Flynn v. State, No. 94,568.
| Decision Date | 09 June 2006 |
| Docket Number | No. 94,568. |
| Parties | Dana Linn FLYNN, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
William K. Rork, of Topeka, argued the cause and was on the brief for the appellant.
Christopher E. Biggs, special prosecutor, argued the cause, and Phill Kline, attorney general, was with him on the brief for the appellee.
Dana Flynn was convicted of first-degree premeditated murder, conspiracy to commit first-degree murder, and conspiracy to commit perjury in 1996. Flynn was convicted of murdering Randy Sheridan, who was shot to death on December 22, 1992, in rural Geary County. More detailed facts regarding Flynn's underlying convictions can be found in a companion case, State v. Dreiling, 274 Kan. 518, 54 P.3d 475 (2002). This court upheld her convictions on direct appeal in State v. Flynn, 274 Kan. 473, 55 P.3d 324 (2002). She filed a K.S.A. 60-1507 motion, claiming ineffective assistance of trial counsel, and now appeals the district court's denial of her motion.
In January or February 1993, prior to being charged with Randy Sheridan's murder, Flynn retained Brent Lonker from Wichita to represent her. Lonker represented her during an inquisition and the grand jury proceedings prior to the filing of charges. He appeared on Flynn's behalf at the preliminary hearing in April 1995 through June 1995. Lonker continued in his representation of Flynn at all pretrial motions and hearings and for a separate perjury charge. Three and one-half years after originally being retained, Lonker represented Flynn at trial where Flynn was convicted along with her brother, Mikel Dreiling. See State v. Dreiling, 274 Kan. 518, 54 P.3d 475. Flynn's pastor, Jerry Rollins, was also charged with Randy's murder but pled to a lesser charge. At Lonker's suggestion, Mikel Dreiling hired Lee McMaster from Wichita to represent him, and Jerry Rollins hired Dan Monnat to represent him. Lonker, McMaster, and Monnat worked cooperatively in preparing their clients' defenses. Lonker, McMaster, and Monnat agreed that the best defenses for their clients required the severance of Rollins' trial. As a result, Lonker filed a motion to sever. Lonker, McMaster, and Monnat reached an agreement with the State to sever Rollins' trial from Flynn's and Dreiling's trial.
Approximately 2 months before her trial began in August 1996, Flynn ran out of money to pay Lonker. With Flynn's approval, Lonker asked the court to appoint him as Flynn's counsel, and the district court granted his request. A jury convicted Flynn of first-degree premeditated murder; conspiracy to commit first-degree murder; and conspiracy to commit perjury after a 3 month trial. Flynn's brother, Mikel Dreiling, was convicted of first-degree premeditated murder; conspiracy to commit first-degree murder; conspiracy to commit perjury; and terroristic threat.
In 2003, Flynn filed a K.S.A. 60-1507 motion, alleging ineffective assistance of trial counsel. Following a 2-day evidentiary hearing, including testimony from multiple witnesses for both Flynn and the State, the district court issued a lengthy, detailed, and well-reasoned written memorandum decision denying Flynn's motion. Flynn appealed to the Court of Appeals, and we transferred the matter to this court on our own motion pursuant to K.S.A. 20-3018(c).
Flynn claims that she should receive a new trial because she was denied the effective assistance of counsel during her trial. Flynn raises eight complaints to establish her claim that her trial counsel was ineffective. First, Flynn argues that Lonker was ineligible to try a first-degree murder case. Next, Flynn argues that Lonker prevented her from testifying and failed to inform her of her right to testify. Flynn also argues that Lonker failed to properly investigate the case, was not prepared for trial, failed to call witnesses on her behalf, and failed to introduce evidence that she thought was critical to her case. Flynn further argues that Lonker failed to conduct a poll to support a change in venue. Finally, Flynn asserts that Lonker unreasonably relied on codefendant's counsel, McMaster and Monnat, to investigate and litigate her case.
