KIRK T. WILSON, Appellee/Cross-appellant,
STATE OF KANSAS, Appellant/Cross-appellee
[Copyrighted Material Omitted]
Appeal from Atchison District Court; ROBERT J. BEDNAR, judge.
BY THE COURT
1. When a defendant seeks to set aside the result of a criminal trial on the ground that his or her defense counsel provided ineffective assistance, the defendant has the burden to show (1) that the attorney's work was below minimum standards and, thus, was constitutionally deficient; and (2) that the attorney's substandard work prejudiced the defense.
2. In determining whether the attorney's substandard work prejudiced the defense, the court must consider the cumulative effect of the attorney's work that was below minimum standards.
3. The district court does not abuse its discretion by allowing expert testimony regarding the effectiveness of trial counsel and its effect on the trial.
4. On the facts of this case, the defendant demonstrated that his trial attorney's representation was below minimum standards and that this prejudiced the defense. Accordingly, the defendant is entitled to a new trial.
Kristafer R. Ailslieger, deputy solicitor general, for appellant/cross-appellee.
David E. Everson, pro hac vice, Victoria L. Smith, and Patrick A. Edwards, of Stinson Leonard Street LLP, of Wichita, for appellee/cross-appellant.
Before LEBEN, P.J., PIERRON and STEGALL, JJ.
Kirk Wilson was convicted of the murder of Kurt Boldridge based in part on the testimony of John Goodpasture, who said he witnessed the murder. But the district court later set aside Wilson's conviction and ordered a new trial after it concluded that his trial attorney had provided representation below constitutionally required minimum standards.
The State has appealed, but the facts found by the district court after 2 days of evidence support its conclusion that Wilson's attorney provided inadequate representation. Among the key failings:
o Goodpasture said the murder took place on a Saturday night, but at least five people told police that either they or someone they knew had seen or spoken to Boldridge afterward, including two witnesses who saw him on Monday. Wilson's attorney did not present that evidence to the jury.
o Goodpasture made highly inconsistent statements to law-enforcement officers about the murder. Although Wilson's attorney did cross-examine Goodpasture about some inconsistencies, the attorney left many very significant ones unexplored.
o Goodpasture had written letters that contradicted his statements to police. Wilson's attorney did not present the letters to the jury.
o Police recorded conversations involving Wilson and another person without Wilson's knowledge, and Wilson's comments during those conversations suggested he was not involved in the murder and did not even recognize a person Goodpasture said had also been present with Wilson at the murder. Wilson's attorney did not present those tape recordings to the jury.
The district court concluded that there was no reasonable strategic reason to fail to present the noted evidence or to more thoroughly cross-examine Goodpasture, the only claimed eyewitness who testified. We agree that by not offering this evidence or more thoroughly cross-examining Goodpasture, Wilson's attorney must have either failed to familiarize himself with the evidence in the case or used an objectively unreasonable trial strategy.
See In re Care & Treatment of Ontiberos, 295 Kan. 10, 33, 287 P.3d 855 (2012). We also agree with the district court that this worked to Wilson's substantial detriment, i.e., there is a reasonable probability that the trial's outcome would have been different had Wilson's attorney provided minimally effective representation. We therefore affirm the district court's judgment, which requires that Wilson receive a new trial.
Factual and Procedural Background
The claims before us are intimately tied to the facts of both the underlying prosecution of Wilson and the actions of his trial attorney in defending him. Accordingly, we must set out the facts in substantial detail.
Wilson was convicted in 2001 of premeditated first-degree murder. On the initial,
direct appeal from a conviction, the appellate court must look at the evidence in the light most favorable to the State, since the factfinder (in Wilson's case, a jury) has found in the State's favor. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). Applying that standard in Wilson's direct appeal, the Kansas Supreme Court summarized the facts in the light most favorable to the State:
" Kirk Wilson was convicted of the premeditated first-degree murder of Kurt Boldridge. Wilson and Boldridge had both been married to the same woman, Sandra White. Wilson was married to Sandra first. Before divorcing in 1991, Wilson and Sandra had a son named Matt. Sandra was married to Boldridge from October 1998 to October 1999, a time in which Wilson was incarcerated. Wilson's son Matt lived with Sandra and Boldridge during their marriage. Wilson was released from prison on March 13, 2000.
" On March 24, 2000, Boldridge's mother contacted the Atchison County sheriff's office and requested that they check on Boldridge's welfare because she had not seen or heard from him in nearly a week. When officers reached Boldridge's house they could smell the decay of a dead body from outside the house. The house was secure, and there was no evidence of forced entry. Because all of the windows were locked, sheriff's deputies had to break part of the glass from a window to enter the house.
" Deputies discovered Boldridge's body on the bed with a comforter completely covering him. The body was decayed enough that the coroner could not immediately determine the cause of death at the scene, so he ordered an autopsy. Besides Boldridge's dead body, nothing else in the house appeared out of place. Nothing appeared to be missing, and there was no evidence of a fight or a struggle.
" An autopsy established that Boldridge died from a shotgun blast to his left temple. There was wadding from the shotgun shell inside Boldridge's head, indicating that he had been shot at close range. There were no other injuries on his body. Insect larvae in Boldridge's body indicated that he had been dead for at least 3 days and possibly longer.
