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Ludlow v. State

April 20, 2007


Appeal from Douglas District Court; JACK A. MURPHY, judge.


1. Even though K.S.A. 60-1507 motions are civil actions, as a pleading, they make up a subset distinct from ordinary civil petitions. By statute and rule they must contain all perceived grounds for relief unlike the notice pleadings found in most civil petitions.

2. The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

3. Exculpatory evidence tends to disprove a fact in issue which is material to guilt or punishment of a defendant. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence of the outcome.

4. When an evidentiary hearing has been held by the district court, the standard of review for an appeal of a denial of a K.S.A. 60-1507 motion for ineffective assistance of counsel is whether the court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the conclusions of law.

5. The standard of review when examining a claim of ineffective assistance of appellate counsel is the same as ineffective assistance of trial counsel. Before appellate counsel's assistance requires reversal of a conviction, an appellant must establish (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.

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


Before RULON, C.J., MALONE and HILL, JJ.

This appeal arises from the district court's denial of habeas corpus relief to James Ludlow. Ludlow filed a K.S.A. 60-1507 motion on the last day it could be filed, presenting three general grounds for relief. His claims included ineffective assistance of both trial and appellate counsel, failure of the State to produce exculpatory evidence, and a sheriff's report that depicted a domestic dispute between the victim and his girlfriend. The district court dismissed as time barred several additional claims of ineffective assistance that were first raised in Ludlow's trial brief, filed 14 months after Ludlow's K.S.A. 60-1507 motion was filed.

We uphold that dismissal because a motion filed under K.S.A. 60-1507 is a pleading that is a subset distinct from ordinary civil petitions. As required by statute and Supreme Court Rule, such a motion must contain all of the grounds for relief. Since the statute of limitations for this type of relief had expired in his case, Ludlow could not subsequently amend his motion and have it relate back to the day his original motion was filed. We also hold that there is substantial evidence in the record that supports the district court's conclusion that Ludlow received effective assistance from his trial and appellate counsel. Furthermore, Ludlow has failed to show that his defense was prejudiced by not having the sheriff's report because extensive evidence of the violent relationship between the victim and his girlfriend was presented at trial. Finally, we conclude the trial court did not err while ruling on this motion when it adopted the facts of the underlying crime of conviction as stated in our Supreme Court's ruling in the direct appeal. We affirm.

Underlying Criminal Conviction and Prior Proceedings

Ludlow was found guilty of murder in the second degree, attempted murder in the first degree, and theft. He was sentenced to a controlling term of 25 years to life imprisonment in May 1993. Ludlow appealed his convictions to the Supreme Court, arguing that the district court erred in instructing the jury regarding voluntary intoxication. The Supreme Court rejected Ludlow's claim and affirmed his convictions. State v. Ludlow, 256 Kan. 139, 883 P.2d 1144 (1994). The facts of the crimes were recounted in detail by the Supreme Court in Ludlow's direct appeal and need not be repeated here.

Greatly condensed, the case history reveals that the charges arose from a homicide in Douglas County where Tracy Robbins was shot and killed, and his girlfriend, Valerie Hartley, was shot and injured. Hartley identified Ludlow, a roommate of Robbins and Hartley, as the shooter. The State claimed that Ludlow committed the crimes with Robbins' .30-06 caliber rifle. At trial, Ludlow primarily asserted a voluntary intoxication defense. Ludlow testified that shortly before the shootings, he consumed approximately 17 shots of whiskey and some beer; consequently, he had no memory of the shootings. Despite that, Ludlow also suggested that Hartley committed the crimes.

On June 30, 2004, Ludlow filed a motion under K.S.A. 60-1507 alleging that he was denied effective assistance of counsel both at trial and in his direct appeal. That was the last day he could file such a motion. In the motion he listed eight allegations of ineffective assistance of trial counsel. Ludlow focused on trial counsel's investigation deficiencies; failure to retain an expert to examine the bullet casings, slugs, and fragments; failure to request a new trial upon the discovery of misplaced evidence; and failure to follow up on the results of ballistic testing. Moving on, Ludlow made three allegations of ineffective assistance of appellate counsel, focusing on appellate counsel's failure to raise an ineffective assistance claim on appeal; failure to request a new trial upon the discovery of misplaced evidence; and failure to follow up on the results of ballistic testing.

The district court received evidence on Ludlow's motion. Ludlow called a number of witnesses at the hearings, including his trial counsel, Harry Warren. Warren testified that after he was appointed to represent Ludlow, he met with the prosecutor, reviewed police reports, and met with Sheriff Loren Anderson. Warren met with Ludlow on numerous occasions and interviewed several additional witnesses. Warren also reviewed evidence in police custody and visited the crime scene shortly before trial.

