State v. Reed

• Decision Date: 19 June 2015
• Docket Number: 106,807.
• Parties: STATE of Kansas, Appellee/Cross-appellant, v. Samuel REED, Appellant/Cross-appellee.
• Court: Kansas Supreme Court

302 Kan. 227

352 P.3d 530

STATE of Kansas, Appellee/Cross-appellant

v.Samuel REED, Appellant/Cross-appellee.

106,807.

Supreme Court of Kansas.

June 19, 2015.

Richard Ney, of Ney & Adams, of Wichita, argued the cause and was on the briefs for appellant/cross-appellee.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee/cross-appellant.

Opinion

The opinion of the court was delivered by BEIER, J.:

Defendant Samuel Reed shot Amos Becknell multiple times. Becknell survived. The State charged Reed with attempted first-degree murder and a jury convicted him as charged. At sentencing, the district court judge departed from the presumptive sentence for a severity level 1 crime and criminal history of A, instead sentencing Reed as though he had a criminal history of C.

Both Reed and the State appealed to the Court of Appeals. Reed raised several issues attacking his conviction and sentence. The State challenged the district judge's decision to depart. The panel rejected all errors asserted by both Reed and the State. We accepted Reed's petition for review and the State's cross-petition for review.

We now affirm Reed's conviction for attempted first-degree murder and vacate his sentence and remand to the district court for resentencing.

Factual and Procedural Background

On the morning of September 6, 2010, Reed and Michael Price borrowed a friend's blue car and went to Becknell's house. Reed drove, and Price was in the front passenger seat. Once Reed and Price arrived, one of the two got out of the car and shot Becknell in front of the house. Becknell suffered gunshot wounds

to the leg and back, but he ultimately survived. Officers arrested Reed and Price that night.

The State charged Reed and Price with attempted first-degree murder. Price would eventually enter into a plea agreement with the State, in which he agreed to plead guilty to two counts of aggravated battery and testify against Reed.

On the day of trial, the prosecutor informed the district judge that Becknell was present but was unwilling to testify. The district judge, the prosecutor, and Reed's trial counsel discussed how best to proceed. The district judge indicated that he was willing to bring Becknell into the courtroom outside the presence of the jury in order to “get some direct feedback on the record as to his willingness [to testify].” The prosecutor responded that Becknell was “not comfortable even coming into the courtroom under the circumstances with spectators and taking the witness stand even to state his refusal to testify.” The prosecutor suggested conducting the hearing in the judge's law library. Reed's trial counsel noted that “[i]t might be easier if we just emptied the courtroom and then did it in here” but ultimately “defer[red] to however the court wishe[d] to do it.”

After the judge swore in the members of the jury and the parties' counsel made their opening remarks, the judge excused the jurors and then emptied the courtroom except for counsel, Reed, and court personnel. Becknell initially refused to enter the courtroom, but eventually he did so and was sworn in. Becknell informed the judge that he refused to testify and wanted to go home. After a few clarifying questions, the judge determined that Becknell was unavailable as a witness and thus Becknell's preliminary hearing testimony would be read to the jury.

Testimony at trial clearly pointed to Reed as the shooter. Becknell's mother and another witness testified that they saw a blue car pull up to Becknell's home. Both saw the driver exit, approach Becknell, and shoot him. Becknell's mother had been unable to identify Reed from a photo lineup, but she testified at trial that she recognized Reed when she saw him at the preliminary hearing. A third witness testified that Reed had told her that he shot someone, and a fourth witness testified that she had overheard the conversation and that Price had later informed her that Reed shot someone.

When Price testified, he said his plea agreement required him to testify truthfully and that he was, in fact, testifying truthfully. He said that he and Reed drove to Becknell's house, and then Reed got out of the driver's seat of the car and walked up to the house. Price lost sight of Reed as he approached the house, but he heard a “loud clap” that “[c]ould have been a gunshot.” After Price heard the loud noise, Reed returned to the car and the two left the scene.

Becknell's preliminary hearing testimony, admitted at trial, was consistent overall with the observations of the other witnesses. He said he had been sitting on his front porch when a man approached him from the driver's side of a blue car. After a brief exchange of words, the man shot Becknell. Becknell also was able to identify Reed as the shooter. Becknell said that he knew Price and that it was not Price who shot him.

