State v. Ferguson, 68131

• Decision Date: 10 December 1993
• Docket Number: No. 68131,68131
• Citation: 864 P.2d 693,254 Kan. 62
• Parties: STATE of Kansas, Appellee, v. Lena FERGUSON, Appellant.
• Court: Kansas Supreme Court

Page 693

864 P.2d 693

254 Kan. 62

STATE of Kansas, Appellee, v. Lena FERGUSON, Appellant.

No. 68131.

Supreme Court of Kansas.

Dec. 10, 1993.

Syllabus by the Court

1. As a general rule, whether the dissatisfaction of an indigent accused with a court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide.

2. Irreconcilable conflict between a defendant and his or her attorney may, under certain circumstances, require the appointment of substitute counsel in order to protect a defendant's Sixth Amendment right to effective assistance of counsel.

3. The district court did not abuse its discretion in refusing to appoint substitute counsel where the irreconcilable conflict resulted from the defendant's refusal to cooperate or communicate with trial counsel.

4. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

5. An error of constitutional magnitude cannot be held to be harmless unless the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the results of the trial.

Jessica R. Kunen, Chief Appellate Defender, argued the cause and was on the briefs for appellant.

David B. Debenham, Asst. Dist. Atty., argued the cause, and Joan M. Hamilton, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

ALLEGRUCCI, Justice.

This is a direct appeal by the defendant, Lena Ferguson, from her jury convictions of one count of aggravated arson and one count of felony murder. She was sentenced to a term of 15 years to life for aggravated arson to run concurrently with a term of life imprisonment for felony murder.

On January 13, 1991, David Summers died from smoke and heat inhalation along with some carbon monoxide asphyxiation. His body was found in the living room of his house at 3116 SE Dupont in Topeka, where there had been a fire. The autopsy showed that Summers had been alive and breathing for a few minutes while the fire was burning. Summers' chest and upper abdomen "showed no burning because the body had been laying face down in the fire."

The defendant shared the house with Summers, her former husband. In the fall of 1990, Summers became sexually involved with Margaret Matthews. Summers told Matthews that he and his former wife were roommates. Matthews testified that she called Summers at his house approximately three times a week and that sometimes the phone was answered by a woman who threatened Matthews and refused to allow her to speak with Summers.

Summers spent the night of January 12-13, 1991, with Matthews in a motel. Between 1:30 and 3:00 a.m., Matthews telephoned Ferguson several times from the motel room. First Matthews called Ferguson and asked her if she was Dave's wife; Ferguson hung up. Matthews began the second call by saying to Ferguson, "Dave wants to speak to you," and handing the telephone to him. After speaking briefly to Ferguson, Summers hung up.

At approximately 10:00 a.m. on January 13, 1991, a friend went to Ferguson's house to pick her up and take her out to breakfast. Although the friends had agreed some days earlier to eat out together on that Sunday morning, Ferguson refused to go. Neither Summers nor his car was at the house. Near the sofa there was a quilt partially covering what looked like a plastic milk container. The friend noticed it because it looked out of place in Ferguson's normally neat house.

Sometime around noon to 12:30 p.m., a passerby saw black smoke coming from the house at 3116 SE Dupont. From a nearby gasoline station, he called 911. He went back to the house and knocked and shouted to alert any occupants of the danger. He stayed until the fire department arrived, and he did not see anyone leave the house.

Ferguson's sister testified that Ferguson arrived at her apartment at approximately 1:00 p.m. Ferguson was "very frantic." At trial the sister testified that Ferguson had said that "something was on fire" and told her to dial 911. Randy Mills, a police officer, testified that the sister had told him that Ferguson "had said something similar to ... 'I burned the son of a bitch over there.' "

At 12:43 p.m., Ferguson showed up at the Topeka Police Department. When she entered the patrol office, she was smoking a cigarette. The officer told her no smoking was permitted in the police department. Ferguson stepped back into the lobby and put the cigarette out in an ashtray. She reentered the patrol office. When the officer at the desk asked Ferguson how he could help her, Ferguson responded, "I just killed a man. I set him on fire." He asked her where, and Ferguson said at 3116 SE Dupont. He checked the monitor and verified that a fire had been reported at that address. The desk officer telephoned for the detective on duty, and then he escorted Ferguson to the detective division.

