Archive for the ‘Ineffective assistance’ Category

Decision: Harris v. State

April 5, 2009

March 27th. The Kansas Supreme Court has issued its opinion in Harris v. State (No. 98,845), a collateral attack upon a murder conviction. In a unanimous opinion, written by Justice Rosen, the court rejected DeAndre Harris’ appeal for habeas relief, rejecting his claims of ineffective assistance of counsel.

Harris and another man, Code Laster, were convicted of shooting Paul Moore to death in 1996. Both men’s defense had been to claim that another man was the guilty party. The Kansas Supreme Court rejected Harris’ direct appeal in 1998. In a series of motions since 1999 Harris has sought to raise a claim that he was not adequately represented by his trial attorney. The District Court ultimately rejected these claims in 2004 and after some changes in appointed appellate counsel the Kansas Supreme Court addressed the case in this decision. Meanwhile, Harris’ co-defendant Laster also brought a habeas action claiming ineffective assistance of counsel. He lost, the Court of Appeals dispensing with his petition in 2006.

Harris raised three claims in his habeas petition, that he maintained showed he was inadequately defended. These were that:

  1. His attorney should have sought an instruction to the jury on ‘conspiracy to murder’, as an alternative crime for them to convict on.
  2. His attorney should have sought a separate trial, instead of his having been tried with Laster.
  3. His attorney should have developed facts in the preliminary hearing to facilitate a motion to dismiss.

The Kansas Supreme Court rejects all three arguments:

  1. During the preliminaries of the trial, a charge of ‘conspiracy to murder’ had been dismissed. Since ‘conspiracy to murder’ is not a lesser included offense of murder, the trial court could not have issued an instruction to the jury on it, whether one was requested or not.
  2. None of the established reasons for severing a trial of two co-defendants was present in this case, indeed Laster and Harris presented the same defense. Therefore counsel’s ‘failure’ to request a severance was not defective.
  3. Harris’ third and final issue was not elaborated upon in his brief and was therefore deemed to be abandoned.

Consequently, Harris will remain in gaol, serving a life sentence without the possibility of parole until 2022.


Decision: State v. Robertson

February 9, 2009

February 6th. The Kansas Supreme Court has issued its opinion in State v. Robertson (No. 95, 188 ) a collateral attack upon a life sentence without possibility of parole for 50 years. In a unanimous opinion, written by Justice Beier, the Court rejected Joshua Robertson’s claim of ineffective assistance of counsel at the original trial. It found that he had suffered received ineffective assistance of counsel during the proceedings under his habeas petition, however he had not suffered an injury as a result. Therefore his appeal was rejected.

Joshua Robertson was involved in the murder of his girlfriend’s mother and the burning of her home. He was convicted and sentenced to the ‘hard 50’. His direct appeal was rejected by the Kansas Supreme Court in 2005. In this case, he submitted a habeas petition that argued a great many claims, ranging from violations of his Miranda rights, to illegal searches under Terry v. Ohio to ineffective assistance at trial and on appeal. The Kansas Supreme Court found that all of these were either procedurally defaulted by failure to raise them at trial, or because he had brought them up (and lost) on his original appeal. Since a general exception to the various procedural default rules comes into play when ineffective assistance of Counsel is involved (since if proven it can re-open the door to the otherwise barred claims), the Court examined the record and found that his counsel had not been ineffective.

In the early stages of this action, the District Court which received the habeas petition chose to hold a non-evidentiary hearing and appointed counsel to represent Robertson at that hearing. The appointed counsel discussed the case with the Judge and concluded that many of his client’s claims were meritless, and the Judge denied the motion. In Robertson’s appealĀ  he argues that his appointed counsel for the habeas action was ineffective. The Court of Appeals agreed with him but asserted that since there was no Constitutional Right to Counsel in such proceedings (merely a statutory right) he needed to prove a higher degree of prejudice than he would have needed to had the right in question been a Constitutional one.

