LaPointe v. State
| Decision Date | 28 August 2009 |
| Docket Number | No. 100,028.,100,028. |
| Citation | 214 P.3d 684 |
| Parties | Jack R. LaPOINTE, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Richard Ney, of Ney, Adams & Sylvester, of Wichita, for appellant.
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six, attorney general, for appellee.
Before MALONE, P.J., GREEN and STANDRIDGE, JJ.
Jack LaPointe appeals from the trial court's judgment denying his ineffective assistance of counsel claims in his K.S.A. 60-1507 motion without holding an evidentiary hearing. LaPointe argues that the trial court erred in failing to hold an evidentiary hearing on the following claims: (1) that his trial counsel was ineffective in failing to object to testimony concerning the reliability of eyewitness identification given by the lead detective in the case; (2) that his trial counsel was ineffective in failing to file a notice of alibi with the correct address of the main alibi witness; (3) that his trial counsel was ineffective in failing to request further DNA testing; and (4) that his trial counsel was ineffective in failing to object to prosecutorial misconduct. As to LaPointe's first three ineffective assistance of counsel claims, we determine that factual issues exist as to whether the conduct by LaPointe's trial counsel was deficient and whether LaPointe was prejudiced by this conduct. As a result, we reverse and remand for an evidentiary hearing on those claims. As to LaPointe's fourth claim of ineffective assistance of counsel, however, we determine that there is not a substantial issue as to whether LaPointe's trial counsel was ineffective. As a result, we affirm the trial court's decision on this ineffective assistance of counsel claim.
In addition, LaPointe appeals from the trial court's denial of his request for production of hairs and clothing for DNA testing as discovery evidence in the K.S.A. 60-1507 proceeding. LaPointe raises the following two arguments as to why the trial court's decision on this issue was erroneous: (1) that under the civil discovery statutes, specifically K.S.A. 60-234(a), he was entitled to production of the hairs and clothing for DNA testing; and (2) that he had a due process right to access potentially exculpatory evidence. Nevertheless, we determine that the discovery rules are inapplicable in a K.S.A. 60-1507 hearing. Moreover, based on the current procedural posture of this case, we determine that the question of whether LaPointe had a due process right to access the hair and clothing for DNA testing is not properly before this court. In the event that the trial court finds on remand that LaPointe's trial counsel was deficient in not requesting further DNA testing, then the court should consider whether LaPointe is entitled to obtain the hair and clothing for DNA testing. Accordingly, we affirm in part, reverse in part, and remand.
In his underlying criminal case, LaPointe was found guilty by a jury of aggravated robbery and aggravated assault. LaPointe's convictions were based upon a robbery of a Payless Shoe Source (Payless), which was located in a strip mall in Roeland Park, that occurred on October 30, 2000.
Around 8 p.m. on October 30, 2000, Carrie Wellman was checking out customers at the Payless store when a man walked in with a gun and proceeded to rob the store. Monica Ortiz was shopping in the Payless store with her three children and was completing her purchase when the robber walked in the store. The robber pointed the gun in Ortiz' face and instructed her not to look at him. The robber also pushed Ortiz' 5-year-old daughter to the ground when she tried to run to her mother. After Wellman gave the robber approximately $1,000 in a plastic shopping bag, he ran from the store. Wellman then called the police.
Carrie Delaney and Brandy Loveall had been shopping at a store in the strip mall and were driving out of the parking lot when Loveall spotted a man carrying a gun and walking fast on the sidewalk. Loveall made eye contact with the man before he passed her and ran between two buildings. According to Loveall, Delaney was driving the car when Loveall saw the man.
When the police arrived at the scene, several officers went to a nearby apartment complex after learning that the robbery suspect had been seen there. Upon arriving at the apartment complex, Officer Eric Thompson saw a woman in the parking lot holding cash in her hand. The woman told Thompson that a Caucasian man had just run through the breezeway and had dropped the money on his way up the stairs. Thompson took the money, which was $138, from the woman and asked her to remain there. Thompson ran through the breezeway to look for the robber but was unable to find him. When Thompson returned to his patrol car, the woman was no longer there.
