Morgan v. State, 109,099.

• Decision Date: 24 October 2014
• Docket Number: 109,099.
• Citation: 336 P.3d 922 (Table)
• Parties: Ramona I. MORGAN, Appellant/Cross-appellee, v. STATE of Kansas, Appellee/Cross-appellant.
• Court: Kansas Court of Appeals

336 P.3d 922 (Table)

Ramona I. MORGAN, Appellant/Cross-appellee

v.STATE of Kansas, Appellee/Cross-appellant.

109,099.

Court of Appeals of Kansas.

Oct. 24, 2014.

Review Denied July 24, 2015.

Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.

Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., HILL and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Six years ago, a jury convicted Ramona I. Morgan of two counts of reckless second-degree murder and one count of aggravated battery after a trial in Douglas County District Court. The case was as factually bizarre as it was tragic for the victims and their families. Morgan now contends the lawyers representing her in that trial and on direct appeal failed to satisfy the constitutional standards for adequate representation of criminal defendants, rendering her convictions fundamentally unfair. The district court rejected Morgan's contention after holding an evidentiary hearing. In reviewing the points Morgan has raised in her appeal of that ruling, we find no basis for granting her any relief and, therefore, affirm.

Factual Background and Procedural History

In September 2007, Morgan drove her pickup truck at a high rate of speed through a construction zone on U.S. 59 Highway where a crew was resurfacing the road, striking and killing two workers and injuring a third worker. Morgan's adult daughter Sabrina was a passenger in the truck. Morgan claimed she and Sabrina were being pursued by a band of thugs apparently intent on harming them because of a failed real estate deal in rural Missouri.

Beset with financial problems, Morgan sold her home, including a small farm, in Washington and had put down earnest money to purchase a tract of land near Eldridge, Missouri, after reviewing information about the property on the Internet. Morgan and her daughter drove from Washington to Eldridge to personally inspect the land. At the criminal trial, Morgan told the jury she determined the property was not as represented and wholly unacceptable. According to Morgan, she sought to cancel the sale. Morgan told the jury not long after that, she and her daughter encountered four or five motor vehicles parked on the roadside. The occupants were talking on cell phones and pointing toward Morgan. The motor vehicles then began to chase Morgan and tried to force her truck off the road. Morgan said an occupant of one of the vehicles fired a handgun at the truck. Morgan, however, was able to elude the gang.

Morgan and Sabrina checked into a motel in Gardner, Kansas, at about 5 a.m. but left abruptly just 2 hours later fearful that the marauders had followed them. Unfamiliar with the area, they eventually wound

up on Highway 59 headed toward the construction area. The highway had three traffic lanes but only one was open because of the repaving. One lane was being resurfaced, while some equipment and the workers occupied a second lane. Flaggers stopped traffic, and a pilot car guided vehicles through the remaining lane. Members of the work crew testified at trial that Morgan drove the truck toward them, ignoring the flagger and the pilot car. One of the workers threw a cup of coffee at the windshield to get Morgan's attention. The truck passed through the construction zone without mishap, much to the workers' relief.

But about a half-hour later, the truck returned, again coming toward the workers at an excessive speed. The nearest flagger struck the truck's windshield with her pole in an effort to get the driver to slow down. According to the workers' testimony, the truck then sped up and moved into the area being repaved. The truck hit two workers who died from their injuries. A third worker suffered a leg injury. The truck never slowed or stopped. The workers immediately called for help.

Shortly afterward, Kansas Highway Patrol Trooper Todd Brooks began pursuing Morgan's pickup truck. Even after the trooper engaged the lights and siren on his patrol car, Morgan refused to stop. She stopped only after the truck had run over devices law enforcement officers had placed in the roadway to damage the tires. Forensic examiners recovered blood and other material from the front of the truck that by DNA comparison came from the dead workers. A computer recorder from the pickup truck indicated the vehicle was going 51 miles per hour when it struck the workers.

Morgan testified at trial and recounted the problems with the land purchase and the gang's attack on her and Sabrina. Morgan testified that she drove through the construction zone only once. She told the jurors she was fearful for her own safety and that of her daughter. According to Morgan's account given at trial, she saw barricades, some vehicles parked on or near the road, and a flagger with a pole. She said she slowed down and the woman with the pole “started beating my truck continuously.” Then a man threw what looked like a gas can at the truck. Morgan told the jurors she “associated” those actions with the people who had been chasing her, so she just wanted to get out of there because they were trying to kill her. The windshield on the truck fractured. Morgan said she struck something she believed to be the barricades as she sped away. Morgan adamantly denied seeing other people or striking anyone with her truck.

