Wimbley v. State

• Decision Date: 23 November 2011
• Docket Number: No. 101,595.,101,595.
• Citation: 292 Kan. 796,275 P.3d 35
• Parties: Will A. WIMBLEY, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

275 P.3d 35

292 Kan. 796

Will A. WIMBLEY, Appellant,

v.STATE of Kansas, Appellee.

No. 101,595.

Supreme Court of Kansas.

Feb. 12, 2010.Original opinion filed Aug. 12, 2011.Modified Opinion filed Nov. 23, 2011.

Syllabus by the Court

1. A district court is not required to entertain a second or successive K.S.A. 60–1507 motion for similar relief filed by the same prisoner absent a showing of exceptional circumstances. Exceptional circumstances are unusual events or intervening changes in the law that prevented the defendant from raising the issue in the preceding 60–1507 motion. The burden to show exceptional circumstances that will permit a second or successive 60–1507 motion lies with the movant.

2. Prior cases in this State have clarified that the phrase premeditation “may arise in an instant” is an incorrect statement of Kansas law because “premeditation” means something more than the instantaneous, intentional act of taking another's life.

3. Ordinarily, an appellate court does not consider an issue sua sponte. An issue which the appellant has not briefed is normally deemed waived or abandoned.

4. Claims of ineffective assistance of counsel, as a general rule, cannot be raised for the first time on appeal. Only under extraordinary circumstances, i.e., where there are no factual issues and the two-prong ineffective assistance of counsel test can be applied as a matter of law based upon the appellate record, may an appellate court consider an ineffective assistance of counsel claim without a district court determination of the issue.

5. An ineffective assistance of counsel analysis involves a two-prong test, the second prong of which is a prejudice inquiry to determine whether counsel's deficient performance impacted the outcome of the case.

6. A person in state custody who is eligible to seek DNA testing under K.S.A. 21–2512 must show that the biological material to be tested meets three criteria: (1) the material to be tested is related to the investigation or prosecution that resulted in the person's conviction; (2) the material is in the actual or constructive possession of the State; and (3) the material has not been previously subjected to DNA testing or the material can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.

7. Where a person petitioning for DNA testing has met the requirements of K.S.A. 21–2512(a), the district court shall order DNA testing upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the petitioner's claim that he or she was wrongfully convicted or sentenced.

Roger L. Falk, of Law Office of Robert L. Falk, P.A., of Wichita, argued the cause, and Will A. Wimbley, appellant, was on the brief pro se.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the briefs for appellee.

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

The State of Kansas seeks review of the Court of Appeals' decision which reversed the district court's summary denial of Will A. Wimbley's second K.S.A. 60–1507 motion. In addition to reversing the summary denial, the Court of Appeals reversed Wimbley's underlying convictions for first-degree murder and criminal possession of a firearm and remanded the case to the district court for a new trial with directions to conduct a pretrial hearing on the questions surrounding DNA evidence on the murder weapon. Finding the district court's rulings to be appropriate, we reverse the Court of Appeals.

Factual and Procedural Overview

On February 10, 1999, Tina Cooper, a/k/a Leola Christina Haskins, Wimbley's ex-girlfriend, was found shot to death. She had been shot seven times from very close range, as indicated by the presence of stippling and soot in the gunshot wounds. Wimbley was charged and tried for the crime. He defended on the basis that he had not seen or had any contact with the victim on the day of the crime. However, the jury convicted Wimbley of premeditated first-degree murder and criminal possession of a firearm.

Wimbley pursued a direct appeal with appointed counsel, albeit Wimbley was permitted to submit pro se supplemental briefs. State v. Wimbley, 271 Kan. 843, 26 P.3d 657 (2001) ( Wimbley I ). One of the issues raised on direct appeal was whether the prosecutor had committed misconduct during closing argument. Wimbley's specific claim was that the prosecutor had improperly commented on Wimbley's post- Miranda silence during closing, which claim was rejected. 271 Kan. at 854–55, 26 P.3d 657.

