Boldridge v. State

• Decision Date: 11 September 2009
• Docket Number: No. 97,652.,97,652.
• Parties: Lisa BOLDRIDGE, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

215 P.3d 585

Lisa BOLDRIDGE, Appellant, v. STATE of Kansas, Appellee.

No. 97,652.

Supreme Court of Kansas.

September 11, 2009.

Jean K. Gilles Phillips, of Paul E. Wilson Defender Project, University of Kansas School of Law, of Lawrence, argued the cause and was on the briefs for appellant.

Rex L. Lane, special prosecutor, of Atchison, argued the cause, and Paul J. Morrison,

attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by DAVIS, C.J:

Lisa Boldridge's first-degree murder conviction and hard-50 sentence were affirmed by this court on direct appeal. State v. Boldridge, 274 Kan. 795, 57 P.3d 8 (2002), cert. denied 538 U.S. 950, 123 S.Ct. 1629, 155 L.Ed.2d 494 (2003). Her case comes before us again on our grant of Boldridge's petition for review of the Kansas Court of Appeals' decision regarding her K.S.A. 60-1507 motion. A divided panel of the Court of Appeals affirmed the district court's denial of her motion regarding ineffective assistance of trial counsel, finding that Boldridge was adequately represented by counsel during the trial of her case. Boldridge v. State, No. 97,652, 2008 WL 2422899, unpublished opinion filed June 13, 2008. Judge Greene dissented, explaining that he interpreted the record to demonstrate "multiple and egregious errors of trial counsel [that] truly undermined [his] confidence in the outcome of Lisa Boldridge's trial." Boldridge, slip op. at D-1 (Greene, J., dissenting). We granted Boldridge's petition for review, which only raised issues of ineffective assistance of counsel at trial. We now reverse the decision of the Court of Appeals affirming the district court on the issue involving the admissibility of hearsay evidence, reverse the decision of the district court on that same issue, affirm both courts on the other claims regarding ineffective assistance of counsel at trial, and remand the case with directions to the district court for further proceedings consistent with our opinion.

We note that the Court of Appeals also held that Boldridge was inadequately represented by counsel at sentencing. Based on this conclusion, the Court of Appeals vacated Boldridge's sentence and remanded her case to the district court for resentencing. Slip op. at 19-20. The question of inadequacy of counsel at sentencing is not before us, and the decision of the Court of Appeals is final as to Boldridge's arguments relating to her attorney's performance at sentencing. Boldridge's sentence is therefore vacated. If the district court determines on remand that Boldridge is not entitled to a new trial, she must be resentenced in accordance with the Court of Appeals opinion.

In her petition for review, Boldridge claims that her constitutional right to counsel at trial was violated in a number of ways.

First, Boldridge contends she was given inaccurate legal advice by her trial counsel, Charles Tuley, that violated her right to effective assistance of trial counsel. In particular, Boldridge asserts Tuley did not understand that his client could be convicted as an aider and abettor if she was charged in the complaint as a principal. Boldridge alleges that, based on this misunderstanding, Tuley advised her to waive her right to a jury trial, as the court would better comprehend this legal argument. Boldridge also claims this advice by counsel caused her to forego a change of venue granted by the trial court since she was planning on having a bench trial; instead, her trial took place in Atchison County where the killing had occurred.

In addition to her claims regarding counsel's inaccurate legal advice, Boldridge claims counsel's performance at trial was constitutionally defective because he failed to rebut evidence of her prior convictions with information regarding the long history of domestic abuse inflicted on her by her former husband (the victim of the underlying murder). She also claims her counsel's cross-examination of the prosecution's star witness was constitutionally deficient and denied her a fair trial.

Boldridge also contends her trial counsel could not provide constitutionally effective performance because he labored under actual conflicts of interest that divided his loyalties. Finally, Boldridge claims cumulative error denied her right to a fair trial.

TRIAL COUNSEL'S ALLEGED CONFLICTS OF INTEREST

Before any consideration of the questions involving advice given to Boldridge by counsel or counsel's alleged deficient and prejudicial performance in representing her at trial, we take up as a threshold issue the question of counsel's alleged conflicts of interest.

