Chamberlain v. State, 56762

• Decision Date: 26 January 1985
• Docket Number: No. 56762,56762
• Citation: 236 Kan. 650,694 P.2d 468
• Parties: James L. CHAMBERLAIN, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 468

694 P.2d 468

236 Kan. 650

James L. CHAMBERLAIN, Appellant, v. STATE of Kansas, Appellee.

No. 56762.

Supreme Court of Kansas.

Jan. 26, 1985.

Syllabus by the Court

1. Existing Kansas rules in determining a charge of ineffective assistance of counsel stated and discussed.

2. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

3. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.

(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complaints of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. 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.

(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.

4. In adopting the holdings from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), set forth in Syl. p 2 and Syl. p 3 above, as the present standard to be utilized in determining a claim of ineffective assistance of counsel under the Sixth Amendment, the existing standards and rules articulated in Schoonover v. State, 2 Kan.App.2d 481, 582 P.2d 292 (1978), and subsequent cases remain viable guidelines in determining the issue.

5. When defense counsel has no sound basis to believe that a pretrial motion would have merit and has no reasonable evidence or argument upon which to base such a motion the failure to make it cannot be equated with ineffective assistance of counsel.

Ronald E. Wurtz, Topeka, argued the cause and was on the brief for appellant.

Gene M. Olander, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

HOLMES, Justice:

James L. Chamberlain appeals from an order of the district court, in a proceeding pursuant to K.S.A. 60-1507, denying a new trial sought on the basis of ineffective assistance of counsel. Chamberlain was originally convicted of one count of murder (K.S.A. 21-3401) and one count of aggravated robbery (K.S.A. 21-3427).

We refer to the memorandum decision of the trial court for a statement of the background of this case.

"On April 1, 1980, in Case # 79CR1802, the movant was convicted by a jury in the Shawnee County District Court, Division Three, of one count of first degree murder, pursuant to K.S.A. 21-3401, and one count of aggravated robbery, pursuant to K.S.A. 21-3427. On May 1, 1980, movant was sentenced to life for the count of first degree murder and to a term of not less than fifteen years nor more than life for the count of aggravated robbery, said sentences to run consecutive, one after the other. The Court, having found the offense was committed with a gun, sentenced movant under the provisions of K.S.A. 21-4618. Movant is presently incarcerated at the Kansas State Penitentiary at Lansing, serving said sentence.

"On June 2, 1980, appointed trial counsel, Robert Nelson, filed a notice of appeal in the District Court of Shawnee County, Kansas. On that same date, an order for transcript was filed, the Court having found movant indigent.

"Trial counsel did not follow through with the direct appeal to the Supreme Court and, on February 3, 1983, movant by and through his attorney, Camille Nohe, filed a motion to docket the appeal out of time with the Supreme Court of the State of Kansas. On March 15, 1983, appellant's motion to docket appeal out of time was granted. Argument was had before the Supreme Court limited to the issue of competency of counsel and, on December 2, 1983, movant's appeal was dismissed [State v. Chamberlain, 234 Kan. 422, 672 P.2d 604 (1983) ] and he was directed to raise the issue of ineffective assistance of counsel before the trial court under the provisions of K.S.A. 60-1507.

"This case was then filed pursuant to the direction of the Supreme Court and on February 3, 1984, a hearing was had in the Third Division of the District Court, evidentiary in nature, wherein the movant herein appeared in person and by Camille Nohe, his attorney, and the State of Kansas appeared by Gene M. Olander, District Attorney. The movant herein did not testify in connection with said hearing, the sole evidence being from Mr. Robert Nelson who was the court appointed attorney for James Chamberlain in the proceedings heretofore mentioned.

"The basic allegations of movant herein are that his counsel was so ineffective and incompetent that movant's Sixth Amendment rights were violated. Movant specifically alleges that his counsel at trial was incompetent and ineffective by (1) failing to challenge the legality of defendant's warrantless arrest in his own home, absent exigent circumstances, (2) failing to file motion to suppress incriminating evidence seized 'incident' to that arrest, to-wit the gun, (3) failing to request a Jackson v. Denno hearing prior to trial, (4) failing to move to suppress defendant's confession, and (5) failing to object to the introduction into evidence of various prejudicial exhibits, and defendant['s] counsel's repeated elicitation of evidence which was prejudicial and incriminating."

On the evening of November 6, 1979, Larry Bauman was working at his part-time job as a clerk in a liquor store in Topeka. Shortly before closing time he was robbed and shot in the head with a .357 magnum revolver. He died a short time later at Stormont-Vail Hospital from the gunshot which lacerated his brain. The ensuing police investigation led officers to suspect Chamberlain and on the night of November 12, 1979, several officers of the Topeka Police Department went to his home and arrested him. The officers did not have a warrant for his arrest and there were no exigent circumstances which would justify a warrantless arrest. At the time of the arrest a .357 magnum revolver was recovered which later was determined to be the murder weapon. Additional facts will be presented in connection with the various allegations of ineffective assistance of counsel.

We have often adopted the standards governing claims of ineffective assistance of counsel, stated in Schoonover v. State, 2 Kan.App.2d 481, Syl. pp 2-4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978):

"The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed."

"Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant's Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage in it, and which causes the client's conviction or otherwise works to the client's substantial disadvantage, is also a deprivation of the constitutional guarantee of 'effective' counsel."

"In applying the foregoing standard to counsel's performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney's services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells."

See State v. Kendig, 233 Kan. 890, 895-96, 666 P.2d 684 (1983); State v. Miesbauer, 232 Kan. 291, 654 P.2d 934 (1982); State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981); and State v. Voiles, 226 Kan. 469, 470-71, 601 P.2d 1121 (1979). Although the Schoonover standards have become well-established in Kansas it was only recently that the United States Supreme Court had an opportunity to directly address a claim of "actual ineffectiveness" of counsel as applied to the trial of a case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our standards must now be viewed in the light of the decision in Washington rendered subsequent to the trial court's decision.

Washington pled guilty to three capital murder charges in Florida. In preparing for the sentencing hearing, appointed defense counsel spoke with Washington about his background but did not seek out character witnesses or request a psychiatric examination. Judging that it was advisable to rely solely on the plea colloquy for evidence as to defendant's character and emotional state, counsel presented no further evidence on these matters at the sentencing hearing,...