State v. Housworth

• Decision Date: 02 December 2022
• Docket Number: 122,136
• Parties: State of Kansas, Appellee, v. Andrew Joseph Housworth, Appellant.
• Court: Kansas Court of Appeals

State of Kansas, Appellee, v. Andrew Joseph Housworth, Appellant.

No. 122,136

Court of Appeals of Kansas

December 2, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Leavenworth District Court; Gunnar A. Sundby and Gerald A. Kuckelman, judges.

Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Hill and Schroeder, JJ.

MEMORANDUM OPINION

Per Curiam:

Andrew Joseph Housworth timely appeals from his jury trial conviction for aggravated battery, asserting multiple errors (1) His trial counsel was ineffective; (2) he was not competent to stand trial; (3) his right to counsel under the Sixth Amendment to the United States Constitution was denied based on his placement in an isolation cell around the time of trial; and (4) cumulative error. After a careful review of the record, we find no error by the district court. We affirm Housworth's conviction.

Facts

Housworth and Charles Bednarek were involved in a scuffle after the two briefly argued inside the store at a gas station. Bednarek questioned Housworth about cutting line, and Housworth then threatened Bednarek before leaving the store. Housworth returned, continued to rant, and left again. Bednarek then left the store to fill a propane tank outside where Housworth confronted him once more. The two exchanged heated words before Housworth charged at Bednarek. Ultimately, Bednarek was stabbed in the chest during the scuffle.

Bednarek did not initially notice he had been stabbed but realized it when someone brought a towel to stop the bleeding. He described the wound as roughly one inch wide by four inches deep. As a result of his injury, Bednarek was kept overnight in a trauma center for observation and missed six weeks of work.

The heated discussion and attack were captured on video from multiple surveillance cameras and shown to the jury at trial. Housworth admitted to arguing with Bednarek and attempting to fight him behind the gas station. But Housworth claimed Bednarek was the aggressor. Housworth denied having a knife but admitted he had his keys in his hands at the time of the fight. A jury convicted Housworth of aggravated battery for inflicting great bodily harm on Bednarek.

Housworth filed several posttrial motions. Housworth's trial counsel, John Bryant, filed two motions for new trial on Housworth's behalf, generally asserting:

• Housworth was not afforded the presumption of innocence based on his appearance in jail clothing and the presence of an officer in the courtroom;

• Housworth did not have sufficient time or place to meet with counsel to prepare for trial • Housworth was not able to fully participate in his defense because he did not have access to his notes in the week before trial;

• Housworth was not competent to stand trial;

• jury deliberations should have been suspended until the jury could review the security video; and

• Housworth should have new counsel appointed as he intended to raise issues of Bryant's ineffectiveness.

Housworth filed two pro se motions for new trial and judgment notwithstanding the verdict, largely alleging ineffective assistance of counsel, asserting:

• Bryant did not present the defense they had discussed;

• Bryant failed to call a medical expert to rebut Bednarek's testimony about his wound;

• Bryant failed to call other witnesses Housworth requested;

• Bryant failed to present evidence Housworth had been found not guilty by means of mental disease or defect in a prior case;

• Bryant's busy caseload created a conflict of interest because he could not adequately prepare for Housworth's case;

• Housworth was denied access to his attorney for 10 days while in isolation;

• the jury did not have access to the video evidence during deliberations;

• the video evidence proved Housworth was acting in self-defense;

• Bednarek's testimony about his wound was improper expert testimony;

• Housworth was not competent to stand trial;

• it was a conflict of interest that Leavenworth County did not have a public defender's office; and

• the jury was not instructed on simple battery as a lesser included offense.

The district court appointed Clinton Lee to represent Housworth on his posttrial motions. Lee filed a supplemental brief in support of Housworth's various motions for new trial, generally alleging Bryant was ineffective and the jail interfered with Housworth's right to counsel.

