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Calhoun v. State

Court of Appeals of Kansas

July 27, 2018

Daniel L. Calhoun, Appellant,
v.
State of Kansas, Appellee.

         SYLLABUS

         1. Appellate courts exercise de novo review when considering trial courts' denial of a K.S.A. 60-1507 motion based on the motion, files, and record of the case following a preliminary hearing. This is because appellate courts are in the same position to rule on the merits of the case as trial courts. For this same reason, if the motion, files, and record of the case establish that a K.S.A. 60-1507 movant has been prejudiced by counsel's ineffectiveness, appellate courts may reverse a defendant's unconstitutional conviction without first remanding for an evidentiary hearing on the movant's K.S.A. 60-1507 motion.

         2. In State v. Overstreet, 288 Kan. 1, 13, 200 P.3d 427 (2009), our Kansas Supreme Court held that a defendant must have the same specific intent to commit the crime as the principal for the defendant to be convicted of a specific intent crime under a theory of aiding and abetting.

         3. When a defendant is charged with specific intent crimes under a theory of aiding and abetting, a jury should be given the aiding and abetting same mental culpability instruction, but not the aiding and abetting foreseeability instruction. If the defendant is charged with both specific intent and general intent crimes, the trial court must instruct the jury that it can use an aiding and abetting foreseeability instruction only when considering if the defendant is guilty of general intent crimes.

         4. In this case, the movant's trial counsel provided ineffective assistance of counsel by failing to object to the aiding and abetting jury instruction that told the jury it could convict him of specific intent crimes if it found that the specific intent crimes were a reasonably foreseeable consequence of his intended crime. The movant's appellate counsel also provided ineffective assistance of counsel by failing to raise this issue on direct appeal. Moreover, under the facts of this case, both trial counsel's and appellate counsel's performances resulted in prejudice to the movant as to movant's specific intent convictions of aggravated kidnapping, attempted voluntary manslaughter, and criminal threat.

          Appeal from Sedgwick District Court; Stephen J. Ternes, judge.

          Kristen B. Patty, of Wichita, for appellant.

          Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Standridge, P.J., Green and McAnany, JJ.

          Green, J.

         Daniel L. Calhoun appeals the trial court's denial of his K.S.A. 60-1507 motion following a preliminary hearing. On appeal, Calhoun argues that the trial court's judgment denying his K.S.A. 60-1507 motion was erroneous. Calhoun contends that he was entitled to a new trial on his nine felony convictions based on trial errors, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. Of Calhoun's many issues, we find only one has merit: that his trial and appellate counsel provided ineffective assistance that resulted in prejudice because they did not challenge the giving of an aiding and abetting foreseeability instruction. The giving of the aiding and abetting foreseeability instruction with specific intent crimes directly contradicts our Supreme Court's holding in State v. Overstreet, 288 Kan. 1, 12-13, 200 P.3d 427 (2009). Because the motion, files, and records of Calhoun's case show that Calhoun suffered prejudice based on his counsel's failures with regard to his aggravated kidnapping, attempted voluntary manslaughter, and criminal threat convictions, we reverse those convictions and remand for a new trial. Accordingly, we affirm in part, reverse in part, and remand.

         Calhoun's Underlying Criminal Case

         A jury convicted Calhoun of aggravated kidnapping, aggravated criminal sodomy, attempted voluntary manslaughter, aggravated burglary, criminal threat, two counts of aggravated robbery, and two counts of aggravated battery. Calhoun's attempted voluntary manslaughter conviction was the lesser included offense of attempted intentional second-degree murder. The jury also acquitted Calhoun of rape and three counts of aggravated criminal sodomy.

         The trial court instructed the jury that they could convict Calhoun if they believed he was either the principal or an aider or abettor in the commission of the crimes. The aiding and abetting jury instruction included language that told the jury it could convict Calhoun of any of the crimes even if he was not the principal, so long as they believed that the crimes were a "reasonably foreseeable" consequence of the intended crime. Calhoun's three accomplices in commission of the crimes were Christopher Thompson, Isaac Little, and M.D. M.D., who was a minor when he committed the crimes, became a State's witness.

         The evidence at Calhoun's trial established that Calhoun, Thompson, Little, and M.D. broke into the house of Javier and his common-law wife, S.E.C., in the early morning hours of May 16, 2009; Javier and S.E.C.'s three young children were also at home during the break-in. Javier had opened the front door to his house because he heard loud knocking. When he opened the door, there was a man with a gun. During the terror that ensued that morning, the following happened.

