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State v. Moyer

Supreme Court of Kansas

February 15, 2019

State of Kansas, Appellee,
Steve Kelly Moyer, Appellant.


         1. The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused shall enjoy the right to have the effective assistance of counsel for his or her defense.

         2. The purpose of requiring that the constitutionally mandated assistance of counsel be effective assistance is simply to ensure that criminal defendants receive a fair trial. To fulfill the effective assistance function, counsel owes the client a duty of loyalty and a duty to avoid conflicts of interest.

         3. The Sixth Amendment right to counsel is made applicable to state proceedings by the Fourteenth Amendment to the United States Constitution.

          4. When a defendant claims a Sixth Amendment right to counsel violation based on his or her attorney's concurrent representation of another, the analysis starts with a determination of whether the defendant has established that his or her attorney had an active conflict of interest.

         5. Under the concurrent representation circumstance presented in this case, the defendant had the additional burden of demonstrating that his attorney's active conflict of interest actually affected the adequacy of the attorney's representation.

         6. When a criminal defendant claims a Sixth Amendment right to counsel violation based on his or her attorney's deficient performance, the defendant must satisfy a two-part test by proving: (1) counsel's performance was deficient, which means counsel made errors so serious that counsel's performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsel's errors were so serious they deprived defendant of a fair trial. In other words, the defendant must show there is a reasonable probability the result would have been different but for counsel's errors.

         7. Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. But no prejudicial error may be found upon the cumulative effect rule if the evidence is overwhelming against the defendant.

          Appeal from Sherman District Court; Scott Showalter and Glenn R. Braun, judges.

          Robert A. Anderson, Sr., of Law Office of Donald E. Anderson II, LLC, of Ellinwood, was on the briefs for appellant.

          Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the briefs for appellee.

          PER CURIAM

         Steve Kelly Moyer's direct appeal returns to this court after a remand to the district court for a State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), hearing to determine whether Moyer was denied his Sixth Amendment right to counsel, either because his trial counsel was not constitutionally conflict-free or was not constitutionally competent. State v. Moyer, 302 Kan. 892, 895, 935, 360 P.3d 384 (2015), as modified in 306 Kan. 342, 410 P.3d 71 (2017). When this court remanded the case for a determination of whether Moyer was provided effective assistance of counsel, it also reserved the question of cumulative error. We now determine that Moyer's convictions can be affirmed.

         Factual and Procedural Overview

         A detailed description of the sodomy and sexual intercourse underlying Moyer's five sex crime convictions is set forth in the opinions cited above. The victim was J.M., Moyer's oldest daughter, who testified to a pattern of sexual abuse that started when she was 11 years old and continued into her 14th year. In addition to that testimony, J.M. provided several items of corroborating physical evidence, including used condoms from sexual encounters with Moyer, an audio recording J.M. secretly made of one sexual encounter, a rag that J.M. had used to clean herself after sex acts with Moyer, and a notebook containing an agreement between J.M. and Moyer enumerating a points system Moyer designed by which J.M. could ostensibly complete the sexual relationship with Moyer by performing sex with him according to certain rules.

         During the trial, a problem arose getting an exculpatory witness to testify for the defense. While Moyer's attorney, Jeffery Mason, was serving as guardian ad litem for J.T. in a child in need of care (CINC) case, he learned that J.T. knew J.M. and her sister, H.M.; that J.T. was aware of J.M.'s sexual abuse allegations against Moyer; that J.M. and H.M. had told J.T. that the allegations against Moyer were false; and that J.T. was willing to testify in Moyer's criminal case. In our earlier opinion, we described the problems as follows:

"Close to the trial date, Mason attempted to locate J.T. to subpoena her to testify, and he learned she was at the St. Catherine's Hospital psychiatric ward in Garden City. Mason discussed with Moyer the dangers of calling a witness suffering from mental problems, but Moyer said he still wanted J.T. to testify. After Mason contacted J.T. to assess her ability to testify and to determine the substance of her testimony, he subpoenaed her. But Mason was informed that J.T.'s doctor would not approve J.T. coming to Goodland to testify because she needed to go immediately to a residential psychiatric treatment facility.
"Mason acknowledged the potential conflict of interest created because of his roles as J.T.'s guardian ad litem and Moyer's defense attorney, and he admitted to the court that he had not obtained a written waiver of conflict from either Moyer or J.T. But he nevertheless asserted: 'I don't believe that there's a conflict under the circumstances.' That assertion was followed by a discussion of submitting the testimony of an unavailable witness, in which Mason asserted that there would be 'an absolute conflict of interest if the question would be whether I would be presenting-presenting that evidence to the Court or to the jury. I can't do that because I'm Mr. Moyer's attorney, but the information that came to me came only to me.'
"The State responded by pointing out that Mason had failed to advise the court about this potential conflict of interest at any of the earlier court hearings. Further, the State argued that the potential conflict of interest was a secondary consequence of the defense counsel's failure to properly subpoena J.T." 306 Kan. at 381.

