State v. Orr, 72257

• Decision Date: 30 May 1997
• Docket Number: No. 72257,72257
• Parties: STATE of Kansas, Appellee, v. Abraham ORR, Appellant.
• Court: Kansas Supreme Court

Page 42

940 P.2d 42

262 Kan. 312

STATE of Kansas, Appellee, v. Abraham ORR, Appellant.

No. 72257.

Supreme Court of Kansas.

May 30, 1997.

Syllabus by the Court

1. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial.

2. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.

3. With regard to the required showing of prejudice to the defendant in a claim of ineffective assistance of counsel, the proper standard requires the defendant to show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality ofthe evidence before the judge or jury.

4. Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry remain mixed questions of law and fact on appeal. Where the trial court has made findings of fact and conclusions of law, an appellate court determines whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have substantial support in the evidence.

5. An appellate court does not reweigh the testimony or pass on the credibility of witnesses but accepts as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court and [262 Kan. 313] disregards any conflicting evidence or other inferences that might be drawn therefrom.

6. Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffective assistance of counsel case, a particular decision not to investigate must be directly assessed for reasonableness under all the circumstances, applying a heavy measure of deference to counsel's judgments.

7. While the issue of whether a defendant's statement was voluntary is dependent upon the mental capacity of the defendant, the ultimate determination is based upon the totality of the circumstances, including (1) the manner and duration of the questioning; (2) the suspect's ability upon request to communicate with the outside world; (3) the suspect's intellect, age, and background; and (4) the fairness of the interrogating officers.

8. A confession is not inadmissible merely because the person making it is a juvenile. The age of the juvenile, the length of the questioning, the juvenile's education, the juvenile's prior experience with the police, and the juvenile's mental state are all factors to be considered in determining the voluntariness and admissibility of a juvenile's confession into evidence.

9. The question whether a statement made by a juvenile during custodial interrogation is voluntary is governed by our decision

in State v. Young, 220 Kan. 541, 552 P.2d 905 (1976). The holding in Young is stated and applied

10. Where the sufficiency of evidence in a criminal case is challenged on appeal, 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.

Jessica R. Kunen, Chief Appellate Defender, argued the cause, and Rebecca E. Woodman, Assistant Appellate Defender, was with her on the briefs for appellant.

John F. Wilcox, Jr., Assistant District Attorney, argued the cause, and Debra Westhoff, Student Intern, Christine K. Tonkovich, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellee.

[262 Kan. 314] DAVIS, Justice:

Abraham Orr appeals from his convictions of first-degree murder, K.S.A. 21-3401, and attempted aggravated robbery, K.S.A. 21-3427 and K.S.A. 21-3301. He claims ineffective assistance of counsel in violation of his Sixth Amendment right under the United States Constitution. He also challenges the admission of his confession and contends that the evidence fails to support the jury's determination that he was legally sane at the time of the crime.

On September 18, 1993, the defendant and three friends, James Wadley, Courtney Crockett, and Adrian Perkins, traveled in Wadley's car to Kansas City from their home in Topeka. The defendant was 1 month shy of his 18th birthday. On the return trip, Wadley's car broke down on the Kansas turnpike near one of the Lawrence toll exits. The four left the car on foot to look for a telephone.

The defendant and Wadley entered a convenience store near the turnpike to make the telephone call. Once inside, they decided to steal an unguarded purse, hoping to find car keys. The keys in the purse did not fit the car in the parking lot outside the store, so the youths walked on. The four encountered a Izuzu Trooper parked with its motor running at the gate of a park not too far from the convenience store. Initially, they passed the vehicle but soon returned to steal it.

The occupants of the vehicle included, Edward Lees, Dana Chang and Dana's 21/2-year-old son and her 15-month-old daughter. The defendant and Crockett approached the vehicle, while Perkins and Wadley hung back. The defendant carried his own handgun, while Crockett carried Wadley's 9 mm. pistol. They motioned to Lees to get out of the vehicle. Lees shook his head no and then faced forward.

This action frustrated the defendant. He took out his gun and tapped on the vehicle window. When Lees refused to move, the defendant shot a warning shot at the ground. Again, Lees did not move but shifted into reverse and slowly moved backward. The defendant, in anger, raisedhis gun and shot through the window.

Chang witnessed each of these events and testified that the bullet went through Lees' head. The vehicle rolled back into a ditch. [262 Kan. 315] She grabbed her son and ran for help. Chang flagged down a car whose driver agreed to watch her son as she returned for her daughter. Another driver whom Chang alerted went to the toll booth to report the incident to the police. While he was in the process of calling, he witnessed four youths running from the woods to the toll booth. He reported the youths as possible suspects. Lees bled to death at the scene from a bullet wound to his neck.

Police arrived at the east Lawrence toll booth and arrested the four young men. They were all taken to the Douglas County Law Enforcement Center. During separate interrogations, each suspect confessed to their involvement in the shooting. The defendant was the last to confess, only agreeing to talk after he saw the other three youths. The defendant was charged with felony murder and attempted aggravated robbery. A motion to suppress his confession was denied prior to trial. Based upon his juvenile record, the defendant was tried as an adult.

At trial, Chang identified the defendant as the shooter. The defendant's confession was admitted through the interrogating officer. The defendant raised the defenses of insanity and diminished capacity. He testified on his own behalf regarding his state of mind during the incident. He explained that he thought he was doing the right thing to get his friends a car to get home. He also testified that his brother had died a month before the shooting, causing him severe depression.

A teacher of the defendant's and a school social worker testified to the change in personality they had witnessed in the defendant since the date of his brother's death. In addition, his mother testified that her sons had been very close and the death had severely affected the defendant.

As a rebuttal witness, the State called the court-appointed psychiatrist, Dr. Sheldon Vile, of the Bert Nash Mental Health Center. Dr. Vile testified that he examined the defendant a few months after the crime and determined that while the defendant exhibited some signs of depression, he believed the defendant to be legally sane on the date of the crime. The defendant's appeal was timely filed; his counsel requested that the case be remanded for a determination[262 Kan. 316] of the defendant's contention that he had not been adequately represented during the trial of his case.

In State v. Van Cleave, 239 Kan. 117 Syl. p 1, 716 P.2d 580 (1986), we held that a claim of ineffective assistance of counsel will not be considered for the first time on appeal. We outlined in Van Cleave a remand procedure for hearing a claim of ineffective assistance of counsel before the trial court. The rationale for this procedure was clearly stated in Van Cleave:

"The principal problem facing an appellate court when a claim of ineffective assistance of counsel is raised for the first time on appeal is that the trial court, which observed counsel's performance and was aware of the trial strategy involved, is in a much better position to consider counsel's competence than an appellate court is in reviewing the issue for the first...