         One of the men, who was carrying a loaded gun, forced both Javier and S.E.C. to get on the floor on their knees and demanded that they give him their money. When Javier and S.E.C. told them that they had no money, the man then picked up Javier and S.E.C.'s nine-month-old son, threatening to kill their baby while pointing the gun at his head. At different points, the men repeatedly kicked Javier and stomped on his head. And, by the time the men had fled Javier and S.E.C.'s house, Javier had been shot multiple times, including in the left knee, the right knee, and twice in the chest. The men also sexually assaulted S.E.C. S.E.C. testified that she was vaginally raped once, anally sodomized once, and forced to perform oral sex three times. In addition, S.E.C. was physically beaten. At one point, the man with the gun forced the gun down S.E.C.'s throat, threatening to kill S.E.C. if she did not comply with his commands. In the end, the men left Javier and S.E.C.'s house after gathering what valuables they could find.

         S.E.C. admitted it was difficult to identify the men. The men were wearing bandanas or shirts over their faces. Yet, S.E.C. consistently asserted that three of the men sexually assaulted her while the other man with the gun did not. S.E.C. identified Calhoun as one of the men that sexually assaulted her, although she also explained to a detective that she was not "a hundred percent" certain who did what to her because she was not looking at them.

         She also believed that the man who shot Javier was "in charge" since he was "giving orders to the other three people." S.E.C. testified that she heard one of the men yell "stop shooting" when she was being led from the garage to the bathroom, which was right before she saw the gunman shoot Javier three times. Javier alleged that the man with the gun stayed with him the entire time. He further alleged that this man was the man who threatened his infant son and the only man who shot him. He did, however, allege that Calhoun "stomped" on him after he started "fighting back" against the gunman.

         Calhoun, who testified on his own behalf, admitted that he was at Javier and S.E.C.'s house with Thompson, Little, and M.D. Calhoun testified that he and the other men planned to rob Javier at his house because Javier sold marijuana from his garage. It is an undisputed fact that Javier had previously sold marijuana from out of his garage and had previously sold marijuana to Calhoun. Calhoun explained that when Thompson asked where he could buy some marijuana, he directed Thompson to Javier's house. Furthermore, on the way to Javier's house, they decided to rob Javier. Calhoun admitted that he participated in the robbery, entered into Javier and S.E.C.'s house, and collected any valuable items he could find.

         Still, Calhoun denied committing any of the violent crimes against Javier, S.E.C., or the baby. He even asserted that he tried to prevent the other men from committing the violent crimes against Javier, S.E.C., and the baby. Calhoun asserted that Little was the only person with a gun and the only person who shot Javier. He alleged that at one point, when he came into the kitchen to find that Little had shot Javier, he tried to "physically stop [Little] from shootin[g]" and told Little "don't shoot [Javier] . . . he's already bleedin[g]."

         M.D. testified that Calhoun was an active participant in the sexual assaults of S.E.C. He alleged that Calhoun told him to rape her, tied her hands up with a vacuum cord, and removed her clothing. M.D. testified that Calhoun punched Javier in the head when Javier somehow gained access to Little's gun. Nevertheless, M.D. testified that Little was the only one who shot Javier.

         After his trial, Calhoun obtained new counsel. Calhoun then moved for a new trial, alleging that his jury engaged in misconduct and entered a compromised verdict on the aggravated criminal sodomy conviction. Calhoun's arguments were based on statements by a juror, B.R., who wrote a letter to the judge after his trial suggesting remorse for convicting him of aggravated criminal sodomy.

         B.R. stated that during deliberations about half of the jury felt he was guilty of all the sex crimes and about half of the jury felt he was guilty of none of the sex crimes. She stated that the jury decided to acquit Calhoun of the rape and all but one of the aggravated criminal sodomies, despite understanding the aiding and abetting instruction requiring the jury to find him "guilty of all the crimes anyway simply because he was there," because (1) the jury did not want a hung verdict and (2) one juror had a planned trip the upcoming week. She explained that she finally agreed to find Calhoun guilty of a single count of aggravated criminal sodomy after "thinking of the law which [said] that [Calhoun was] guilty of all [the] crimes anyway simply because he was there." Eventually, another juror, D.M., came forward with a similar account of the jury deliberations. D.M. explained she ultimately agreed to find Calhoun guilty of the single aggravated criminal sodomy because her "take on the law [was] that, if you are [a willful] participant in the unlawful venture, whether you are the look-out or you're the guy who pulled the trigger; you're just as guilty of the [attempted] murder . . . that's it.

         The trial court rejected Calhoun's new trial argument. The trial court compared Calhoun's case to State v. Kaiser, 260 Kan. 235, 249-52, 918 P.2d 629 (1996), disapproved on other grounds by State v. Gonzalez, 282 Kan. 73, 145 P.3d 18 (2006), and relied on K.S.A. 60-441, which prohibits courts from considering the jury's mental process when reviewing the validity of a verdict. The trial court then sentenced Calhoun to a controlling prison term of 330 months followed by lifetime postrelease supervision. The trial court ran Calhoun's aggravated kidnapping and aggravated criminal sodomy sentences concurrent, but ran his remaining sentences consecutive. Calhoun appealed his convictions and sentences to this court.