Sometime later, Morgan saw a car close behind her. Sabrina said it looked like a police car. But Morgan testified she was scared and didn't stop. Morgan told the jurors the car had no light bar on top, like police cruisers do. Trooper Brooks was pursing the pickup truck in his assigned duty vehicle-a sedan-with the emergency lights and siren engaged. The pursuit covered 25 miles at various speeds that reached 95 miles an hour. During the pursuit, Sabrina placed a cell phone call to 911 to try to confirm that a bona fide law enforcement officer was behind them. Morgan told the jurors she stopped the pickup truck when she approached a roadblock and could readily identify a police officer there. By that time, Morgan had driven over stop sticks law enforcement officers had placed on the road causing the front tires on the pickup truck to go flat.

During the prosecution's case, Sabrina testified briefly under subpoena and acknowledged being an unwilling witness. In very general terms, Sabrina confirmed the outline of the events Morgan would recount in her testimony. Although Sabrina's demeanor in testifying is difficult to assess from the transcript, comments in the record from both the prosecutor and Morgan's trial lawyer suggest they considered Sabrina to be a weak, unpersuasive witness.

There was no evidence presented to the jurors at trial confirming the testimony of Morgan and Sabrina about the Missouri gang or its collective behavior.

The Douglas County district attorney charged Morgan with two counts of reckless second-degree murder in the deaths, then violations of K.S.A. 21–3402, and one count of reckless aggravated battery for the injured worker, then a violation of K.S.A. 21–3414. The jury convicted Morgan of those charges. The district court sentenced her to a controlling term of 315 months in prison. Morgan filed a direct appeal of her convictions. This court affirmed in all respects. State v. Morgan, No. 101,769, 2010 WL 2245604, (Kan.App.) (unpublished opinion), rev. denied 290 Kan. 1101 (2010).

Morgan then filed a motion, as provided in K.S.A. 60–1507, challenging the convictions on the grounds that the lawyers representing her at trial and on direct appeal did not satisfy the standards for constitutionally adequate representation, thereby violating the right to counsel guaranteed in the Sixth Amendment to the United States Constitution. In August 2012, the district court held an evidentiary hearing on the motion and issued a lengthy written decision rejecting each of the numerous claims Morgan raised. Morgan has timely appealed the denial of her 60–1507 motion, and that is what we have in front of us. On appeal, Morgan has narrowed her focus to three specific points. After outlining the legal principles governing review of 60–1507 motions, we take up those points, supplementing the factual and procedural history as necessary.

The State has filed what it characterizes as a cross-appeal in which it suggests the district court's rationale or reasoning was unsound in several respects. Not surprisingly, however, the State doesn't quarrel with the result. The State categorically prevailed on Morgan's 60–1507 motion—the district court rejected each and every point she asserted. Appellate courts review adverse judgments. A party prevailing in the district court typically cannot appeal some aspect of how a favorable ruling or judgment was reached. See ASARCO, Inc. v. Secretary of Labor, 206 F.3d 720, 722 (6th Cir.2000) (“It is a well settled principle that a prevailing party cannot appeal an unfavorable aspect of a decision in its favor.”); Abbs v. Sullivan, 963 F.2d 918, 924 (7th Cir.1992) (“[A] winner cannot appeal a judgment merely because there are passages in the court's decision that displease him.... [Citations omitted.] He can appeal only if the judgment gives him less relief than he considers himself entitled to.”); Watson v. City of Newark, 746 F.2d 1008, 1010–11 (3d Cir.1984), We, therefore, dismiss the State's cross-appeal. We do, however, consider the arguments and authorities made in the ostensible cross-appeal in determining whether Morgan has asserted any reversible error.

Analysis

Legal Principles

When reviewing the denial of a 60–1507 motion after a full evidentiary hearing, an appellate court accepts the district court's findings of fact to the extent they are supported with substantial competent evidence. The appellate court exercises unlimited review of the determinative legal issues. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).

To demonstrate constitutionally ineffective...