Taylor v. State

• Decision Date: 11 December 1992
• Docket Number: No. 66880,66880
• Citation: 252 Kan. 98,843 P.2d 682
• Parties: Sherwin W. TAYLOR, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 682

843 P.2d 682

252 Kan. 98

Sherwin W. TAYLOR, Appellant, v. STATE of Kansas, Appellee.

No. 66880.

Supreme Court of Kansas.

Dec. 11, 1992.

Syllabus by the Court

1. When considering a claim of ineffective assistance of counsel, a trial court must follow a two-prong test. First, the defendant must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

2. A trial court must make findings of fact and conclusions of law on all issues presented. This requirement enables the appellate courts to determine 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 any substantial support in the evidence.

3. Upon appellate review, the appellate court accepts as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial judge.

4. It is the duty of the trial court to weigh the evidence presented and to pass on the credibility of the witnesses.

5. A trial court has no duty sua sponte to address a silent defendant and inquire whether he or she knowingly and intelligently waives the right to testify. An express waiver, on the record, is not necessary because a defendant's conduct provides a sufficient basis from which to infer that the right to testify is waived. There is a danger that by asking a defendant if he or she is aware of his right to testify, a trial court may inadvertently influence a defendant to waive the equally fundamental right against self-incrimination.

Geary N. Gorup, of The Law Office of Geary N. Gorup, Wichita, argued the cause and was on the brief, for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Jeffrey E. Goering, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief, for appellee.

HERD, Justice:

Sherwin W. Taylor appeals from an order of the district court in a K.S.A. 60-1507 proceeding denying a new trial sought on the basis of ineffective assistance of counsel. Taylor was originally convicted of one count of aggravated robbery, K.S.A. 21-3427, and one count of felony murder, K.S.A.1991 Supp. 21-3401(a)(1).

Taylor took a direct appeal of his convictions and this court affirmed. In State v. Taylor, No. 62,629, an unpublished opinion filed December 8, 1989, we stated the facts:

"Several nights before he was killed, nineteen-year-old Michael Garcia played a game of pool with Donato Ornales III. To his misfortune Michael lost the game and a $1.00 bet. Michael told Ornales he would pay up the bet on July 21, 1987, to which Ornales agreed. Nevertheless, when Ornales saw Michael in the parking lot of the Golden Cue on July 14, he asked for his money. Michael replied that he got paid on July 21 and would pay the bet then. A few minutes later, Ornales and the defendant followed Michael into the Golden Cue.

"There is disputed evidence as to who entered the restroom first, but while in the restroom of the pool hall Ornales demanded money from Michael and threatened that his friend, Taylor, would 'take care' of Michael if he did not pay. At that point, Ornales pushed Michael. Michael tried to run out of the restroom but Taylor prevented his escape and hit Michael twice in the stomach. Ornales beat Michael with his fists and demanded money until Michael fell to the floor. Ornales then kicked Michael in the face, which caused his head to slam backward into the restroom wall and knocked Michael unconscious. As payment for the pool debt, Ornales took Michael's Swatch watch before leaving the restroom and fleeing from the Golden Cue.

"Michael was immediately taken to the hospital. He was in a combative condition, screaming in pain and holding his head. Early the next morning, surgery was required to relieve pressure on the brain due to the formation of a blood clot over the brain caused by a blow to the head or fall on a hard surface. The surgery was unsuccessful; on July 18, Michael was declared brain dead.

"On March 15, 1988, Taylor was convicted of aggravated robbery and first-degree murder of Michael Garcia under a theory of aiding and abetting."

On September 4, 1990, Taylor filed a K.S.A. 60-1507 motion. In his motion, Taylor alleged he was not afforded effective assistance of counsel because his trial attorney, Charles O'Hara, prevented him from testifying in his own behalf. Taylor further alleged O'Hara was ineffective because he failed to attempt to suppress statements Taylor made to law enforcement officers and failed to object to the presentation of the statements at trial. Finally, Taylor alleged O'Hara failed to adequately investigate and present evidence concerning Ornales' acknowledgment that Taylor had taken no part in the robbery or injury of Garcia.

