Wilkins v. State

• Decision Date: 22 August 2008
• Docket Number: No. 95,023.,95,023.
• Citation: 190 P.3d 957
• Parties: Michael D. WILKINS, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

190 P.3d 957

Michael D. WILKINS, Appellant, v. STATE of Kansas, Appellee.

No. 95,023.

Supreme Court of Kansas.

August 22, 2008.

Ronald Schneider, of Lawrence, argued the cause and was on the briefs for appellant.

Michael C. Hayes, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

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

This K.S.A. 60-1507 appeal involves movant Michael D. Wilkins' 1996 convictions arising out of the 1993 murder of David Shipley. The district judge denied Wilkins collateral relief after an evidentiary hearing on his ineffective assistance of counsel and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claims. A panel of our Court of Appeals reversed and remanded for new trial in Wilkins v. State, No. 95,023, 2006 WL 3409418, unpublished opinion filed November 22, 2006. We granted the State's petition for review.

We address the merits of each of the issues raised by Wilkins' motion in turn.

Factual and Procedural History

In brief, Wilkins' 1996 convictions involved murder, sex, drugs, and the Ku Klux Klan. He had been recruited to be an enforcer and assistant to Klan group leader Mike Bittle. Bittle later turned his Klan position over to a friend, moved to Iowa, and began a new career growing marijuana; but he and Wilkins remained in touch. See State v. Wilkins, 267 Kan. 355, 356-57, 985 P.2d 690 (1999).

The man who would later become the murder victim, Shipley, persuaded Bittle to set up Klan activities in Iowa "because it would be a good way to `pick up girls' because the girls would think it was `cool.'" 267 Kan. at 357, 985 P.2d 690. Shipley moved in with Bittle; started sleeping with Bittle's girlfriends; raped a Klan initiate with whom Bittle wanted to have sex; and generally attempted to replace Wilkins as Bittle's assistant. None of these behaviors sat well with Bittle or Wilkins. In addition, because Bittle had been slow to repay a loan from Shipley, Shipley threatened to report Bittle's marijuana growing operation to law enforcement.

In the summer of 1993, Bittle, his wife and girlfriends, Wilkins, Shipley, and another man named Charles "Doug" Gray met at a Missouri motel. Bittle told Wilkins and Gray that he was tired of Shipley causing friction and that he did not want to see Shipley anymore. According to Bittle, Wilkins then asked, "`What do you mean, kill him?'" Bittle then replied, "`Do what you have to do, I just don't want to see him anymore.'" 267 Kan. at 358, 985 P.2d 690. Bittle also told Wilkins to bring him a necklace Shipley wore as proof that the Wilkins had taken care of the Shipley problem. Wilkins, Gray, and Shipley then left the motel.

Wilkins returned later, told Bittle that Shipley was not going to be a problem anymore, and handed Shipley's necklace to Bittle. The group distributed some of Shipley's possessions and burned or otherwise disposed of the rest.

One of Bittle's girlfriends contacted police in late 1994 and reported what she knew about Shipley's evident murder. The resulting investigation languished until Gray, through an attorney, contacted authorities in early 1996 and demanded immunity in exchange for his cooperation. Gray agreed to wear a wire to gather information from Wilkins, but his two attempts to do so resulted in garbled recordings.

Gray took two polygraph tests for the Kansas Bureau of Investigation, and neither polygraph report was given to Wilkins or his counsel before trial. Each report contained the examiner's conclusion that Gray was being deceptive. Each report also mentioned that Gray had said in interviews that Shipley may not have been dead when Gray placed Shipley in a pond after Wilkins shot him. Gray ultimately received a promise of immunity in exchange for truthful testimony against Wilkins.

After Wilkins and Bittle were arrested in 1996, Wilkins suggested to Bittle that they cast all blame on Gray. In a note to Wilkins which was intercepted and admitted at trial, Bittle agreed to implicate Gray. Bittle evidently reconsidered this choice, and he accepted a plea agreement in exchange for his testimony against Wilkins.

According to Gray, Wilkins had shot Shipley in the eye or head with Wilkins' .22 caliber long rifle. Gray and Wilkins then sank the body in a pond on Wilkins' mother's property in Jefferson County. Gray was the one who walked out in the pond and placed a rock in Shipley's shorts to weight them. Several months later, Wilkins told Gray that the body had surfaced and that Wilkins had scattered the bones; but Gray was able to lead officers to the pond, where remains were discovered.