The district court held multiple hearings on Housworth's posttrial motions. At the first hearing, Karen Morris, a mental health nurse from the Leavenworth County Jail, testified Housworth had been placed on suicide watch approximately a week before trial and was held in an isolation cell due to a self-imposed hunger strike. Bryant also testified Housworth was kept in isolation prior to trial.

At the second hearing, Housworth called Dr. Robert Barnett, a clinical psychologist, to testify about his competency. Dr. Barnett conducted an evaluation of Housworth months after trial and relied on Housworth's self-reported description of his mental state around the time of trial as well as the notes of the jail's mental health therapist. Dr. Barnett diagnosed Housworth with moderate PTSD, anxiety disorder, and depressive disorder. Based on the information he reviewed, the fact Housworth went on a hunger strike for six to seven days without food or water, and the conditions in the isolation cell, Dr. Barnett concluded Housworth was not competent.

The district court denied Housworth's motions, finding he had not shown Bryant was ineffective, the conditions in the jail did not violate his right to counsel, and Housworth had not proven he was incompetent to stand trial. The district court sentenced Housworth to 162 months' imprisonment with 36 months' postrelease supervision. We granted Housworth's motion to remand for findings of fact and conclusions of law on 10 of the claims raised in his posttrial motions. The district court held multiple hearings on remand. The district court requested the parties submit proposed findings of fact and conclusions of law. Upon review of the record and the parties' submissions, the district court adopted the State's proposed findings of fact and conclusions of law and denied Housworth's requests for relief. Additional facts are set forth as necessary.

Analysis

Housworth's Ineffective Assistance of Counsel Claims Are Unpersuasive

Housworth raises three claims of ineffective assistance of trial counsel. Specifically, he asserts his trial counsel was ineffective for: (1) failing to object when an officer escorted Housworth to the witness stand at trial; (2) failing to use an expert witness or call the treating medical providers to show the extent of Bednarek's injury did not constitute great bodily harm; and (3) failing to move for the district court to suspend jury deliberations after the jury informed the district court it could not play the DVD from the surveillance cameras on the equipment in the jury room. Because his first three claims fall under the umbrella of ineffective assistance of counsel, we will address them as a single issue using the same standard of review and applicable legal principles.

Standard of review and applicable legal principles

When the district court conducts an evidentiary hearing on claims of ineffective assistance of counsel, we review the district court's factual findings using a substantial competent evidence standard. We review the district court's legal conclusions based on those facts applying a de novo standard of review. Khalil-Alsalaami v. State, 313 Kan. 472 486, 486 P.3d 1216 (2021).

The right to effective counsel is embodied in the Sixth Amendment and "plays a crucial role in the adversarial system." Strickland v. Washington, 466 U.S 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984); see Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland). Claims of ineffective assistance of trial counsel are analyzed under the two-prong test articulated in Strickland. Under the first prong, the defendant must show that defense counsel's performance was deficient. If successful, we move to the second prong and determine "'whether there is a reasonable probability that, without counsel's unprofessional errors, the result would have been different.'" Khalil-Alsalaami, 313 Kan. at 485.

"To establish deficient performance under the first prong, 'the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" 313 Kan. at 485. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential. A fair assessment of counsel's performance requires we make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances surrounding the challenged conduct, and to evaluate the conduct from counsel's perspective at the time. When considering a claim of ineffective assistance of counsel, we must strongly presume defense counsel's conduct fell within the wide range of reasonable professional assistance; that is, the defendant must overcome the strong presumption that, under all of the circumstances, counsel's action "'might be considered sound trial strategy.'" 313 Kan. at 485-86.

While some aspects of a criminal case remain with the accused-such as what plea to enter, whether to waive a jury trial, or whether to testify-other aspects of a criminal case-such as what witnesses to call, whether and how to conduct cross-examination, and other strategic and tactical decisions-are left to the defense counsel. Edgar v State, 294 Kan. 828, 838, 283...