The Kansas Supreme Court overrules the Court of Appeals on this point: the origins of the effective counsel right may differ but the legal test remains the same. Having done so, the Court ruled that Robertson’s appointed counsel for the habeas petition had indeed been ineffective as he had not advocated for his client but had undermined his client’s arguments. However, despite returning to the normal test for prejudice the Court concluded that Robertson had not suffered any prejudice as a result of these deficiencies. [Note: It should also be noted that the Court decided to hear this allegation on this motion. Normally, ineffective assistance claims require a new habeas motion to be submitted to District Court. In this case the Court concluded that the record was sufficient, and the merits of the case clear cut enough to dispense with that requirement].

The Court therefore rejected or foreclosed all of Robertson’s habeas claims (noting that the case was so clear that had the District Court opted to simply summarily deny the claim without conducting a hearing it would have affirmed that decision as well). Robertson’s sentence is therefore upheld once again.

Decision: State v. Trotter

February 7, 2009

January 30th. The Kansas Supreme Court has issued its opinion in State v. Trotter (No. 98,563) a collateral attack on Christopher Trotter’s capital murder and first-degree murder convictions for the killings of Traylennea Huff and James Wallace. In a unanimous decision authored by Justice Luckert, the Court vacated Trotter’s first-degree murder conviction as multiplicitous with the capital murder conviction. (I.e. the conviction was for the same crime), but also affirmed the District Court’s summary denial of the rest of Trotter’s habeas claim (concerning witnesses changing their testimony). Trotter was sentenced to fifty years without parole for the capital murder conviction, a sentence unaffected by the removal of the first degree murder conviction.

Trotter, Kevin Eddington, Michael Navarre and Virdal Nash planned and executed a botched home invasion robbery of Huff and Wallace’s home (Nash left before the robbery began). Trotter’s comrades testified that he was the mastermind behind the plan and that when Wallace fought with Trotter and removed a shirt from his head that he had been using to mask his identity, Trotter had shot him. They further testified that they had encountered Huff upstairs in the house, and that after they left (and Trotter went in) they heard him shoot her. Huff and Wallace’s 8-year old son Damante survived the incident and testified that he heard his father say ‘Chris’, saw Trotter in the house and heard the shootings. At trial he identified Trotter as the killer. Trotter was convicted and lost his direct appeal on various grounds, though the jury did not choose the death penalty. The capital murder conviction was for the premeditated intentional killing of two or more people. The first degree murder conviction was for the killing of Wallace.

He filed a habeas motion attacking his sentence on two grounds: the first was that his sentence for first degree murder was multiplicitous with the capital murder conviction. The Court agreed that it was: the capital murder conviction was for killing two or more people, one of whom was Wallace. All the components of the first degree murder conviction were therefore related to the same crime as the capital murder conviction, and first degree murder is a lesser included offence of capital murder. Under Double Jeopardy, Trotter could not be convicted of both charges. Trotter however had to pass a procedural barrier first, since he had not raised this issue on direct appeal. Such issues may not be raised in habeas actions without exceptional justifying circumstances. In this case Trotter argued (and the Court agreed) that he had ineffective assistance from the Kansas Appellate Defenders Office, since they were aware of the Court’s previous ruling that these two crimes were multiplicitous at the time his original appeal was filed, but omitted the claim. Trotter’s first degree murder conviction was therefore vacated. [Since his sentences for both crimes were concurrent anyway, and the capital murder sentence was higher the impact of this is on paper only].

Attached to Trotter’s habeas petition were two affidavits. One signed by Eddington, and one by Nash which purport to refute their trial testimony about Trotter’s masterminding the crime. The District Court dismissed this motion on the grounds that it was vague (Trotter had not filled out all the paperwork as required), but the Kansas Supreme Court overlooks that, ruling that the affidavits being attached should have been considered. It then does this and affirms the dismissal of the motion. It finds that even if the affidavits are accepted as true, all they do is refute the suggestion that Trotter was behind the robbery: something that is irrelevant to his conviction for the two murders, since the State did not need to prove that he was the mastermind behind the robbery to secure his conviction.

