Macomber v. State

• Decision Date: 10 June 2022
• Docket Number: 124,000,124,006,124,007
• Citation: 510 P.3d 1204 (Table)
• Parties: Stephen Alan MACOMBER, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

510 P.3d 1204 (Table)

Stephen Alan MACOMBER, Appellant,

v.STATE of Kansas, Appellee.

124,000

124,006

124,007

Court of Appeals of Kansas.

Opinion filed June 10, 2022.

Chris Biggs, of Knopp and Biggs PA, of Manhattan, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Schroeder, P.J., Green and Gardner, JJ.

MEMORANDUM OPINION

Per Curiam:

Stephen Alan Macomber alleges that the trial court erred in denying his K.S.A. 60-1507 motion. His K.S.A. 60-1507 motion claims trial and sentencing errors. He argues that his sentence was not valid because sentencing occurred in the wrong county. He asserts that the State violated his right to counsel because the prosecutor had recordings of phone calls he made from jail to his attorney. He claims that his previous counsel was ineffective for failing to raise the issue of prosecution access to attorney-client phone calls. He contends that the trial court abused its discretion by denying his motions to present additional evidence, to amend the judgment, and to hold a new trial. Macomber argues that the trial court erred by not providing funding for an expert witness. And Macomber argues that the trial judge's bias denied him a fair trial. For the reasons set forth below, we reject these contentions. As a result, we affirm the trial court's denial of his K.S.A. 60-1507 motion.

FACTS

This court previously presented the facts of Macomber's underlying convictions in State v. Macomber , No. 107,205, 2013 WL 3455776 (Kan. App. 2013) (unpublished opinion) (Macomber I ) and State v. Macomber , No. 107,206, 2013 WL 3455777 (Kan. App. 2013) (unpublished opinion) (Macomber II ).

Briefly, Macomber shot and killed Ryan Lofton in Lofton's driveway and drove away from the scene. Macomber raises no issues here related to the Shawnee County case resulting from killing Lofton. As Macomber drove away from the incident, Marshall County Sheriff's Deputy Fernando Salcedo pulled him over for driving 77 mph in a 55-mph zone. After a scuffle in which Macomber shot Salcedo twice, Macomber took Salcedo's patrol vehicle. He then happened upon 67-year-old Hedy Saville outside her home. At gunpoint, Macomber instructed Saville to help him hide Salcedo's patrol car in her garage and then held her hostage in her basement. Police arrived at Saville's house and negotiated her successful release. Hours after Saville's release, police used tear gas to force Macomber out of Saville's house and arrested him. Police recovered video from a camera in Salcedo's patrol car which showed Macomber's encounters first with Salcedo and later with Saville. See Macomber I , 2013 WL 3455776 ; Macomber II , 2013 WL 3455777 ; State v. Macomber , No. 108,301, 2014 WL 4723685 (Kan. App. 2014) (unpublished opinion).

In 10-CR-59, regarding the incident with Officer Salcedo, a jury convicted Macomber of attempted first degree murder, aggravated battery on a law enforcement officer, aggravated robbery, aggravated assault on a law enforcement officer, and criminal possession of a firearm. Macomber's total sentence was 738 months in prison. Macomber I , 2013 WL 3455776, at *4-5.

In 10-CR-60, regarding the incident with Saville, another jury convicted Macomber of kidnapping, aggravated burglary, aggravated assault, criminal possession of a firearm, and criminal threat. His aggregate sentence was 265 months in prison. Macomber II , 2013 WL 3455777, at *15.

In July 2011, the trial judge, the Honorable John L. Weingart, handed down sentences of 738-months and 265-months, respectively, for case 10-CR-59 and for case 10-CR-60. Judge Weingart held the sentencing hearing in the Brown County Courthouse for the following reasons: "[T]he defendant was being incarcerated in Shawnee County. Part of the prosecution team was from Shawnee County. And the, the date available for—that was compatible with the counsel's schedule was today, and I was scheduled in Brown County." Macomber did not object as the trial court was scheduling the hearing, nor did Macomber object during the sentencing hearing in Brown County.

At sentencing, Judge Weingart first addressed Macomber's motion to dismiss, motion for a new trial, and motion for testimony. Macomber's motion for a new trial alleged that the prosecution listened to recordings of phone calls that Macomber made from jail to his defense counsel. This motion was Macomber's second such allegation, as he had raised the issue in a motion to suppress any recordings of attorney-client phone calls. At arraignment, Judge Weingart suggested that defense counsel travel to the Shawnee County Jail for in-person visits to avoid telephone calls being recorded.