Before we address Flynn's specific complaints about her trial counsel's performance, it is necessary to set forth our standard of review. Evaluating the effectiveness of a defendant's counsel requires the application of the two-part Strickland test. Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First a defendant must establish that his or her counsel's performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. If the defendant can establish that the performance was deficient, the defendant must then demonstrate how the deficient performance prejudiced his or her defense. This two-prong test requires the defendant to show that his or her counsel's errors were so serious as to deprive him or her of a fair trial. State v. Griffin, 279 Kan. 634, 643, 112 P.3d 862 (2005); State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004). Both the performance and prejudice prongs of the test are reviewed de novo as mixed questions of law and fact. An appellate court must determine whether the district court's findings are supported by substantial evidence and whether the conclusions of law are sufficiently based on the findings of fact. Gleason, 277 Kan. at 644, 88 P.3d 218.
Courts scrutinizing counsel's performance must be highly deferential. To fairly assess counsel's performance, a court must eliminate the distorting effects of hindsight and reconstruct the circumstances of counsel's challenged conduct. There is a strong presumption that counsel's performance fell within a wide range of reasonable professional assistance. The defendant must identify counsel's acts or omissions that fall outside the range of reasonable professional judgment. Strategic choices based on a thorough investigation of the law and facts are virtually unchallengeable. Strategic choices based on less than a complete investigation are reasonable to the extent that reasonable professional judgment supports the limitation on the investigation. 277 Kan. at 644, 88 P.3d 218.
Once a defendant has established that counsel's performance is deficient, he or she must then establish that his or her defense was prejudiced by the deficient performance. Prejudice can be established by showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A court must consider the totality of the evidence before the judge or jury in determining whether prejudice has been shown. 277 Kan. at 644, 88 P.3d 218.
Ineligibility to try a murder case
As alluded to by the district court, this is the only issue raised by Flynn requiring any detailed discussion. Flynn argues that the district court should not have appointed Lonker as her trial counsel because he was ineligible under K.A.R. 105-3-2 and unqualified because of his inexperience in trying severity level 1 felony cases. Flynn argues that Lonker's inexperience is demonstrated by his failure to maintain a written fee agreement; account for his time; file motions or orders for advance payment for expert witness fees, transcripts or documents; sequester witnesses; file memoranda in support of his motions; file motions in limine to exclude evidence; and timely file a notice of appeal.
The district court denied Flynn's claim, concluding that failure to comply with K.A.R. 105-3-2 does not establish ineffectiveness per se. The district court noted that Lonker was Flynn's retained counsel for at least 2 years prior to her trial for Randy Sheridan's murder. The district court also noted that Lonker had experience with a felony drug case, a class B felony trial for rape and kidnapping, extensive experience in medical malpractice, and some experience with personal injury and business litigation. Concluding that the appointing judge had waived any irregularity in Lonker's qualifications, the district court stated:
The record supports the district court's factual findings. Flynn retained Lonker as her counsel in January or February 1993, based on the recommendation from another one of Flynn's attorneys. Lonker represented Flynn during an inquisition and the convening of a grand jury prior to the State filing the charges that led to her convictions. Lonker appeared on Flynn's behalf at the preliminary hearing, which began in April 1995 and continued through June 1995. Lonker also represented Flynn in a separate perjury case.
After Lonker had represented Flynn for over 3 years, Flynn ran out of money to pay Lonker. Two months before Flynn's trial, Flynn and Lonker jointly requested that he be appointed as her counsel. Flynn did not raise any objections regarding Lonker's performance before the district court appointed him to represent her at trial.
Lonker graduated from law school in 1990. Although Lonker admitted that he had not tried 5 felony cases that would have been classified as severity level 1 or 2 felonies, Lonker testified that he had tried a felony drug case, a rape and kidnapping case, and a variety of low-level felonies and misdemeanors prior to the time Flynn retained him. Lonker also testified that he had civil trial experience, mainly in medical malpractice and also in personal injury and business litigation.
Flynn argues that Lonker was ineligible to...
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