Thompson v. State

• Decision Date: 30 December 2011
• Docket Number: No. 100,058.,100,058.
• Citation: 293 Kan. 704,270 P.3d 1089
• Parties: Marc J. THOMPSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

270 P.3d 1089

293 Kan. 704

Marc J. THOMPSON, Appellant,

v.STATE of Kansas, Appellee.

No. 100,058.

Supreme Court of Kansas.

Dec. 30, 2011.

Syllabus by the Court

1. A K.S.A. 60–1507 motion is treated as a pleading for purposes of amendment under K.S.A. 60–215.

2. Under the version of K.S.A. 60–215 in effect before the statute's amendment on July 1, 2010, authority to amend under K.S.A. 60–215(a) is distinct from timeliness of claims under the relation back provision of K.S.A. 60–215(c).

3. K.S.A. 60–215(a) permits amendment as a matter of right and amendment by leave of court. If amendment to a K.S.A. 60–1507 motion is permitted, the timeliness of an amended claim is subject to K.S.A. 60–215(c), i.e., relation back is permitted only if the new claim is similar in time and type to the original claim, meaning it arose “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”

4. On the record in this case, movant's amended claim for ineffective assistance of appellate counsel did not relate back to the time of the filing of his original K.S.A. 60–1507 motion.

5. On the record in this case, movant's claim that he was denied effective assistance of trial counsel under the Sixth Amendment to the United States Constitution because of a failure to request an independent psychological evaluation of the victim, a stipulation to admission of the victim's videotaped interview, an unknowing and involuntary waiver of his right to confrontation, and/or a failure to object to evidence that movant pulled a knife on the victim's mother is without merit.

Meryl B. Carver–Allmond, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jamie L. Karasek, deputy county attorney, argued the cause, and Ty Kaufman, county attorney, and Steve Six, attorney general, were with her on the briefs for appellee.

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

Marc Thompson appeals the denial in part and dismissal in part of his K.S.A. 60–1507 motion.

Thompson argues that the court should have permitted him to pursue an amended claim that his counsel on direct appeal was ineffective. He also argues that his trial counsel provided constitutionally deficient representation by failing to request an independent psychological evaluation of the victim, stipulating to admission of the victim's videotaped interview, waiving his right to confrontation by failing to put the victim on the witness stand, and failing to object to evidence that Thompson pulled a knife on the victim's mother. Even if none of these errors independently requires reversal, Thompson argues, the cumulative effect of trial counsel's poor performance does.

We conclude that Thompson was properly permitted to amend his K.S.A. 60–1507 motion with leave of court to add claims of the same time and type as those advanced in the original motion, while untimely claims of a different time and type were correctly dismissed. Further, Thompson's allegations of ineffective assistance of counsel are without merit and not cumulative error requiring reversal.

Factual and Procedural Background

Thompson was convicted by a jury of aggravated indecent liberties for conduct occurring in July 2002 with his then 4–year–old daughter, S.T.

Neither side called S.T. to testify at trial. The parties agreed to the State's admission of a videotape of S.T.'s interview by Stephanie Linka, a forensic interview specialist for Sacramento County, California. Before the jury was shown the videotape, the district judge asked Thompson on the record if he personally agreed with that approach. Thompson confirmed that he did.

During the interview, in addition to describing Thompson's inappropriate sexual conduct with her, S.T. said that she was being interviewed because Thompson had pulled out a knife and tried to cut her mother. Several breaks were taken during the recording of the videotape, during which the camera was turned off. Linka testified at trial that, during the breaks, she went into another area and spoke to a detective while S.T. played in a separate area.

Ruth Porisch, a social worker for Prairie View treatment center in McPherson, testified for the defense on the power of suggestion in interviews of child sexual abuse victims. However, the district judge did not permit Porisch to testify about any possibility that S.T. was coached during the breaks in the videotaped interview.