On May 10, 1991, the trial court conducted an evidentiary hearing on Taylor's 1507 motion. Taylor's wife, Kaye, testified she was present during several conversations which Taylor had with O'Hara. Kaye testified that at the initial meeting with O'Hara, it was assumed Taylor would testify in his own behalf. Kaye further stated that during Taylor's trial, towards the end of the State's case, she and Taylor met with O'Hara at O'Hara's office. Kaye stated O'Hara told them "the decision had been made that [Taylor] would not testify." Kaye testified that Taylor responded, "but I want to testify" and O'Hara replied it was "just an unwise decision so I'm going to say no." According to Kaye, O'Hara told Taylor it would be pointless for him to testify.

Kaye testified that the next day she was in the hallway of the courthouse when Taylor caught O'Hara by the arm and said "[Y]ou have got to let me testify." O'Hara allegedly responded, "[N]o, I've already decided you will not testify." Kaye further testified that after O'Hara presented the defense's case in chief, Taylor again told his attorney he wanted to testify. Kaye did not hear O'Hara's reply, but she testified that she observed O'Hara shaking his head no.

Barbara Taylor, Taylor's mother, testified she had attended Taylor's trial and had witnessed the confrontation in the hallway between Taylor and O'Hara. Barbara stated O'Hara told Taylor there was no need for him to testify and that "it was a little late for him to testify." Barbara also testified that during the trial she saw Taylor lean toward O'Hara and say, "I would like to testify." O'Hara had responded, "[N]ot at this time, Sherwin, I don't think you should."

Beverly Hubbs, a friend of Kaye Taylor, testified she went with Kaye to O'Hara's office on numerous occasions after the trial and during the appeals process. Hubbs testified that on one occasion O'Hara stated he knew Kaye and Taylor did not agree with him regarding Taylor testifying at trial, but it did not matter because it was O'Hara's decision. On another occasion, Hubbs was present when O'Hara stated the Taylors and he could not agree on whether Taylor should testify at trial, so O'Hara had "made the decision and that's all there was to it, period, he didn't wanna hear about it anymore."

Taylor's sister, Shirley Ferretti, also testified she attended Taylor's trial. Ferretti overheard Taylor express a desire to testify, but O'Hara said it was not in Taylor's best interest to testify. Taylor repeated his wish to testify, but O'Hara said "no."

Taylor testified that after his preliminary hearing he assumed he would testify at trial on his own behalf, but O'Hara indicated he wanted more information before he made that decision. The day before trial, Taylor told O'Hara he thought it would be best if he testified, and O'Hara made no response. Taylor further testified that several times during trial he told O'Hara he wanted to testify, but O'Hara was very adamant about him not testifying. According to Taylor, O'Hara didn't want Taylor to testify because it would introduce more variables into the trial.

O'Hara testified he had been an attorney for 15 years and most of his practice was devoted to criminal law. O'Hara testified he had had conversations with Taylor regarding whether he would testify. O'Hara admitted advising Taylor not to testify. O'Hara testified he specifically remembered asking Taylor at trial if he wanted to testify. Taylor, however, responded, "I'm gonna follow your advice, I'm not gonna testify." O'Hara also admitted he did not have any written documentation to indicate he had informed Taylor of his right to testify. O'Hara testified such was not his practice--"I know what the law is. I know he has a right to testify. And I told him. There's no doubt that I told him." O'Hara further testified:

"I told him it was his right [to testify] and his right alone. I have nothing to gain by forcing anyone not to testify. I mean, it doesn't matter to me. I mean, they're the ones on trial, not me.

....

"[O]bviously it's a decision that every attorney has to look at in every case depending on the case as to whether [a defendant] should or shouldn't [testify]. And I discussed that and I have strong feelings depending on the case as to how it should go. And, in Mr. Taylor's case, it was kind of a close call, I thought really, but my advice in the end was for him not to testify. I didn't force him not to. I advised him that he could still do it if he wanted to."

O'Hara testified Taylor expressed a desire to testify at various stages of the prosecution. Taylor had stated he wanted to testify at the preliminary hearing, but O'Hara told him he should save his testimony for trial. O'Hara testified that occasionally during trial Taylor would state he wanted to testify in response to a State's witness' testimony. O'Hara explained Taylor could not testify at that point because it was not the defense's turn to...