Edwards v. State, 89,647

• Decision Date: 25 July 2003
• Docket Number: No. 89,647,89,647
• Citation: 31 Kan.App.2d 778,73 P.3d 772
• Parties: JEROME EDWARDS, Appellant, v. STATE OF KANSAS, Appellee.
• Court: Kansas Court of Appeals

31 Kan.App.2d 778

73 P.3d 772

JEROME EDWARDS, Appellant, v. STATE OF KANSAS, Appellee.

No. 89,647

Court of Appeals of Kansas

Opinion filed July 25, 2003.

Gary C. West, of Topeka, for appellant.

Deborah L. Hughes, assistant district attorney, Robert D. Hecht, district attorney, and Phill Kline, attorney general, for appellee.

Before RULON, C.J., ELLIOTT and LEWIS, JJ.

RULON, C.J.:

In this interlocutory appeal, the movant Jerome Edwards contends the district court improperly denied his motion to amend his 60-1507 motion alleging ineffective assistance of counsel. Movant claims the district court erroneously found this court's mandate precluded consideration of additional issues upon remand.

We affirm in part, reverse in part, and remand for further proceedings.

Previously, movant appealed the summary denial of his 1507 motion to this court. In that appeal, movant raised two issues: first, he claimed ineffective assistance of trial counsel deprived him of a fair trial; second, he claimed the State failed to disclose exculpatory evidence. See Edwards v. State, No. 83,575, unpublished opinion, filed October 20, 2000.

Specifically, movant claimed his trial counsel was ineffective in failing to call his mother as an alibi witness; in failing to investigate alleged exculpatory evidence; and in failing to object to the use of a peremptory strike on the basis of gender.

Under the applicable standard of review, this court determined the record did not conclusively demonstrate that, had the movant been able to present evidence of his alibi and alternate theories of the crime, he would not be entitled to relief. As such, this court remanded the case for further proceedings related to those two claims but affirmed the district court's summary denial of the movant's other claims.

After the district court received the mandate from this court, movant sought to amend his 1507 motion to add claims of ineffective assistance of counsel for failing to investigate claims that another individual could have committed the crime; for failing to permit the movant to testify at his trial; for failing to impeach key witnesses for the prosecution; for failing to properly object to misleading evidence admitted by the State; and for failing to use alibi witnesses and other exculpatory evidence.

When the motion to amend his 1507 motion was denied, movant filed a motion to reconsider, specifically alleging that newly discovered evidence further demonstrated the ineffective assistance of trial cousel. The motion for reconsideration alleged that evidence available before trial demonstrated that another individual could have been responsible for the crime for which the movant was ultimately convicted; that trial counsel prevented the movant from testifying at his own trial; that trial counsel ignored alibi witnesses, including his grandmother as well as his mother; and that trial counsel failed to use exculpatory evidence with respect to the damage on the car to impeach a prosecution witness.

The question posed before this court is rather limited in scope. Normally, the granting or denying of a motion to amend is within the sound discretion of the district court. See Hibbert v. Ransdell, 29 Kan. App. 2d 328, 335, 26 P.3d 721 (2001). However, as the merits of movant's 1507 action were not considered by the district court, the sole issue to be here decided is if the district court properly found the mandate from this court prohibited the district court from considering additional factual bases for the ineffective assistance of counsel claim.

When a decision of a district court has been reversed and remanded for further proceedings, the district court is obliged to effectuate the mandate from the appellate court and may not consider matters which are not essential to the implementation of the ruling of the appellate court. Interpretation of the mandate and a determination of the district court's compliance with that mandate involve questions of law, over which this court has unlimited review. See In re Marriage of Bahr, 29 Kan. App. 2d 846, 847, 32 P.3d 1212 (2001), rev. denied 273 Kan. 1035 (2002) (citing Kansas Baptist Convention v. Mesa Operating Ltd. Partnership, 258 Kan. 226, 231, 898 P.2d 1131 [1995]). Where the mandate of an appellate court merely reverses a ruling of the district court and remands the case for further proceedings but does not direct the judgment of the district court, the district court has discretion to preside over the remaining trial proceedings, as if the district court had originally made the ruling mandated by the appellate court. See Waddell v. Woods, 160 Kan. 481, 483-84, 163 P.2d 348 (1945). In other words, a district court may address those issues necessary to the resolution of the case that were left open by the appellate court's mandate. See Laitram Corp. v. NEC Corp., 115 F.3d 947, 951 (Fed. Cir. 1997) (citing In re Sanford Fork & Tool Co., 160 U.S. 247, 256, 40 L. Ed. 414, 16 S. Ct. 291 [1985]; Caldwell v. Puget Sound Elec. Apprenticeship & Training Trust, 824 F.2d 765, 767 [9th Cir. 1987]).

However, where the appellate court has decided a particular issue, by explicit language or by necessary implication, the district court is foreclosed from reconsidering such an issue. See Guidry v. Sheet Metal Wkrs. Intern. Ass'n, Local 9, 10 F.3d 700, 705-06 (10th Cir. 1993). See also Laitram Corp., 115 F.3d at 951 ("Although the district court cites much authority for the proposition that issues decided implicitly by courts of appeals may not be reexamined by the district court, the rule is actually applicable only to those issues decided by necessary implication.").

Generally, an explicit ruling of the appellate court is easily identified upon a careful reading of the opinion. An implicit ruling may be more difficult to ascertain, but we adopt a three-pronged test for determining that a prior decision has foreclosed further inquiry into a subject: (1) the issue necessarily had to have been considered in the prior appeal in order to reach a decision; (2) consideration of the issue on remand would abrogate the appellate court's decision; or (3) the issue is so closely related to an issue explicitly resolved by the appellate court that no additional consideration is necessary. See Guidry, 10 F.3d at 707.

If an issue could have been raised in a prior appeal but was not raised in that appeal, an appellate court should not consider the issue on a second appeal, even if the issue was not explicitly or implicitly decided on the first appeal. See Kansas Baptist Convention, 258 Kan. at 231. Such refusal to consider fosters the practical goals of encouraging the finality of litigation and discouraging appellants from repeatedly appealing their cases in hopes that a different panel of judges might be more sympathetic to their plight. See United States v. Becerra, 155 F.3d 740, 752 (5th Cir. 1998).

Here, in his motion to amend, movant claimed he told his trial attorney about another inmate of the Shawnee County jail, Shawn Carter, who was being held in connection with a crime very similar to the crime for which the movant was charged. Shawn Carter allegedly told movant that Carter had been present at the crime the movant had allegedly committed and knew that movant had not committed the crime. The movant supposedly informed his trial attorney of this, as well. Movant now argues the failure to investigate such reports constitutes ineffective assistance with movant's defense.

In movant's first appeal to this court, one of the issues remanded for further proceedings concerned the movant's claim his trial counsel failed to investigate evidence the movant provided which might have pointed to an alternate perpetrator of the crime.

While the movant's allegations concerning Shawn Carter were first raised in his motion to amend, such pertain to the reasonableness of trial counsel in failing to investigate the defendant's allegations that someone else perpetrated the crime for which movant was charged. Aside from the facts used to support the claims, there is virtually no difference between this new claim and the movant...