State v. Moyer
Decision Date | 15 February 2019 |
Docket Number | No. 105,183,105,183 |
Citation | 434 P.3d 829 |
Parties | STATE of Kansas, Appellee, v. Steve Kelly MOYER, Appellant. |
Court | Kansas Supreme Court |
Robert A. Anderson, Sr., of Law Office of Donald E. Anderson II, LLC, of Ellinwood, was on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the briefs for appellee.
Steve Kelly Moyer's direct appeal returns to this court after a remand to the district court for a State v. Van Cleave , 239 Kan. 117, 716 P.2d 580 (1986), hearing to determine whether Moyer was denied his Sixth Amendment right to counsel, either because his trial counsel was not constitutionally conflict-free or was not constitutionally competent. State v. Moyer , 302 Kan. 892, 895, 935, 360 P.3d 384 (2015), as modified in 306 Kan. 342, 410 P.3d 71 (2017). When this court remanded the case for a determination of whether Moyer was provided effective assistance of counsel, it also reserved the question of cumulative error. We now determine that Moyer's convictions can be affirmed.
A detailed description of the sodomy and sexual intercourse underlying Moyer's five sex crime convictions is set forth in the opinions cited above. The victim was J.M., Moyer's oldest daughter, who testified to a pattern of sexual abuse that started when she was 11 years old and continued into her 14th year. In addition to that testimony, J.M. provided several items of corroborating physical evidence, including used condoms from sexual encounters with Moyer, an audio recording J.M. secretly made of one sexual encounter, a rag that J.M. had used to clean herself after sex acts with Moyer, and a notebook containing an agreement between J.M. and Moyer enumerating a points system Moyer designed by which J.M. could ostensibly complete the sexual relationship with Moyer by performing sex with him according to certain rules.
During the trial, a problem arose getting an exculpatory witness to testify for the defense. While Moyer's attorney, Jeffery Mason, was serving as guardian ad litem for J.T. in a child in need of care (CINC) case, he learned that J.T. knew J.M. and her sister, H.M.; that J.T. was aware of J.M.'s sexual abuse allegations against Moyer; that J.M. and H.M. had told J.T. that the allegations against Moyer were false; and that J.T. was willing to testify in Moyer's criminal case. In our earlier opinion, we described the problems as follows:
At that point, the trial court noted that J.T.'s subpoena was issued just that morning. The trial court gave Mason until the end of Moyer's trial testimony to determine whether J.T. was available to travel and competent and capable of testifying. The trial court held that if Mason could not show J.T.'s availability, the trial would continue without her, specifically declaring: " ‘Defense [counsel] has had an ample opportunity to prepare their case, that there has not been a subpoena issued prior to today's date, and that we're going to go forward and this case will be concluded and taken to the jury.’ " 306 Kan. at 382, 410 P.3d 71.
After Moyer testified, the parties had another in-chambers conference regarding J.T.'s availability. This court's prior opinion stated the following facts:
This court held that although the trial court inquired into the facts underlying the conflict of interest, it failed to make the determinations necessary for this court to assess what impact the conflict had on Mason's performance. For example, this court did not know whether Mason was still serving as J.T.'s guardian ad litem at the time of Moyer's trial. Further, this court had no findings from the district court as to Mason's failure to properly issue and serve a subpoena on J.T. forcing her appearance or regarding whether Mason should have preserved J.T.'s testimony in some manner. Therefore, this court remanded for a Van Cleave hearing to determine whether Moyer was denied his Sixth Amendment right to counsel. 306 Kan. at 383-85, 410 P.3d 71.
On remand, 15th Judicial District Chief Judge Glenn Schiffner granted Moyer's motion to disqualify or recuse Judge Scott Showalter, Moyer's trial judge, from presiding over the Van Cleave hearing. Chief Judge Schiffner assigned Chief Judge Glenn R. Braun of the 23rd Judicial District to preside over the hearing. Actions taken with Judge Braun presiding will hereinafter be referred to as actions taken by the Van Cleave court, in order to distinguish these proceedings from actions taken by Judge Showalter during Moyer's jury trial.
The State filed a motion to clarify the scope of remand based upon Moyer's letters to district judges and counsel indicating his intent to inquire into matters the State argued were not subject to remand, including Mason's qualifications for appointment as Moyer's counsel and the trial court's denial of Moyer's pretrial motions for new counsel. According to the State, the following issues were subject to remand: (1) Was Mason still J.T.'s guardian ad litem at the time of Moyer's trial? and (2) if so, (a) was Mason's advice adversely impacted by his status as J.T.'s guardian ad litem? and (b) was Mason ineffective for failing to obtain J.T.'s presence at trial or otherwise preserve her testimony?
Notably, the State stipulated that the answer to the first question is "yes," Mason was J.T.'s guardian ad litem at the time of Moyer's trial.
Moyer's written response to the State's motion argued the remand was limited to the three issues discussed in this court's opinion, including whether the trial court denied him due process by failing to conduct a meaningful hearing on his pro se pretrial motions for new counsel. Moyer argued the following were relevant to Mason's conflict of interest and ineffectiveness: Mason's qualifications; Mason falsely reporting to the Board of Indigents' Defense Services (BIDS) a visit with Moyer in jail that did not take place; Mason's failure to withdraw as both Moyer's counsel and J.T.'s guardian ad litem when he first learned J.T. was a potential exculpatory witness; Mason's financial interest in continuing both cases; the failure to properly and timely...
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