Michael Finnegan, a forensic anthropologist, concluded that the remains were that of a young white male, ranging in height from 5'8" to 5'11." Dr. Daniel Winter, a dentist, relying upon 11 teeth recovered from the scene, positively identified the remains as those of Shipley.

Detective Randy Carreno testified that police had recovered a .22 caliber long rifle from Wilkins' parents' house. When questioned about Shipley's disappearance, Wilkins told Carreno that Shipley went to Texas; he later stated Shipley was heading to Florida. When Carreno informed Wilkins that police had found the pond where Shipley's remains were hidden, Wilkins said, "Out by my Mom's." Carreno also told Wilkins police had recovered the murder weapon; Wilkins replied that he already knew this because his mother had called and told him. When Wilkins was asked if he would like to see the weapon, he declined, stating he already knew what the rifle looked like.

On direct appeal, this court upheld Wilkins' convictions for first-degree premeditated murder, conspiracy to commit first-degree murder, and aggravated robbery; we reversed his conviction for conspiracy to commit aggravated robbery. 267 Kan. at 368, 985 P.2d 690.

In the 2003 motion underlying this appeal, Wilkins argued that his retained trial counsel, Carl A. Fleming, was ineffective for (1) failing to hire or consider hiring an expert under Mullins v. State, 30 Kan.App.2d 711, 716-18, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002), to challenge the State's dental forensics expert; (2) failing to file any formal discovery requests, instead relying on the prosecutor's open-file policy; (3) failing to investigate the criminal history of key witnesses; (4) failing to introduce evidence of the benefits key witnesses had received from the State in exchange for their testimony; and (5) failing to object to evidence, to perform any investigation in preparation of the defense, and failing to otherwise provide adequate representation. Wilkins also argued that the prosecutor withheld exculpatory evidence, specifically: (1) the grant of immunity given to Gray; (2) the results of Gray's polygraph tests; and (3) the plea agreement between the State and Bittle.

At the 2004 evidentiary hearing on the motion, Wilkins presented testimony from Fleming; Winter; Dr. Ronald E. Gier, a forensic odontologist; and Albert Lopes, Jr., a Douglas County criminal defense attorney.

Fleming testified that he voluntarily surrendered his license to practice law in 2000 in connection with various uncontested complaints filed with the disciplinary administrator. The complaints were not related to the adequacy of his representation of Wilkins. Fleming also confirmed that he had filed no discovery requests with the prosecutor's office, relying on the prosecutor's open-file policy. Although he had received and reviewed more than 1,000 documents, Fleming was not aware that Gray had taken polygraph examinations or that the polygraph examiner concluded both times that Gray was being deceptive in answering questions about Shipley's death. Wilkins argued that the failures constituted violations of Gray's immunity agreement with the State. Fleming acknowledged that the failed polygraphs would have been exculpatory for his client and said that, had he known there was a problem with Gray's immunity agreement, he would have "done something about it." Fleming agreed, however, that polygraph examination results are not admissible evidence.

Fleming testified that he was aware the State had entered an agreement with Bittle and that he knew its terms; but he never saw the written agreement, did not request a copy of it, and did not introduce evidence concerning the benefit Bittle might have received as a result of the agreement.

Fleming also testified that he had not researched the criminal history of Bittle and Gray and had not attempted to impeach their credibility based on previous convictions. However, he testified that he did present evidence at Wilkins' trial that Bittle had attempted to implicate several innocent people in Shipley's murder and that Bittle and the Klan group were involved in illegal activities, including drugs, shoplifting, and prostitution.

Fleming did not consult with any experts in preparation for Wilkins' trial, and he did not cross-examine the State's dental expert, Winter. He admitted that he had no idea whether Winter's methodology or conclusions were sound or whether they could be challenged. He also said that he was "unable to fully understand [Winter's] forensic testimony." On cross-examination, Fleming said that his trial strategy did not involve contesting the identity of the remains. He further stated that, knowing what he knows now, he should have consulted an expert on the subject of dental identification, as well as an expert on the tape recordings Gray surreptitiously made of defendant.

Fleming also acknowledged that, although he knew there was a related federal investigation and contemporaneous investigations in Missouri and Iowa, he did not meet with or talk to any federal representatives or inquire into the Missouri investigation. He did contact Iowa authorities.

Finally, Fleming also testified that he was at a disadvantage at the time of Wilkins' trial in 1996 because he was a solo practitioner with no...