" News of the gruesome discovery leaked out quickly. Wilson's current wife Kim heard about Boldridge's death within hours of the discovery of his body and telephoned her sister to inform her of Boldridge's death and advise her that she thought Wilson was involved. Kim's sister immediately contacted the Atchison police to report Kim's statements.
" The investigator for the sheriff's department interviewed Wilson on March 28, 2000. Wilson denied any involvement in Boldridge's death, but stated that he heard about it on the weekend of March 18, 2000, 6 days before Boldridge's body was discovered.
" In August 2000, Kim called police because Wilson had beaten her. Kim reported that while he was attacking her, Wilson stated that he had killed Boldridge and they were coming to arrest him for that, so he might as well kill her too.
" John Goodpasture was sleeping on the Wilsons' couch while Wilson was beating Kim. After beating Kim, Wilson attacked Goodpasture and began beating him. Wilson drug Goodpasture into the bedroom and accused him of having an affair with Kim. During the fight, Wilson told Goodpasture, 'if you think what happened to that nigger was bad, wait until you see what happens to you, and Gary [Skeen] [is] going to get it twice as bad.' Fearing for his life, Goodpasture jumped through the glass in the bedroom window to escape from Wilson's fury.
" Soon after Wilson beat Goodpasture, Goodpasture started talking to police about Wilson's involvement in Boldridge's death. According to Goodpasture's story, Goodpasture and his friend Gary Skeen were at their friend Harold Gillis' house when Wilson arrived at approximately 1 a.m. on March 19, 2000. Wilson was very upset, proclaiming that Boldridge had made Wilson's son Matt perform oral sex on Boldridge. Goodpasture stated that Boldridge's current wife Lisa had informed Wilson about the alleged abuse of Wilson's son. Wilson was so upset that he said he
was going to kill Boldridge and showed Goodpasture a gun that was tucked in his pants. Lisa Boldridge arrived at the Gillis' house after Wilson and encouraged Goodpasture to participate in killing Boldridge by telling him that Boldridge had cocaine and Goodpasture could have it in return for his participation.
" Wilson, Goodpasture, Gary Skeen, and Lisa Boldridge left Gillis' house and drove to Boldridge's house. When they arrived, Lisa Boldridge let the other three into the house and led them to the bedroom, where Boldridge was sleeping. Lisa got a shotgun and some shells and gave them to Wilson. Wilson approached Boldridge as he lay sleeping and shot him. Afterwards, Goodpasture and Skeen looked briefly for the cocaine but decided to leave before finding anything.
" Wilson, Skeen, and Goodpasture left in one car and drove to the Atchison park on the Missouri River. Lisa Boldridge left in another car and met the others at the park. Wilson threw the shotgun into the Missouri River. Although Goodpasture told law enforcement several different versions of the story and admitted that he lied to law enforcement several times, he insisted that his story implicating Wilson as the shooter was truthful.
" The State filed a complaint/information charging Wilson with first-degree premeditated murder in December 2000. At trial, the State relied on testimony from Kim and Goodpasture to establish Wilson's involvement in Boldridge's death. In addition to testifying that Wilson admitted to killing Boldridge, Kim testified that Wilson began checking the newspaper for articles about Boldridge's death before Boldridge's body was discovered.
" To impeach Goodpasture's testimony, Wilson elicited evidence that Goodpasture had entered into a plea agreement allowing him to plead guilty to a severity level 7 felony with a sentence of probation in return for his testimony against Wilson. Goodpasture testified that he would do almost anything to avoid going to prison for murder. Wilson also impeached Goodpasture with the various stories and lies he told to law enforcement. In response, Goodpasture testified that he lied until he knew he had to pass a polygraph test.
" . . . The district court sentenced Wilson to life in prison with no possibility of parole for 25 years." State v. Wilson, 281 Kan. 277, 278-80, 130 P.3d 48 (2006).
The Kansas Supreme Court affirmed Wilson's conviction.
In 2007, Wilson filed a motion for habeas relief under K.S.A. 60-1507, claiming that his trial counsel, Michael Waite, had been ineffective. The petition said that Waite had failed to introduce material evidence and had failed to offer police reports and witnesses to impeach State witnesses' testimony. Waite was indefinitely suspended from the practice of law in Kansas in 2007 for misuse of another client's money. Waite died in 2008 and thus was not available to testify at Wilson's habeas hearing.
Wilson sought leave in 2011 and 2012 to amend his habeas claim. The district court denied his request to add two claims--that Waite had failed to present evidence that Lisa acted alone in murdering Kurt and that at Lisa's trial the State directly contradicted the theory of motive it later attributed to Wilson at his trial. The court found the issues were different in time and type from the claims raised in the original petition and thus were time barred.
The district court held a 2-day evidentiary hearing on Wilson's claims in January 2013. Judge Robert Bednar handled this hearing; a different judge had presided at Wilson's criminal trial in 2001.
At the evidentiary hearing on Wilson's habeas claims, Wilson's counsel asked him why he had told the police that he had heard about the murder on Friday, March 17, 2000, when the body had not been found until March 24. Wilson said that he had initially told the police that he knew it was a Friday and that they had pressured him to say whether it was the 17th or the 24th. Unsure of the date, he said, he simply picked the 17th. Wilson said that between his preliminary hearing and trial he had only met with Waite two or three times for no more than 30 minutes each time. Wilson said that Waite
never went over the witness list Wilson ...