Hunt v. State

• Decision Date: 27 December 2013
• Docket Number: No. 107,662.,107,662.
• Citation: 301 P.3d 755,48 Kan.App.2d 1023
• Parties: Paul HUNT, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

48 Kan.App.2d 1023

301 P.3d 755

Paul HUNT, Appellant,

v.STATE of Kansas, Appellee.

No. 107,662.

Court of Appeals of Kansas.

May 24, 2013.

Review Denied Dec. 27, 2013.

Syllabus by the Court

1. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. After a full evidentiary hearing, an appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and, if so, whether those factual findings are sufficient to support the court's conclusions of law. An appellate court must give deference to the district court's findings of fact, accepting as true the evidence and any inferences that support or tend to support the district court's findings. In addition, we give particular deference to the trial judge who observed counsel's performance firsthand.

2. Appellate review of the district court's ultimate conclusions of law is de novo.

3. To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Rather, before counsel's assistance can be found to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was constitutionally deficient. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of the totality of the evidence before the judge or jury. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different.

4. Although testimony in the form of an opinion otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact, witness testimony expressing an opinion on a defendant's overall guilt or innocence is inadmissible as a matter of law because the defendant in a criminal trial has the right to have the jury determine from the evidence whether the defendant is guilty or not.

5. Trial counsel has the responsibility for making tactical and strategic decisions including the determination of which witnesses will testify. Even though experienced attorneys might disagree on the best tactics or strategy, deliberate decisions based on strategy may not establish ineffective assistance of counsel. Strategic choices based on a thorough investigation of the law and facts are virtually unchallengeable. Nevertheless, defense counsel may not disregard pursuing a line of investigation and call it trial strategy.

6. Considering the context within which it was offered, the opinion testimony at issue in this case did not invade the jury's role to determine guilt or innocence; thus, counsel was not deficient for eliciting that testimony as part of the defense trial strategy.

7. Even if the opinion testimony had been inadmissible, the outcome of the trial would not have been different in the absence of such testimony.

8. Generally, all relevant evidence is admissible. Relevant evidence is defined as evidence having any tendency in reason to prove any material fact. There are two elements to relevant evidence: a materiality element and a probative element. Evidence is material if the fact is significant under the substantive law of the case and properly at issue. Evidence is probative if it has any tendency in reason to prove a fact. The issue of whether evidence is probative is reviewed under an abuse of discretion standard whereas the materiality of evidence is reviewed de novo.

9. As a rule of necessity, even relevant evidence may be excluded if the court determines that the probative value of that evidence is substantially outweighed by the risk of unfair prejudice. Appellate courts review this determination for abuse of discretion.

10. Counsel will not be deemed deficient for failing to bring a motion with no legal basis that would have been denied by the district court.

11. The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during a custodial interrogation and the right to remain silent. Law enforcement officers are required to inform suspects of these rights before statements—whether exculpatory or inculpatory—made in a custodial interrogation may be admitted against them. Once a defendant states that he or she wants an attorney, the interrogation must cease until an attorney is present. It is constitutionally impermissible, and thus error, for the State to elicit evidence at trial that a defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers, but instead invoked the constitutional right to remain silent.

12. A constitutional error will be declared harmless if this court concludes beyond a reasonable doubt that the error, in light of the whole record, had no reasonable possibility of changing the result of the trial.

13. Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. If the evidence is overwhelming against the defendant, however, no prejudicial error may be found based upon this cumulative error rule. Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant.

Jason P. Wiske, of Law Office of Jason P. Wiske, L.L.C., of Pittsburg, for appellant.

Natalie A. Chalmers, assistant solicitor general, Andrew D. Bauch, assistant attorney general, and Derek Schmidt, attorney general, for appellee.

Before McANANY, P.J., BUSER and STANDRIDGE, JJ.

STANDRIDGE, J.

Paul Hunt appeals from the district court's decision to deny his K.S.A. 60–1507 motion after an evidentiary hearing. Hunt claims the district court erred in denying his ineffective assistance of counsel claims and in denying his claim for relief under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Because Hunt fails to establish that counsel was deficient or that he was prejudiced by the Doyle violation, we affirm.

Facts

In its opinion affirming Hunt's conviction on direct appeal, our Supreme Court summarized the material facts as follows:

“On Sunday, June 23, 2002, family members of Mary Sue Taylor, a resident of Fort Scott, Bourbon County, Kansas, reported to law enforcement that [Mary Sue] could not be located. [Mary Sue's] vehicle was parked in the driveway, her house was unlocked, the television was on, and items that she would normally take with her were still in the house. Nothing appeared out of the ordinary inside or outside the house. Neighbors reported last seeing [Mary Sue] the morning of June 20. [Mary Sue] had not appeared at her job on June 22 and 23.

“At the time of the disappearance, Hunt and his minor child, Ryan, had been living with [Mary Sue], albeit Hunt and his mother had a volatile, contentious relationship. Hunt told police that he last saw his mother at about 10:40 p.m. on June 20, before he left for work. Upon completing his shift on the morning of June 21, Hunt did not return to his residence before going to the house of his girlfriend, Tammy Rees, in Cartersville, Missouri. His son, Ryan, was also out of town, visiting maternal grandparents. After spending the weekend with [Tammy], Hunt returned to the Fort Scott home about 10:30 p.m. on Sunday, June 23, where the investigation into [Mary Sue's] whereabouts had commenced.

“Several days later, on June 29, [Mary Sue's] body was found floating in a strip pit in Crawford County. The body was wrapped in a gray tarp which was tied with rope and taped, and the tarp-wrapped body was inside a sleeping bag which had also been wrapped with rope and tape. A rope was around the victim's neck. The coroner opined that [Mary Sue] died of ligature asphyxiation and ruled the death a homicide, albeit he could not determine the date of death. The coroner described the manner in which the body had been wrapped and secured with rope and tape as a fairly complicated and involved mechanism.

“Hunt's behavior both before and after the discovery of [Mary Sue's] body caused some suspicion. The weekend of [Mary Sue's] disappearance, Hunt took some of [Mary Sue's] clothing to his girlfriend, saying that his mother wanted the girlfriend to have it. He also brought camping equipment and stored it in his girlfriend's shed. Later testing revealed that two ropes found with the equipment were consistent with the color, construction, and chemical composition of the rope around the victim's neck.

“On the day before the discovery of the body, Hunt and a friend were leaving a convenience store in Missouri when police stopped Hunt's pickup. Hunt declared to his friend: ‘[M]an, I'm in trouble,’ and fled afoot after imploring his friend not to disclose that Hunt was driving. The police did not pursue Hunt, and the friend thought Hunt was concerned about being arrested for driving under the influence.

“The day after the body was discovered, Hunt called his girlfriend to say that he was leaving town. He left his son with a brother but did not tell family members he was leaving. The following day he asked his girlfriend to bring soda and cigarettes to a park in Joplin, Missouri, where he planned to spend the night. He then rode a freight train to Kansas City, but then hitched a ride on a southbound freight train, eventually winding up in Emporia. There, he called his brother, Patrick, on July 4 asking Patrick to get him a motel room and to provide him with a ride back to Fort Scott.

“Hunt did not attend his mother's funeral,...