During their search of the apartment complex area, officers found a plaid shirt and hat in a breezeway and a pair of cloth gloves in the front of one of the buildings. In addition, a police dog that had been brought to the apartment complex to track the suspect's scent pulled a blue and white bandana from underneath a car parked at the complex.
Detective Karen Borstelman interviewed Loveall on November 1, 2000, and completed a composite sketch of the man she saw carrying a gun on the evening of October 30, 2000. Loveall described the man as Caucasian and standing approximately 6 feet tall, wearing a blue and white bandana on his head, with blond hair sticking out from underneath the bandana. The man was wearing a blue and white flannel shirt and was carrying a double-barreled sawed-off shotgun. Loveall further described the man as being in his early 30's and having a slender build. By the time of trial, Loveall had forgotten some of the details she had given Borstelman and described the man she saw as Caucasian and wearing a bandana on his head, wearing a coat, and carrying a gun. Moreover, Loveall could not recall whether the headlights of Delaney's car were illuminating the shadowy area in which the man was walking. Nevertheless, at trial, Loveall identified LaPointe as the man she had seen on the evening of October 30, 2000.
The other witnesses' descriptions of the robber differed somewhat from Loveall's description. According to Wellman, the man was Caucasian, was in his mid- to late-20's, stood about 6 feet tall, wore a plaid jacket and a bandana over part of his face, and had blond spikey hair with dark roots. Ortiz described the robber as a Caucasian man who was in his mid-20's and of slender build. Ortiz testified that the robber was wearing a cap and had put a handkerchief over his face when he came into the store. Ortiz' 11-year-old daughter, Monserrat Santos, described the robber as a Caucasian man with blue eyes and a muscular build. According to Santos, the robber had blond spikey hair, stood about 6 feet tall, had placed a bandana over his nose and mouth shortly after he had entered the store, and had not been wearing a hat.
Delaney was also interviewed by a detective and gave a description of the man, but she was unable to make a composite sketch. Delaney described the man as Caucasian and standing 5'10" tall, having a skinny build, wearing nothing on his head, wearing a blue flannel-type shirt, and carrying a white plastic trash bag. Delaney did not see the man carrying a weapon. According to Delaney, she was shown a photo lineup but was unable to make a positive identification. Delaney testified that she had suffered a stroke, which had affected her short-term memory, during the first part of October 2000.
During the investigation of the robbery, one of the officers had commented that an individual named Joseph Seeber seemed to match the suspect's description and lived in the apartment complex just north of the Payless store. A photo lineup was then put together with Seeber's picture.
On November 9, 2000, Detective Scott Atwell showed Wellman the photo lineup. In looking at the photographs, Wellman used her hand to cover up the lower half of each of the faces. After approximately 5 minutes, Wellman identified the suspect in photograph number 1 as the robber. Nevertheless, according to Atwell, Wellman indicated that the person depicted in photograph 1 had a fatter face and longer hair than the robber. At trial, Wellman acknowledged that she was unsure of her pick in the photo lineup. Moreover, Wellman testified that she would not recognize the man who robbed her if she saw him again. The person in photograph 1 was Seeber, the target suspect in that photographic lineup.
On November 15, 2000, Atwell showed the same photo lineup to Loveall. Nevertheless, Loveall immediately stated that all the individuals in the photos were "way too young."
Despite Wellman's identification of Seeber in the photo lineup, the police did not attempt to contact Seeber to question him about the robbery. When questioned at trial about why he had not investigated Seeber further, Atwell testified that he had "absolutely no confidence in the way" Wellman picked out photograph 1. Moreover, Atwell explained that he had received a laboratory report stating that Seeber's fingerprints were not those on the latent fingerprint cards collected at the Payless store. Atwell acknowledged, however, that the latent prints did not match LaPointe's fingerprints either. Atwell further testified that he had confidence in Loveall's identification "because she had observed the suspect under no stress whatsoever" and had seen the suspect bare-faced.
During November 2000, Michael Norton was taken into FBI custody on suspicion of bank robbery. During his interview, Norton told FBI agents that he had been told by LaPointe that...
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