Thompson's trial counsel succeeded in eliciting testimony from S.T.'s mother on cross-examination that S.T. had engaged in prior sexual touching with her 5–year–old cousin, an incident S.T.'s mother also had apparently described to a detective. During examination by the prosecutor, S.T.'s mother testified that Thompson's sexual abuse of his daughter came to light in connection with a law enforcement investigation in California. Thompson's trial counsel followed up on that point during cross-examination of S.T.'s mother, and she admitted to using methamphetamine 2 days before Thompson was incarcerated in California. On redirect, the prosecutor had her clarify that Thompson's California incarceration was unrelated to S.T.'s allegation in this case. Thompson's trial counsel did not object to this exchange between the prosecutor and S.T.'s mother.

Thompson appealed his conviction, and the Court of Appeals affirmed, handing down its mandate on November 3, 2005.

On November 2, 2006, Thompson filed the K.S.A. 60–1507 motion underlying this appeal. He alleged ineffective assistance of trial counsel, violation of his due process rights, and cumulative error. The State filed no written response to the motion.

On April 20, 2007, Thompson sought to amend his K.S.A. 60–1507 motion to add new arguments for the ineffectiveness of his trial counsel, as well as prosecutorial misconduct and ineffective assistance of appellate counsel claims.

As a result of a May 7, 2007, pretrial hearing and a June 19, 2007, State motion to dismiss all amended claims as outside the 1–year deadline set out in K.S.A. 60–1507(f), the district judge limited live testimony at the evidentiary hearing on Thompson's K.S.A. 60–1507 motion to Thompson's trial counsel and Thompson himself. After some back and forth on a K.S.A. 60–455 issue, the judge also ultimately ruled that Thompson would be permitted to present evidence on all of his allegations in support of ineffective assistance of trial counsel. The judge dismissed as untimely that part of Thompson's amended motion alleging prosecutorial misconduct and ineffectiveness of appellate counsel.

The January 2008 evidentiary hearing focused principally on whether trial counsel's performance was constitutionally deficient for failure to have S.T. evaluated, for stipulating to admission of the videotaped interview, and for failure to call S.T. to testify live at trial. Trial counsel testified that he had discussed whether to put S.T. on the stand with Thompson, and Thompson had expressed concern that S.T. would carry the burden of having put her father in prison. Counsel denied refusing to put S.T. on the stand. He also testified that he and Thompson never discussed having S.T. examined by another expert and said that he did not pursue an independent psychological evaluation of S.T. because she was out of state and under the control of her mother, Thompson's ex-wife. Trial counsel expressed some suspicion about the videotaped interview because of the breaks, and he said he called Porisch to testify regarding the unreliability of the interview procedure for that reason. Neither party at the K.S.A. 60–1507 evidentiary hearing asked trial counsel about his decision not to object to the testimony of S.T.'s mother about Thompson's incarceration or to S.T.'s mention during the videotaped interview of Thompson pulling out a knife and attempting to cut her mother.

Thompson testified that he remembered telling his trial counsel that he wanted his children to testify at trial, to which counsel replied: “I'm not putting them on the stand and you can fire me if you don't like it.” Thompson also testified that counsel told him the videotaped interview of S.T. had to be admitted and would probably lead to conviction. Thompson did not recall discussing the use of any other experts with his counsel, but he thought a psychologist should have been hired to testify about the psychology, sexuality, and memory of children. Thompson also testified that his counsel made no attempt to stop the prosecutor from introducing evidence of Thompson's prior incarceration.

The district judge expressly found that Thompson's testimony was less credible than his counsel's, and ruled:

“I think the main claim here is the claim that the little girl didn't take the stand. I find the defendant's testimony on that issue not to be credible. I find [counsel's] testimony to be credible.... I believe [counsel] when he says that was discussed with his client and he chose not to do it. The rest of the matter is just flyspecking that is done in hindsight that we could do on any trial. And I don't see anything that even if it would have been different or [counsel] would have objected on the other matters that would have caused any kind of a change in the ultimate verdict that was rendered anyway. The bottom line is the little girl was here, capable of testifying, available to testify I guess I should say, and it came down to her word that the jury believed. That and the testimony of the mother. And all these other matters that he complains about in my opinion would not have changed the outcome even if [counsel] had objected.

....

“The one point again I want to re-emphasize that that wouldn't be true is if I believed that [counsel] purposely did not put this little girl on. But the fact of the matter is [counsel] has testified that wasn't the case. That was the decision of the defendant not to do so. And I, that's a trial tactic anyway. We don't know but what...