In addition, Warren testified that Ludlow had very little memory of what occurred, and the State had a strong case against him. After consulting with Ludlow, Warren concluded that the facts of the case supported an intoxication defense. Warren believed that an intoxication defense was the most effective way to minimize Ludlow's exposure to the maximum penalty. Accordingly, Warren located a psychiatrist to testify at trial regarding the effects of Ludlow's alcohol consumption.

Further support for Ludlow's position came from the testimony of Mike McCaffrey, a retired police detective who was hired by Ludlow's brother to conduct a private investigation. McCaffrey was asked to determine whether any bullets remained at the scene of the crime, Robbins' home. McCaffrey testified that no bullets were found, but Detective Don Crowe from the Douglas County Sheriff's Office had shown him the remains of three bullets in Crowe's office on April 10, 1993. Crowe believed that the bullets were discovered in Robbins' home.

Numerous records were also admitted at the hearings. One of the documents was an evidence list prepared by Crowe on November 22, 1992. The list detailed the evidence that was in police custody, which included the following: a Browning .30-06 gun; a .30-06 shell casing; a live .30-06 round; a bullet casing; a bullet jacket and bullet fragments from the downstairs bedroom; a bullet fragment; and crown molding with a bullet fragment.

All of the ballistics items were sent to the Kansas Bureau of Investigation (KBI) in May of 1994 for testing. The KBI reported the results of their examination indicating that the fragments and bullets "retained insufficient individual characteristics to determine if they were fired by the Browning 30-06 rifle." The KBI concluded that "[t]he results of these examinations were inconclusive." On the other hand, the KBI did conclude that the two .30-06 cartridge cases were fired by the Browning rifle. The ballistic items were forwarded to the Bureau of Alcohol, Tobacco, and Firearms (ATF) for further testing. The ATF concluded that because the fired shell casings were from different manufacturers than the live round, "no further comparative analyses are warranted."

Going on, Cecilia Wood, a private investigator retained for Ludlow, also testified. She stated that she had observed bullet fragments which were in police custody. Although Wood admitted she was not a ballistics expert and conducted no tests, she suggested that the newly discovered fragment appeared to be a .22 caliber bullet.

Ludlow also presented deposition testimony of Lester W. Roane, a ballistics expert. Roane was retained to examine the bullet fragments and determine "to what extent they were consistent with having been fired from a thirty ought six or other gun." After conducting his examination, Roane concluded that the items consisted of the following: one unfired .30-06 cartridge; two fired .30-06 cartridges; one large .30 caliber bullet fragment with diameter and class marks that were consistent with some .30-06 caliber bullets; two bases from .30 caliber bullets with class marks matching the large .30 caliber bullet fragment but not enough individual marks to match with each other or a specific firearm; and four items that were too small and too damaged to be of any particular value in matching them to a firearm. Roane thought the newly discovered fragment was a lead core from a jacketed bullet that could have come from one of several different calibers of handguns and rifles, but it was not fired from a .22 caliber firearm.

Continuing in his deposition, Roane testified that several of the items appeared to be bullet fragments, but he could not definitively determine what they were. Roane summarized his conclusions regarding the remainder of the items:

"I determined that certainly some of them were fired in the thirty ought six, the two fired cartridge cases. There was one unfired cartridge that was also in caliber thirty ought six. I found that some of the bullets and fragments could have been fired in [a] thirty ought six. They were consistent with having been but since I had no evidence gun to compare it to, I couldn't say definitively that it was or wasn't fired from a thirty ought six."

Another expert, Dr. Gary L. Baker also testified. Baker treated Hartley after the shooting. He thought that, based on Hartley's gunshot wound, she was shot with a small bullet with a low velocity. In his opinion, the wound was caused by a handgun instead of a rifle. But Baker admitted that he had no expertise in determining bullet calibers. On cross-examination, Baker acknowledged that Hartley may have been shot with a .30-06 caliber bullet.

Ludlow also presented the testimony of Dr. Edward Friedlander, a pathologist. Friedlander reviewed several documents, including Tracy Robbins' autopsy report, Baker's surgical records of Hartley, the crime scene diagram, and a report from an interview of Hartley. Based on the entry and exit wounds described in Robbins' autopsy, Friedlander questioned the accuracy of the report and the position Robbins was in when he was shot. However, on cross-examination, Friedlander admitted that the documents he was provided were confusing and he could not state that Hartley's testimony was inaccurate.

Finally, Ludlow presented the testimony of Edward Collister, an attorney. After reviewing Ludlow's case files and listening to the evidence presented at the K.S.A. 60-1507 hearings, Collister concluded that the representation provided by Ludlow's trial counsel was deficient and Warren's representation put Ludlow's conviction in question. Collister believed that trial counsel should have done a more thorough investigation, and he questioned counsel's ...

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