Wimbley also challenged the sufficiency of the evidence to support premeditation. He argued that the Supreme Court's definition of premeditation had blurred the line between first- and second-degree murder and that the prosecutor's closing argument had exacerbated the confusion. 271 Kan. at 849, 26 P.3d 657. Specifically, Wimbley complained of the following statement:

“ ‘Premeditation requires no specific time period. That's what the law is. It doesn't require any. It doesn't say well, you have to think about it for 30 seconds, or five, or five hours or anything else. Premeditation can occur in an instant. It can be a thought. Just like that (indicating). I can decide to kill anybody in this room and that would be premeditation. That's what the law is. And you swore—you all swore that you would follow the law, and the law says premeditation can happen just like that.’ ” 271 Kan. at 849–50, 26 P.3d 657.

Wimbley I pointed out that Wimbley's argument was identical to the one made by the defendant in State v. Jamison, 269 Kan. 564, 7 P.3d 1204 (2000). As in Jamison, Wimbley I found that the trial court's jury instruction on premeditation had been a correct statement of Kansas law and “that there was ‘a very real distinction between the argument of a prosecutor and the instruction of a trial court.’ ” 271 Kan. at 850, 26 P.3d 657 (quoting Jamison, 269 Kan. at 573, 7 P.3d 1204). Wimbley I affirmed the convictions.

In February 2002, some 6 months following the decision in Wimbley I, Wimbley filed his first K.S.A. 60–1507 motion. He supplemented his motion in July 2002. The district court appointed counsel to represent Wimbley, conducted a preliminary hearing, and ultimately denied the motion without an evidentiary hearing. Wimbley appealed, raising a number of issues, including ineffective assistance of his trial counsel. Wimbley v. State, No. 90,025, ––– Kan.App.2d ––––, 2004 WL 1191449, at *3 (Kan.App.2004) (unpublished opinion) ( Wimbley II ). Specifically, Wimbley complained that his trial counsel had failed to adequately investigate, that trial counsel had improperly conceded in opening statement that Wimbley's DNA was on the murder weapon, and that trial counsel had failed to object to the prosecutor's misconduct during closing argument.

The Wimbley II panel affirmed the district court's denial of the 1507 motion. With respect to the prosecutorial misconduct issue, the Court of Appeals found that Wimbley had not raised the issue in his 1507 motion and noted that the issue of prosecutorial misconduct had been raised and decided in the direct appeal. Wimbley II, 2004 WL 1191449, at *9.

Four years later, in July 2008, Wimbley filed a second 1507 motion, again claiming ineffective assistance of his trial counsel for failing to object to prosecutorial misconduct during closing argument. This time, Wimbley's complaint singled out the prosecutor's statement that premeditation can occur in an instant. The motion also faulted Wimbley's direct appeal counsel for failing to claim prosecutorial misconduct for the closing argument misstatement of the law on premeditation, instead of using the prosecutor's misstatement of law to bolster an insufficiency of the evidence issue. Wimbley argued that the district court should address the merits of his claim because of an intervening change in the law effected by the Supreme Court's decision in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001), which was filed November 9, 2001, approximately 4 months after Wimbley I. The second 1507 motion also requested DNA retesting on the murder weapon.

With respect to the prosecutorial misconduct question, the district court found Wimbley's second motion to be successive and untimely. It denied the motion without reaching the merits. In denying Wimbley's request for DNA retesting, the district court noted that DNA evidence on the firearm had not been used to convict Wimbley because the State had not presented such evidence at trial, and that Wimbley's own expert had informed the jury at trial that all of the State's DNA evidence was unreliable because of cross-contamination between different items of evidence.

Wimbley appealed and filed a pro se brief. The issues identified in that brief claimed: (1) appellate counsel in the direct appeal was ineffective for failing to frame the issue of the misstated law on premeditation as prosecutorial misconduct, instead of an attack on the sufficiency of the evidence; (2) trial counsel was ineffective for failing to object to the prosecutor's misconduct during closing argument, including the prosecutor's misstatement of the law on premeditation; (3) appellate counsel in the appeal of the first 1507 motion was ineffective for failing to have the case remanded to the district court for rulings on the prosecutorial misconduct issues; (4) the district court erred in allowing prior crimes evidence without a limiting instruction; (5) the district court should have ordered that the DNA found on the murder weapon be retested; and (6) newly discovered evidence warranted a new trial. The State's brief relied solely on the argument that Wimbley's second 1507 motion was successive and that he had not established exceptional circumstances to warrant the consideration of a successive motion.

The Court of Appeals reversed the...