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Silvers v. State

January 11, 2008

DAVID J. SILVERS, APPELLANT,
v.
STATE OF KANSAS, APPELLEE.



Appeal from Sedgwick District Court. DAVID W. KENNEDY, judge.

SYLLABUS BY THE COURT

1. When an evidentiary hearing has been conducted in the district court, as here, our standard of review from a denial of a K.S.A. 60-1507 motion is findings of fact and conclusions of law. Under this standard, an appellate court must determine whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the district court's conclusions of law. Ultimately, the district court's conclusions of law and its decision to grant or deny the 60-1507 motion are reviewed using a de novo standard.

2. Before defense counsel's assistance is determined to be so defective as to require reversal of a conviction, a 1507 movant must establish first that trial counsel's performance was deficient. In other words, trial counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Second, movant must establish trial counsel's deficient performance prejudiced the defense. This requires a showing trial counsel's errors were so serious as to deprive movant of a fair trial.

3. Clearly, criminal defendants are not entitled to have the jury instructed on jury nullification, but the jurors in a criminal case have the clear ability to disregard both the rules of law and the evidence in order to acquit a defendant.

4. When defense attorneys have made an educated, well-considered decision to rely on a jury nullification strategy, appellate courts have generally concluded such attorneys afforded effective assistance of counsel. But, when jury nullification strategy is presented haphazardly or in preference for other defenses with a likelihood of success, appellate courts have concluded such attorneys were ineffective.

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

Affirmed.

Before RULON, C.J., GREENE, J., and BRAZIL, S.J.

Movant David J. Silvers appeals the denial of his K.S.A. 60-1507 motion, following an evidentiary hearing in the district court. We affirm.

The issue on appeal is whether there was substantial competent evidence that movant's trial counsel was competent.

Underlying Facts

On April 27, 2003, S.M., the 13-year-old, female victim, was spending the night with her friend Amber at Amber's aunt's apartment. Shortly after the victim and Amber arrived at the apartment, James Taylor arrived with his friend, movant. Eventually, the victim was left alone with the two men.

The victim testified she was given alcohol, marijuana, and an unidentifiable pill. The victim fell asleep and was on the floor naked when she awoke. One of the men was penetrating the victim vaginally, and the other was about to place his penis in the victim's mouth. The victim could not tell which man was on top of her, but she immediately told the man on top of her to get off and found her clothes.

After getting dressed, the victim called her sister to pick her up. The victim was taken to the hospital where a sexual assault examination was performed. The examination revealed (1) tearing and redness in the victim's vagina consistent with injury due to the force of insertion; (2) tearing and redness around the victim's rectum; and (3) a plastic dome-shaped object inside the victim's vagina which one of the State's DNA analysts later testified had possibly been attached to the tip of a condom. Semen attributable to movant was found on a rectal swab and in the middle and rear sections of the victim's underwear. No ...


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