to an evidentiary hearing.

At the outset, it bears mentioning that although Belone raised several ineffective assistance claims in his K.S.A. 60-1507 motion, he only carries forward one on appeal. As a result, we find his remaining claims abandoned. See State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018) (issue not briefed is considered waived or abandoned).

Our standard of review is de novo.

When a district court summarily dismisses a K.S.A. 60-1507 motion, this court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant has no right to relief. Beauclair v....