Decision: State v. Overstreet

February 3, 2009

January 30th. The Kansas Supreme Court has issued its opinion in State v. Overstreet (No. 95,682). In a unanimous opinion, written by Justice Davis the Court vacated Jason Overstreet’s convictions for aggravated assault and attempted first-degree murder. Overstreet’s case is remanded for a new trial. Note: Robert Davis, the author of the opinion is now the Chief Justice of the Court following the retirement of previous Chief Justice Kay McFarland. At the time this case was argued, McFarland was still on the Court.

On Pearl Harbor Day, 2004 Damian McCall was followed home from a Wichita drive thru by a Chevy Tahoe containing at least two men. When he got home and parked, one of the men emerged from the Tahoe and fired several shots at his vehicle with a handgun. McCall was unharmed since he ducked down when he saw the weapon and rammed the Tahoe with his SUV, causing it to flip over and its occupants fled.

Police subsequently apprehended several men, not including Jason Overstreet, however some evidence tied Overstreet to the scene and the owner of the vehicle claimed she had lent it to a man named “Jason”. Overstreet was therefore tried as an accomplice since the State argued that he had been the driver. Two of the men who had been arrested on the night of the shooting had told police that the driver was someone else.

At trial, when the State did not call either of these two men as witnesses Overstreet’s defense counsel applied for and gained a one-day continuance to find them, since he had not arranged for them to be called as witnesses. He located one, but when he testified he erroneously stated that he had identified Overstreet as the driver (this error was corrected by another witness). During deliberations the jury asked for subsequent instructions on one occasion. Later, the jury announced that it had reached a unanimous verdict on the assault charge but had not reached one on the attempted murder charge. The court instructed the jury to continue deliberating and an hour later they returned a guilty verdict on both counts.

Overstreet appealed on multiple grounds which included 1) a claim that the jury instructions misstated the law on aiding and abetting, 2) a claim of prosecutorial misconduct over the prosecutor’s summing up of the same, 3) a claim that the additional instructions issued by the court to the jury should not have been permitted and 4) a claim of ineffective assistance of counsel. After some back and forth, he lost his appeal in an unpublished opinion issued last year. In his appeal to the Kansas Supreme Court he prevailed on three of these.

The Court held that the instructions to the jury did indeed misstate the law. The key issue at play here is that Overstreet was charged with attempted first-degree murder. The key component in first degree murder is intent. In the jury instructions that were issued the trial court included two separate statements, one which emphasised this point and one which noted that aiding and abetting can be applied to a case where the defendent could reasonably forsee that a certain outcome would stem from their actions. The Court held that this language could lead the jury to believe that they did not have to find intent beyond a reasonable doubt, when in fact they did to be able to convict, thus Overstreet’s attempted murder conviction was reversed.

The claim of prosecutorial misconduct stemmed from the same issue, except that the argument was that the prosecutor made the same misstatement of the law. The Court rejected this argument since the prosecutor’s summary was in line with the jury instructions and could not therefore be called misconduct.

The Court held that the trial court erred when it instructed the jury to continue deliberating after it had reported that it had reached a verdict on one charge but not the other. While the language of the opinion still preserves some latitude for Courts in this sort of situation it holds that based on the facts of this case, it went too far and seemed to be pushing the jury in the direction of a verdict.

Finally the Court ruled for Overstreet on his claim of ineffective assistance of counsel, thus vacating his assault conviction also. Overstreet’s theory of defense had been that he was not the driver and was not present. His attorney nonetheless had not arranged for the sub-poena of two witnesses who would have testified to this effect, and spent minimal time in preparing the witness who was found. As a result, this witness mistakenly claimed he had seen Overstreet driving the vehicle, something which caused the jury confusion. This was enough to remand the case for a new trial.