Drach v. Bruce, 93,654.

• Citation: 136 P.3d 390
• Decision Date: 09 June 2006
• Docket Number: No. 93,654.,93,654.
• Parties: Roger DRACH, Appellant, v. Louis BRUCE and State of Kansas, Appellees.
• Court: United States State Supreme Court of Kansas

Page 390

136 P.3d 390

Roger DRACH, Appellant, v. Louis BRUCE and State of Kansas, Appellees.

No. 93,654.

Supreme Court of Kansas.

June 9, 2006.

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Jeremiah J. Kidwell, of Kansas City, Missouri, argued the cause, and Dennis J.C. Owens, of Kansas City, Missouri, was with him on the briefs for appellant.

Lois K. Malin, assistant county attorney, argued the cause, and John P. Wheeler, J., county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

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

Roger Drach's convictions of first-degree premeditated murder, aggravated battery with great bodily harm, and criminal possession of weapons in this marital homicide case were upheld in State v. Drach, 268 Kan. 636, 1 P.3d 864 (2000). Drach appeals the denial of his K.S.A. 60-1507 motion alleging that counsel was ineffective by depriving him of the right to testify on his own behalf and that his convictions were based on inadmissible hearsay evidence in violation of the Confrontation Clause. We disagree and affirm.

Roger Drach was convicted of first-degree premeditated murder, aggravated battery with great bodily harm, and criminal possession of weapons in connection with the death of his wife, Deanne Drach. A summary of the facts giving rise to the charges and convictions as set forth in our State v. Drach, 268 Kan. 636, 1 P.3d 864, decision follows:

"Deanne died on August 19, 1994, as a result of a gunshot wound to the chest. This case was not commenced until nearly 2 years after her death. The main issue at trial was whether Deanne had committed suicide or had been murdered by Drach.

"Drach claimed Deanne committed suicide, that he was not in the room when she was shot, and that he found her on the bed after he heard the shot. The State's expert witnesses testified the wound could not have been self-inflicted. Drach's expert witnesses testified they were 99.5% certain the wound was self-inflicted.

. . . .

"After review of the extensive record (18 volumes, the longest of which is 291 pages), two relevant facts emerged: Deanne had an affair 28 years before her death, and she had been abused since her husband discovered the affair shortly after it occurred.

"At trial, there was much hearsay evidence of abuse suffered throughout the 34-year-marriage, none of which is pinned down by time or date.

"When Deanne's body was examined at the scene, she was on the bed in the southeast corner of the room. The gun that was used to shoot her was in the northwest corner of the room. The gun was a derringer. Both parties' experts testified the bullet had been fired from the top barrel. Yet, the top barrel had a live round with a dented primer in it and an empty cartridge in the bottom chamber.

"Both old and new blood stains consistent with Deanne's blood were found throughout the house, in Deanne's purse, in her clothing, and in Drach's car, which would indicate Deanne had been abused for a long period of time.

"When Deanne's body was examined, she was lying in fresh blood but had dried blood on her arms and back. She had a 2.5 centimeter laceration on the back of her head that went to the bone, two black eyes, a laceration above the right eye, and bruises all over her body. X-rays revealed new fractures of the 9th, 10th, and 11th ribs.

"Two autopsies revealed old fractures of the 7th, 10th, 11th, and 12th ribs on the right side; a healing fracture of the left ulna; a fracture of the right arm that had recently been refractured; and a gunshot wound to the left arm.

"Drach gave accounts of what happened that did not appear to be accurate. For example, in discussing a broken window, Drach said he had to break into the house because he did not have his key. Law enforcement officers testified the window was broken from the inside out. Drach testified that Deanne had facial bruises when he checked her out of the hospital. Three witnesses testified, however, that Deanne had no visible marks on her when they last saw her, including the discharging nurse at the hospital.

"Drach also said he thought Deanne was drinking again when she died. The autopsy report showed her blood alcohol concentration was .000. Drach also told officers Deanne got her gun out of her car the day she was shot. Her car was in storage at Dodge City at all pertinent times and had been for some time." 268 Kan. at 637-39, 1 P.3d 864.