There Officer Mills introduced himself to Ferguson. Ferguson replied in the negative when he asked her if she needed a drink of water, if she needed to use the restroom, and if she needed any medical assistance. Ferguson asked Officer Mills "if he was dead," and Mills told her that Summers was dead. Ferguson said, "Didn't mean to kill him," "Didn't want to," and "I'm tired of this," or "I'm tired of it."

In the presence of Ferguson, Mills told a female officer that Ferguson's clothing was to be confiscated and photographs were to be taken of Ferguson for the purpose of documenting any visible wounds she might have. Ferguson said, "I don't have no injuries." The female officer testified that she did not see any bruises, abrasions, or cuts on Ferguson. The officer also testified that Ferguson's clothing smelled smoky, like a house fire rather than like cigarette smoke.

An investigator from the Topeka Fire Department testified that the fire had been set. Indications of a set fire included his eyes stinging due to the presence of gasoline, a faint odor of gasoline around the body of David Summers, and a pattern around the body where a flammable liquid had been poured and burned. A carpet sample taken from near Summers' left leg contained gasoline. A plastic milk container about half full of gasoline was found around the corner from the living room in the kitchen. The soot which had been deposited on the windows was soft, which indicates a free-burning, fast fire rather than a smoldering one. "An open flame would ignite a free burning fire," according to the investigator.

The police investigation of the house revealed some clothing outside the back door of the house. Police also found some items, including shoes, in the bathtub.

Ferguson first contends on appeal that her Sixth Amendment right to counsel and her Fourteenth Amendment right to a fair trial were violated because the district court would not permit her appointed attorney to withdraw. She asserts that she "had a viable claim of self defense." The contention is that her defense went undeveloped and unpresented due to the irreconcilable conflict between Ferguson and counsel.

Ferguson was in custody from January 13, 1991. The order appointing counsel for her was signed the following day. On March 29, counsel sought a continuance of the trial setting on the ground that Ferguson was unable, due to emotional turmoil, to discuss with counsel "details surrounding the event." On April 16, defense counsel filed a motion seeking permission to withdraw "and further for an order appointing counsel who is not employed by the Public Defender as substitute counsel." Counsel stated in the motion:

"In support of her motion the Accused shows the Court that she has no confidence in her present counsel or in any counsel who is employed by the Public Defender's office. Said conflict and absence of confidence is so serious that the attorney-client relationship is so adversely affected that there is effectively no counsel at all for the accused."

At the hearing on the motion to withdraw, counsel stated that the motion had been filed at Ferguson's request. Counsel stated:

"I have exhausted my ability to resolve and to satisfy Ms. Ferguson that I can effectively represent her. She is voicing the concern that because we are employees of the State, that we have an inherent conflict of interest--and those aren't her words, but that's the import of what she is saying-- in representing her as a defendant charged by the State. But, it goes deeper than that, and it's difficult for me or, in fact, I am unable to enlighten the Court as to what I see as the problem. I don't know. But, Ms. Ferguson, in my opinion, is sincere in her beliefs. I believe that she has been sincere in working with me to try to overcome the reservation she has. She has talked to me. She has not avoided me. She has been willing to discuss issues and problems, but there is something very basic in her feelings right now which leads me to believe that she does not have the confidence in me or my staff to permit her to put on the defense that she has. And I can represent to the Court that in my professional opinion she has a defense in this case which a jury should be allowed to decide."

Ferguson testified that at the time of the hearing she did not have money to hire a lawyer, but that she had a workers compensation claim pending from which she expected to obtain some money. She was unable to estimate when her compensation claim might be settled. In subsequent proceedings, it was never represented to the district court that Ferguson was financially able to hire counsel.

When asked about reasons why she did not want to be represented by her appointed counsel, Ferguson principally responded that a lawyer who was paid by the government could not...