State v. Blevins
| Decision Date | 10 December 2021 |
| Docket Number | No. 118,639,118,639 |
| Parties | STATE of Kansas, Appellee, v. Bret BLEVINS, Appellant. |
| Court | Kansas Court of Appeals |
Nicholas David and Cooper Overstreet, of The David Law Office LLC, of Lawrence, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, C.J., Malone and Cline, JJ.
Bret Blevins and his girlfriend, Tammy Akers, were the only occupants of a vehicle involved in a fatal car crash. They both drank alcohol and used methamphetamine before the crash, and each claimed the other was driving. Blevins was arrested after he left the scene of the accident.
Blevins claims he did not receive effective assistance of counsel at his criminal jury trial because of his attorney's conflicts of interest. Tammy and her husband paid Tammy's longtime attorney a flat fee of $30,000 to represent Blevins once criminal charges were filed. This attorney also represented Tammy in another matter while representing Blevins. It does not appear Blevins' attorney investigated Tammy's involvement in the crash. He also did not hire an accident reconstructionist, DNA expert, or medical expert, despite Blevins' requests that he do so. At trial, Blevins' attorney blamed Tammy for the crash, arguing that she was the driver.
A jury convicted Blevins of several crimes arising out of the crash. He appealed his convictions and another panel of this court remanded to the district court for a Van Cleave hearing on Blevins' claim of ineffective assistance. See State v. Van Cleave , 239 Kan. 117, 716 P.2d 580 (1986). The district court denied Blevins' claim, finding no conflict and, if a conflict existed, Blevins waived it. Blevins now challenges the district court's findings on remand. We find Blevins' attorney had several conflicts of interest which adversely affected his representation and which Blevins did not waive. We remand the matter with directions for a new trial, with different counsel.
Blevins and Tammy were the sole occupants of a Cadillac Escalade which sped through a residential neighborhood, ran a stop sign, and crashed into a van. One of the witnesses to the collision saw Blevins exit through the Escalade window, stumble around acting disoriented, then take off running. That witness followed Blevins and assisted law enforcement in locating him.
Officer Tristan Fellows found Blevins a couple of blocks away, injured and laying on the ground. Blevins smelled strongly of alcohol and had bloodshot eyes. Fellows arrested Blevins and took him back to the scene.
Emergency personnel transported Blevins, Tammy, and the three surviving occupants of the van to the hospital. Two of the van's occupants did not survive the crash. During her ride, Tammy said Blevins was driving. She also stated that she and Blevins fought over the keys, and Blevins had been drinking before the crash. She did not disclose that she had also been drinking and using methamphetamine.
Officer Fellows accompanied Blevins to the hospital. He read Blevins an implied consent advisory to test Blevins' blood alcohol content. Blevins refused the test, so Detective Michael Amy obtained a search warrant to gather a sample of Blevins' blood. Unaware that the search warrant authorized the seizure of two vials of blood, Detective Amy directed hospital staff to seize three vials of Blevins' blood. Blevins' blood tested positive for methamphetamine and had an alcohol content of around 0.124.
After the accident, Tammy introduced Blevins to her long-time attorney, Carl Maughan. Tammy and her husband, Greg Akers, paid Maughan a flat fee of $30,000 to represent Blevins. This fee did not cover Maughan's expenses. Blevins first hired Maughan and Maughan's associate attorney to represent him at trial. After that associate left the firm, Maughan became Blevins' sole attorney.
At his preliminary hearing, Blevins argued the State's charges should be dismissed because he claimed Tammy was driving the Escalade when it crashed. The district court denied Blevins' request and bound Blevins over on all charges.
After the preliminary hearing, detectives completed other forensic testing. These tests revealed Tammy's DNA was located on the steering wheel airbag but Blevins' DNA was not. The passenger side airbag had a mixture of two peoples' DNA but Blevins' DNA was excluded, and the results for Tammy's DNA were inconclusive, so she could not be included or excluded as a contributor. Another test showed the driver's side airbag contained the DNA of two individuals on the center of the airbag. Blevins could not be excluded as one of those individuals. Tammy was, however, excluded as a major contributor to that DNA profile.
At a pretrial motion hearing, Maughan told the district court he had represented Tammy before and explained that Tammy introduced him to Blevins for this case. Maughan told the court he had received written waivers from both Blevins and Tammy, which the court instructed Maughan to file. Maughan neglected to file these waivers, and he did not present them for review by the district court.
Before trial, Blevins moved to suppress the results of the blood alcohol and DNA tests. Blevins also moved to suppress Tammy's testimony, claiming she was unqualified to testify about the accident since the evidence suggested she was "highly intoxicated with and under the influence of alcohol and methamphetamines at the time of the events. ..." He alleged Tammy may have some criminal liability based on her actions and asked the court to provide counsel to advise her on her Fifth Amendment privilege against self-incrimination. When arguing this motion, Maughan stated:
The court denied all three motions to suppress.
At trial, Blevins maintained that Tammy was driving when the crash occurred, and the DNA evidence corroborated that account. Blevins testified he was arguing with Tammy for most of the day. He said they drove Tammy's car, the Escalade, from a friend's house to a Wendy's restaurant to pick up food. After leaving Wendy's, the couple continued fighting, and Tammy eventually threw a ring Blevins bought for her at Blevins. Then, according to Blevins, he pulled over and moved to the backseat of the car to look for the ring, when he suddenly felt the car accelerate and crash. Blevins did not claim he saw Tammy jump into the driver's seat, but he "assum[ed]" she did.
Several witnesses to the crash testified, none of whom saw who was driving the Escalade. One of the witnesses assumed Blevins was the driver, based on where his body landed after the crash. Another witness testified he may have seen a man in the back seat. A third witness provided inconsistent testimony on whether Blevins exited the vehicle out of the passenger or driver's side window.
The State presented surveillance footage from Wendy's, taken shortly before the crash, which Tammy used to identify herself as the passenger of the Escalade. She also testified that Blevins was driving the Escalade when they left Wendy's and that he was driving when the Escalade hit the van.
Maughan cross-examined Tammy at trial over her drug use and drinking before the crash. She admitted she was "high" during the accident. She also admitted her husband Greg would be mad at her if he knew she had been "doing methamphetamines" or had a boyfriend. She denied that Blevins was still her boyfriend, claiming they were just friends at the time of the crash.
Maughan called Blevins' probation officer to testify. This testimony was seemingly used to provide context for why Blevins would flee the scene of the crash and refuse a blood test—a positive drug test could jeopardize his probation.
The jury found Blevins guilty on all counts, even those charged in the alternative. The district court imposed a sentence for only the more serious of the alternative charges, including the two counts of second-degree murder and four counts of aggravated battery. The district court ordered Blevins to serve 728 months in prison and 6 months in jail.
Blevins directly appealed and moved for the appointment of appellate counsel. He later moved to stay appellate briefing and remand for a Van Cleave hearing in the district court to determine whether he was denied effective assistance of counsel based on Maughan's conflicts of interest. The State first opposed this motion, claiming both Blevins and Tammy waived the conflicts in writing. After this court denied Blevins' motion, the State moved for remand, noting it could not locate Blevins' written waiver and neither could Maughan. This court granted the State's motion.
At the Van Cleave hearing, Blevins testified he was incarcerated while his case was pending. He said he originally applied for a public defender, but one never showed up. He explained that his family and friends searched for an attorney to represent him and, two or three weeks after his arrest, Maughan showed up to visit him in jail. Blevins testified Maughan told him that Tammy and her husband had referred Maughan to represent Blevins. Blevins described Tammy as his girlfriend and admitted he was having...
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