In the original appeal affirming Drach's convictions and sentences, we rejected Drach's argument that the marital discord evidence admitted by the district court as res gestae was inadmissible hearsay because it fell under the marital discord exception. We also concluded that such evidence was not violative of the Confrontation Clause because the statements had particular guarantees of trustworthiness under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597(1980). 268 Kan. at 648-51, 1 P.3d 864.

On October 12, 2004, Drach filed an amended K.S.A. 60-1507 motion claiming that trial counsel was ineffective in failing to inform him of the right to testify on his own behalf and failing to object to prejudicial marital discord testimony. He also claimed that his convictions were based on hearsay testimony which violated the Confrontation Clause under both Roberts and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

An evidentiary hearing on the motion was held on October 22, 2004. After hearing testimony from Drach and his trial counsel Richard Marquez and John Lindner, the district court denied the motion, finding overwhelming evidence existed that Drach was informed of his right to testify on his own behalf and that his hearsay claims were resolved against him in his direct criminal appeal and are bound by res judicata in his 60-1507 motion. The court further concluded that Crawford should not be applied retroactively to cases on collateral review, that the marital discord testimony was not testimonial under Crawford, and that Crawford does not apply under the doctrine of equitable forfeiture because Drach was responsible for Deanne's death. The defendant timely appealed, and we transferred this case on our own motion pursuant to K.S.A. 20-3018(c).

The defendant raises two arguments on appeal: (1) Defense counsel was ineffective by depriving Drach of the right to testify on his own behalf; and (2) inadmissible hearsay marital discord evidence was admitted at trial in violation of the Confrontation Clause under Roberts and Crawford.

K.S.A. 60-1507 Standard of Review

When reviewing the denial of a K.S.A. 60-1507 motion following an evidentiary hearing before the district court, the appellate court reviews the factual underpinnings of the district court's decision by a substantial competent evidence standard and applies a de novo standard when reviewing the district court's decision. The ultimate denial of the 60-1507 motion involves a legal question requiring independent appellate review.

"Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [In other words,] substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]" State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).

(1) Sixth Amendment Right to Testify

Background

Before the defense rested at trial, Drach had a discussion with his two trial attorneys, Richard Marquez and John Lindner, concerning testifying on his own behalf. The attorneys did not agree whether Drach should testify. Lindner thought the defense did not have "enough" without his testimony, and Marquez was concerned that Drach would lose his temper on the stand and that Drach might have to admit that a battery had occurred. Although Drach made statements that he was paying Marquez to decide if he should testify, both attorneys confirmed that Drach was informed that it was his decision whether to testify and that Drach himself decided that he would not testify. Drach argues that he did not feel like it was his decision to make and the reason why he did not testify was because Marquez did not want him on the stand.

Prior to the State's rebuttal, the district court asked Drach if he understood his Fifth Amendment right against self-incrimination and that it was his decision alone whether to testify on his own behalf. Drach replied that he understood and had decided not to testify. The defense rested without Drach testifying on his own behalf.

During the State's rebuttal, Karen Althaus testified that her husband had an affair with Deanne 25 years earlier. In July 1972, Drach discovered the affair and forced Deanne into the Althauses' home at 1 a.m. Drach was enraged and pointing a gun at a crying Deanne whose clothing was torn. Drach stated that Deanne had confessed to him and he wanted Mr. Althaus to do the same. He made Deanne swear on a Bible to the number of times they had sex, and he struck her across the face demanding to know what happened. Althaus testified that Drach said he had four bullets and that he would kill Deanne and himself because there was no reason to live. He forced Deanne to call her parents, confess her unfaithfulness, and tell them goodbye. He told her parents to drive to Hutchinson to say goodbye to their daughter, and they left the Althaus residence.

At the 60-1507 hearing, Drach testified that he decided he wanted to testify when Althaus was called as a rebuttal witness. He claimed he twice said, "`Mr. Marquez, she is lying. I've got to testify, I've got to do something.'" Drach said that Marquez waived his hand and said, "`Sit down, sit down.'" Drach did not testify following rebuttal, nor did he talk to his lawyers about their failure to let him testify or raise the issue with the court.

Marquez testified that he did not...