The Sixth Amendment to the United States Constitution guarantees in "all criminal prosecutions" that "the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." This Sixth Amendment right to counsel is made applicable to state proceedings by the Fourteenth Amendment to the Constitution. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This court has explained that the right to counsel guaranteed by these provisions is the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 [1984]). Similarly, a defendant in a criminal trial has a constitutional right to "representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).

Allegations of ineffective assistance of counsel, whether based on claims of deficient performance or on a conflict of interest, involve mixed questions of fact and law. This court therefore reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo. See State v. Gleason, 277 Kan. 624, 644-45, 88 P.3d 218 (2004).

To demonstrate that a conflict of interest resulted in ineffective assistance of counsel, a defendant has the burden of proving a reversible conflict — that is, (1) a conflict of interest (2) that affected the adequacy of the attorney's representation. See Mickens v. Taylor, 535 U.S. 162, 168, 122 S.Ct. 1237, 152 L.Ed.2d 291, reh. denied 535 U.S. 1074, 122 S.Ct. 1954, 152 L.Ed.2d 856 (2002); Gleason, 277 Kan. at 650, 88 P.3d 218. A defendant who can demonstrate that a conflict of interest affected the adequacy of his or her counsel's representation need not demonstrate prejudice in the traditional sense, which requires the defendant to prove that counsel's deficient performance affected the outcome of the trial, due to the difficulty of establishing such a claim in cases based on conflicting loyalties. See Mickens, 535 U.S. at 174, 122 S.Ct. 1237.

Appointed Counsel Acting as Pro Tempore Judge

Boldridge argues that Tuley's representation fell below the objective standard of reasonableness guaranteed by the Sixth and Fourteenth Amendments because, prior to his appointment as her counsel, he had acted as a pro tempore part-time judge in Atchison County in May 2000 on matters directly related to her first-degree murder prosecution. The record discloses that while serving as pro tempore judge, Tuley signed various inquisitional subpoenas to obtain telephone records in the criminal investigation that eventually resulted in a charge of first-degree murder against Boldridge. The records acquired as a result of those subpoenas were later used as evidence against Boldridge at her murder trial to corroborate the testimony of other witnesses regarding various telephone calls Boldridge made around the time of the murder.

The record discloses that at the time of his appointment, Tuley had spoken with Boldridge about his service as a pro tempore judge and his involvement with subpoenas for "telephone records." Counsel explained that he never reviewed any documents in conjunction with the Boldridge's murder case. When Boldridge was asked by the district court at the appointment hearing whether she had discussed the nature of her counsel's involvement as a pro tempore judge with him, Boldridge indicated that Tuley had explained his pro tempore service "in depth" and that Boldridge saw no conflict in Tuley representing her during her trial for murder.

Boldridge related during her K.S.A. 60-1507 hearing that Tuley (who died prior to the K.S.A. 60-1507 hearing) told her that his previous service as a pro tempore judge "wasn't really a big deal" and that he happened to be sitting on the bench the day the subpoenas needed to be signed since the full-time judges in the area were out of town. While Boldridge explained that counsel advised her of the conflict initially, she was never given an opportunity to discuss the ramifications of the conflict with another attorney. She testified at the hearing on her motion that she waived the conflict because she "was under the impression it really wasn't that big of a deal."

The district court concluded Boldridge had presented no evidence at the K.S.A. 60-1507 hearing that Tuley was operating under a conflict of interest that called for an automatic disqualification and that Boldridge waived any objections to the alleged conflict on the record. The Court of Appeals majority agreed, noting that Boldridge "cite[d] no authority prohibiting the waiver of a conflict of interest," that Boldridge "knew of Tuley's pro tem judicial service in signing the subpoenas for phone records," and that Boldridge "specifically waived that conflict so Tuley could represent her in the criminal case." Boldridge, slip op. at 10.

Boldridge now argues that our decision in State v. Rice, 227 Kan. 416, 607 P.2d 489 (1980), requires that we reverse her conviction of first-degree murder due to her counsel's prior actions a pro tempore judge. Rice involved allegations by a defendant that his defense counsel had operated under an...