State v. Chamberlain, 55365

• Decision Date: 02 December 1983
• Docket Number: No. 55365,55365
• Citation: 672 P.2d 604,234 Kan. 422
• Parties: STATE of Kansas, Appellee, v. James L. CHAMBERLAIN, Appellant.
• Court: Kansas Supreme Court

Page 604

672 P.2d 604

234 Kan. 422

STATE of Kansas, Appellee, v. James L. CHAMBERLAIN, Appellant.

No. 55365.

Supreme Court of Kansas.

Dec. 2, 1983.

Camille Nohe, Topeka, argued the cause and was on the brief for appellant.

Gene M. Olander, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

MEMORANDUM OPINION

PER CURIAM:

James L. Chamberlain was convicted on April 1, 1980, by a jury in Shawnee County District Court of felony murder, K.S.A. 21-3401, and aggravated robbery, K.S.A. 21-3427. He was sentenced to life imprisonment for the murder and fifteen years to life for the robbery, the sentences to be served consecutively.

No post-trial motions were filed. Trial counsel filed a notice of appeal and secured an order directing the preparation of a transcript at public expense, since defendant was indigent. The appeal was not docketed here within ten days, as was required by Rule 2.04, 228 Kan. xxxix. Defendant's attorney took no further action, and for reasons unrelated to this case was subsequently suspended indefinitely from the practice of law in this state. State v. Nelson, 233 Kan. 473, 663 P.2d 303 (1983).

In February 1983 present counsel filed a motion to docket the appeal out of time, and we granted leave to do so. Briefs were then filed and the matter was argued and submitted. Only one issue was raised: whether trial counsel was so ineffective that defendant was deprived of his constitutional right to the effective assistance of counsel.

The standards upon which a claim of ineffective assistance of counsel must be considered and determined were stated earlier this year by Justice McFarland in our unanimous opinion in State v. Kendig, 233 Kan. 890, 895-96, 666 P.2d 684 (1983):

"Recently in State v. Miesbauer, 232 Kan. 291, 654 P.2d 934 (1982), this court reiterated the applicable rules previously stated in State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981), as follows:

" ' "The rules relative to determination of effective assistance of counsel were stated in Schoonover v. State, 2 Kan.App.2d 481, Syl. pp 2-4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978), and iterated in State v. Voiles, 226 Kan. 469, 470-471, 601 P.2d 1121 (1979), as follows:

" ' " 'The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed.

" ' " 'Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant's Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage in it, and which causes the client's conviction or otherwise works to the client's substantial disadvantage, is also a deprivation of the constitutional guarantee of "effective" counsel.

" ' " 'In applying the foregoing standard to counsel's performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney's services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells.' 229 Kan. at 389 ." ' 232 Kan. at 299, 654 P.2d 934.

"Defendant, on appeal, points to several alleged instances of ineffective assistance of counsel. Some of these arise from the wisdom of hindsight. As stated in Cook v. State, Ind.App., 403 N.E.2d 860 (1980):

" 'It is one of the characteristics of human experience that hindsight often reveals alternative courses of conduct that may have produced different results if only they had been employed. Hindsight, however, is not the vantage point from which we judge allegations of incompetence. Thomas v. State, (1969) 251 Ind. 546, 242 N.E.2d 919. It may be that had defendant's counsel on appeal conducted the defense at trial, he would have done things differently. Whether or not he would have fared better before the jury is a matter of conjecture. Where experienced attorneys might disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective counsel. Crocker v. State, (1978) Ind.App. , 378 N.E.2d 645.' 403 N.E.2d at 868."

The Sixth Amendment right to the effective assistance of counsel was also discussed recently by the United States Court of Appeals, Tenth Circuit, in United States v. King, 664 F.2d 1171 (10th Cir.1981):

"It is now settled that the Sixth Amendment entitles a criminal defendant to more than mere legal representation; an accused has the right to the effective assistance of competent counsel. Powell v. Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 60, 77 L.Ed. 158 (1932). If a defendant's lawyer does not exercise the skill, judgment, and diligence of a reasonably competent attorney, then that right has been violated. United States v. Golub, 638 F.2d 185, 187 (10th Cir.1980); Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). Significantly, this Sixth Amendment guarantee is so fundamental that its deprivation will mandate reversal of a conviction even absent a showing that the resulting prejudice affected the outcome of the case. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1941); Golub, 638 F.2d at 190; United States v. Porterfield, 624 F.2d 122, 124-25 (10th Cir.1980)." 664 F.2d at 1172.

Defendant's capable appellate counsel points out many errors and omissions by trial counsel, including his failure (1) to challenge the legality of defendant's warrantless arrest in his own home, absent exigent circumstances, (2) to move to suppress incriminating evidence seized "incident" to that arrest, (3) to request a Jackson v. Denno hearing prior to trial, (4) to move to suppress defendant's confession, and (5) to object to the introduction into evidence of various prejudicial exhibits. Present counsel also points to trial counsel's repeated elicitation of evidence which was prejudicial and incriminating, and to counsel's persistence in this practice even in the face of warnings from the prosecutor. Much evidence to support the suggested motions and objections is found within the trial record, and law to support appellant's position is both familiar and plentiful. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, ...