Reed testified in his defense. He asserted it was Price who shot Becknell. According to Reed, he had agreed to take Price to Becknell's house so that Price could fight Becknell. When Reed approached Becknell's house, Price identified the house and told Reed to drive past and circle back. On the way back toward the house, Price crawled into the back seat. Once at the house, Reed testified, Price exited the driver-side rear door, went up to Becknell outside the house, and shot Becknell before running back to the car.

Between the jury's guilty verdict and sentencing, the defense filed a flurry of motions and the defense counsel roster changed multiple times.

Four days after trial, through trial counsel, Reed filed a motion for new trial and judgment of acquittal, alleging that the evidence was insufficient to support his conviction. Reed also filed a motion for a downward durational departure on his sentence.

More than a month later, with a new attorney, Reed filed a second motion for new trial and a motion for judgment of acquittal. Reed's motions argued that the credibility of the State's witnesses was a significant issue, that it was error to view Becknell as unavailable to testify at trial, and that the evidence was insufficient to support Reed's conviction.

Three months after the verdict, with a third attorney representing him, Reed filed a third motion titled “Supplemental Motion for a New Trial.” In it, he raised new allegations of trial error and, for the first time posttrial, claimed ineffective assistance of trial counsel.

The district judge treated Reed's third motion as one seeking postconviction relief, similar to a motion filed under K.S.A. 60–1507, and held an evidentiary hearing. Reed's trial counsel testified at the hearing. The judge then denied the motion.

Six months after his conviction, Reed filed two more motions. The first motion challenged the constitutionality of a guidelines-based sentence. Reed argued that the sentence for his crime was cruel and unusual because, based on his criminal history score of A, his sentence for attempted first-degree murder was “potentially twice as long” as the sentence he would have received if he had successfully completed the offense. Reed also pointed out that his criminal history score was based on a “single case, committed when he was a juvenile, in which no one was seriously injured—two individuals received threatening texts and a police officer received a minor cut on his face.” Reed's second motion again sought a downward durational departure. He argued that his criminal history classification significantly overrepresented his previous criminal history, that Price received only probation for his involvement in the shooting, and that Reed would have been eligible for parole after 25 years if he had completed the murder but would instead serve more than 50 years in prison under the guidelines.

At the sentencing hearing, the district judge dismissed the first two motions for new trial and the motion for judgment of acquittal. The district judge also rejected Reed's argument that a guidelines-based sentence was unconstitutional. The district judge granted Reed's departure motion and sentenced him to 272 months' imprisonment.

On appeal to the Court of Appeals, Reed claimed: (1) his trial counsel was ineffective; (2) his right to a public trial was violated when the court closed and locked the courtroom in order to consider Becknell's availability to testify; (3) prosecutorial misconduct deprived him a fair trial; and (4) his sentence constituted cruel and unusual punishment. The State cross-appealed the grant of a downward durational departure, arguing the district judge lacked a substantial and compelling reason to depart from the presumptive prison sentence. The State also questioned the Court of Appeals' jurisdiction to hear Reed's ineffective assistance of counsel claim because the claim had been raised in what it believed to be an untimely motion for new trial.

On petition for review, Reed has now narrowed his claims to the following: (1) The Court of Appeals erred in holding that the closure of the courtroom for a hearing to determine whether Becknell would testify either was not a violation of Reed's Sixth Amendment right to a public trial or was a harmless violation; (2) the Court of Appeals erred in holding that Becknell was unavailable and that Reed had a prior opportunity to confront Becknell at the preliminary hearing; and (3) the Court of Appeals erred in holding that there was no ineffectiveness in trial counsel's failure to object to the prosecutor eliciting testimony from Price about his truthfulness. On its cross-petition, the State again challenges the sentencing departure and questions jurisdiction to examine Reed's ineffectiveness claim.

Discussion

We begin, as did the Court of Appeals, with a discussion of our appellate jurisdiction. Our review over jurisdictional issues is unlimited. In re T.S.W., 294 Kan. 423, 432, 276 P.3d 133 (2012).

The State argues that this court lacks...