         Calhoun's Direct Appeal

         On direct appeal, Calhoun made the following arguments: (1) that the trial court lacked subject matter jurisdiction because the State failed to charge him with aiding and abetting as a separate crime in the complaint; (2) that the aiding and abetting instruction created alternative means for committing crimes, meaning insufficient evidence supported all but his aggravated burglary convictions because he was not a principal actor in the commission of the other crimes; (3) that the trial court provided the jury with an erroneous definition of "sodomy" that created alternative means for the commission of the crime of aggravated criminal sodomy; (4) that the judge committed misconduct by calling S.E.C. a victim while explaining the jury instructions; (5) that the prosecutor committed misconduct during closing arguments by misstating the law; and (6) that cumulative error otherwise required the reversal of his convictions.

         This court rejected each of Calhoun's arguments on the merits. State v. Calhoun, No. 107, 116, 2013 WL 2991066 (Kan. App. 2013) (Calhoun I), rev. denied 299 Kan. 1271 (2014). After our Supreme Court denied Calhoun's petition for review, the mandate was issued on May 30, 2014.

         Calhoun's K.S.A. 60-1507 Motion

         On May 29, 2015, Calhoun filed a pro se K.S.A. 60-1507 motion with the trial court. In this motion, Calhoun argued that he was entitled to relief because of numerous trial errors, including: (1) that the trial court failed to properly instruct the jury on aiding and abetting; (2) that the trial court failed to properly instruct the jury on the role of hearsay evidence; (3) that the amended complaint charged him with simple kidnapping as opposed to aggravated kidnapping; (4) that his conviction for the crime of attempted voluntary manslaughter under a theory of aiding or abetting was a legal impossibility; (5) that his conviction for aggravated criminal sodomy was multiplicitous; (6) that his conviction for aggravated criminal sodomy was supported by insufficient evidence; (7) that his conviction for aggravated kidnapping was supported by insufficient evidence; (8) that his conviction for aggravated burglary was supported by insufficient evidence; and (9) that the prosecutor committed error several times.

         Calhoun's primary complaint concerned the trial court's failure to instruct the jury that he must have had the same specific intent to commit the crime as the principal to be convicted of his specific intent crimes under a theory of aiding and abetting. Calhoun alleged our Supreme Court's decision in Overstreet directed this. Additionally, Calhoun asserted that both his trial counsel and appellate counsel were ineffective for failing to raise the preceding trial errors. Calhoun also asserted that his trial counsel was ineffective for failing to "stipulate to the uncontested facts (i.e. rape, sodomies, shooting, etc.)," locate witnesses to discuss Javier's drug business, and sequester certain State witnesses. Calhoun concluded by stating that "there [were] several other instances of ineffective assistance of counsel that [would] have to be added to this issue at the hearing on the motion."

         On October 7, 2015, the trial court appointed counsel to represent Calhoun on his K.S.A. 60-1507 motion. On February 5, 2016, Calhoun's counsel filed a pretrial questionnaire in which he merely incorporated Calhoun's pro se arguments by reference. Calhoun's counsel never filed a motion expounding on or clarifying Calhoun's arguments, which he made in his pro se K.S.A. 60-1507 motion.

         On May 13, 2016, the State responded that the trial court should deny Calhoun's motion without holding an evidentiary hearing because the motion, files, and records of Calhoun's case definitively established that he was not entitled to relief. The State argued that to the extent that Calhoun was arguing about trial errors, he was barred from making such arguments in the context of his K.S.A. 60-1507 motion. As for his ineffective assistance of counsel arguments, the State provided an indepth analysis why each of Calhoun's arguments were legally incorrect, factually incorrect, or otherwise controlled by this court's decision in Calhoun I.

         After the State's response, Calhoun moved to amend his K.S.A. 60-1507 motion "to add the claim that [a]ppellate [c]ounsel was ineffective for failing to raise the issue of juror misconduct and a 'compromise[d] verdict' in [his] direct appeal." Calhoun noted that in his original and timely K.S.A. 60-1507 motion he had stated that "'there [were] several other instances of ineffective assistance of counsel that [would] have to be added to this issue at the hearing on the motion.'" Calhoun asserted that his latest argument either "relate[d] back to the catch-all ineffective assistance argument" in Calhoun's K.S.A. 60-1507 motion or that the court should allow the amendment "to prevent manifest injustice."

         The trial court held a preliminary hearing on Calhoun's motions, where Calhoun appeared through counsel, but not in person. In addition to repeating Calhoun's earlier arguments, counsel also asserted that the court should allow Calhoun to raise some of his trial error arguments based on exceptional circumstances. The State stood on its written motion in response to Calhoun's original K.S.A. 60-1507 motion, while also arguing that Calhoun had failed to establish he had a ...


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