At the sentencing hearing, Captain Timothy Phelps of the Shawnee County Jail testified that the prosecution subpoenaed "all available telephone calls for Stephen Macomber." Phelps testified that the jail gave all recorded phone calls, including attorney-client calls, to the prosecutor's office. Special Prosecutor Jacqueline J. Spradling testified about the phone calls as follows:

"At approximately October of 2010, the—I have come to learn that the Shawnee County Jail changed their policies when Captain Phelps took over, and instead of issuing all of—all of the phone calls except the defendant's calls to the attorney, when Captain Phelps took over in October of 2010, he now complies with the subpoena so that all of the calls are given to the prosecution. That change in policy was not communicated to me or the district attorney's office.

"And so when we issued our subpoena on March 4, 2011, we believed that we would receive the same type of phone calls as we always have. However, according to the March 4, 2011, subpoena, the new calls included calls from and between an inmate and their attorney. Once I heard the defendant asking for Bill, I stopped listening."

Judge Weingart denied Macomber's motion for a new trial and moved on to sentencing.

On direct appeal, Macomber's pro se brief raised the issue of Spradling listening to attorney-client phone calls. But this court held that Macomber raised the point incidentally, thereby waiving it on appeal. Macomber I , 2013 WL 3455776, at *13.

After Macomber's direct appeal, he petitioned for writ of habeas corpus alleging ineffective assistance of trial and appellate counsel, violation of his speedy trial, fair trial, and due process rights, and cumulative error. Macomber also moved pro se to hire a legal expert to testify to legal professional norms and prevailing standards on his ineffective assistance of counsel claims. The trial court then appointed counsel to represent Macomber on his K.S.A. 60-1507 claims.

Judge Weingart recused himself from the K.S.A. 60-1507 proceedings after calling Macomber "evil" in ex parte communication with the State. Judge Weingart held a status conference on Macomber's motion with some parties appearing in person and some appearing by phone. After the conference, Macomber's counsel hung up, but Macomber was still connected. Judge Weingart had an ex parte conversation with those physically present in the room: the county attorney, county attorney staff and/or a clerk who helped set up the phone, and the court reporter. Judge Weingart later testified about that conversation as follows:

"And essentially my recollection of the conversation was I said something I thanked the clerks or whoever was involved in helping getting the call set up because it was kind of a problem, and then I said that I think I commented about you and said Mr. Desch is a nice man to work with, nice lawyer to work with, something like that, and then I think by and large I think the recollections of Mr. Macomber are correct in terms of the conversation. Something about what is the sum and substance of the 1507, and there was a comment made that competency of Mr. Macomber, and then I think I drew a comparison I said well Mr. Macomber, something about his pleadings are outstanding for pro se pleadings, and Mr. Macomber is very smart, and then I said that Mr. Macomber's problem is he's evil, and I think that was the sum and substance of it. I think, by and large I think Mr. Macomber's recollection is not that far off, except his testimony as to when I developed my opinion if he was evil."

Judge Weingart recused himself from further proceedings concerning Macomber's K.S.A. 60-1507 motion.

At an evidentiary deposition on Macomber's K.S.A. 60-1507 motion, Spradling testified that the Shawnee County Jail "didn't turn over attorney-client phone calls" and that the "phone calls that were turned over were always screened by the legal assistant ... who checked the phone numbers to make sure that there were not attorney calls on there." Spradling testified that because of this process she did not "even get the phone calls that are between attorney and client." She also testified that she offered Macomber's jail phone calls for admission into evidence in a separate Shawnee County case.

The Honorable Richard Smith denied Macomber's petition. Judge Smith rejected Macomber's argument about attorney-client privileged phone calls in part because "the vast majority of jurisdictions throughout the United States temper that privilege with a rule that when a correctional facility posts notices that conversations will be recorded attorney-client privilege is in fact waived."

Judge Smith also dismissed Macomber's complaint that his counsel did not brief the jail phone call issue as a "bald assertion" that counsel was ineffective. Judge Smith saw no basis for Macomber's false assumption that " ‘[h]ad [counsel] properly briefed this issue Macomber's convictions would have been reversed and his charges dismissed.’ " Judge Smith denied Macomber's motion.

Judge Smith also made findings related to Macomber's claim of judicial bias as follows:

"At the evidentiary hearing held by this court Judge Weingart appeared truly regretful for having made any remark of the kind. The judge explained the context of the

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