         At that point, the trial court noted that J.T.'s subpoena was issued just that morning. The trial court gave Mason until the end of Moyer's trial testimony to determine whether J.T. was available to travel and competent and capable of testifying. The trial court held that if Mason could not show J.T.'s availability, the trial would continue without her, specifically declaring: "'Defense [counsel] has had an ample opportunity to prepare their case, that there has not been a subpoena issued prior to today's date, and that we're going to go forward and this case will be concluded and taken to the jury.'" 306 Kan. at 382.

         After Moyer testified, the parties had another in-chambers conference regarding J.T.'s availability. This court's prior opinion stated the following facts:

"Mason explained that his law partner had spoken with a screening therapist at St. Catherine's who explained that a doctor informed the screening team that J.T. 'would be extremely unreliable in any testimony and would lack any credibility whatsoever.' The screening therapist could not tell the law partner whether J.T. was competent to testify. The therapist relayed that J.T. was being sent to a psychiatric residential treatment facility where she would not be free to leave and that they did not recommend that she be forced to testify.
"The court noted: 'It would appear then that the possibility of [J.T.] being capable of testifying is extraordinarily small, and even if she were, there's a question as to any value that her testimony would be given.' Mason told the court, 'That is exactly my assessment of it, Your Honor,' and asked for additional time to speak with his client about the matter.
"The court granted this request and after the conference, the following information was placed on the record:
'MR. MASON: . . . Although my client believes that the evidence that [J.T.] would testify to, as he understands it, would be beneficial to him based on what I've already put on the record, we have also expressed- discussed the fact that the information that we have from two different individuals involved in the screening processes, that her testimony today would be extremely unreliable and lack any credibility and that the State would have the opportunity to bring that to the jury's attention; and therefore, it would not be appropriate to use [J.T.'s] testimony today.'
"The court then had Moyer confirm that he understood what Mason had said and that he agreed with the decision to proceed. Moyer also told the court that he was satisfied with Mason's representation to that point. But the district court made no explicit finding with respect to whether a conflict of interest existed. Rather, . . . the judge said that he understood Mason's action, that Mason's past behavior had always been ethical, and that 'if there is a problem, then those problems will be dealt with by others.'" 306 Kan. at 382-83.

         This court held that although the trial court inquired into the facts underlying the conflict of interest, it failed to make the determinations necessary for this court to assess what impact the conflict had on Mason's performance. For example, this court did not know whether Mason was still serving as J.T.'s guardian ad litem at the time of Moyer's trial. Further, this court had no findings from the district court as to Mason's failure to properly issue and serve a subpoena on J.T. forcing her appearance or regarding whether Mason should have preserved J.T.'s testimony in some manner. Therefore, this court remanded for a Van Cleave hearing to determine whether Moyer was denied his Sixth Amendment right to counsel. 306 Kan. at 383-85.

         On remand, 15th Judicial District Chief Judge Glenn Schiffner granted Moyer's motion to disqualify or recuse Judge Scott Showalter, Moyer's trial judge, from presiding over the Van Cleave hearing. Chief Judge Schiffner assigned Chief Judge Glenn R. Braun of the 23rd Judicial District to preside over the hearing. Actions taken with Judge Braun presiding will hereinafter be referred to as actions taken by the Van Cleave court, in order to distinguish these proceedings from actions taken by Judge Showalter during Moyer's jury trial.

         The State filed a motion to clarify the scope of remand based upon Moyer's letters to district judges and counsel indicating his intent to inquire into matters the State argued were not subject to remand, including Mason's qualifications for appointment as Moyer's counsel and the trial court's denial of Moyer's pretrial motions for new counsel. According to the State, the following issues were subject to remand: (1) Was Mason still J.T.'s guardian ad litem at the time of Moyer's trial? and (2) if so, (a) was Mason's advice adversely impacted by his status as J.T.'s guardian ad litem? and (b) was Mason ineffective for failing to obtain J.T.'s presence at trial or otherwise preserve her testimony?

         Notably, the State stipulated that the answer to the first question is "yes," Mason was J.T.'s guardian ad litem at the time of Moyer's trial.

         Moyer's written response to the State's motion argued the remand was limited to the three issues discussed in this court's opinion, including whether the trial court denied him due process by failing to conduct a meaningful hearing on his pro se pretrial motions for new counsel. Moyer argued the following were relevant to Mason's conflict of interest and ineffectiveness: Mason's qualifications; Mason falsely reporting to the Board of Indigents' Defense Services (BIDS) a visit with Moyer in jail that did not take place; Mason's failure to withdraw as both Moyer's counsel and J.T.'s guardian ad litem when he first learned J.T. was a potential exculpatory witness; Mason's financial interest in continuing both cases; the failure to properly and timely subpoena J.T.; the failure to preserve J.T.'s testimony; and the failure to request a continuance in order to obtain J.T.'s testimony or make inquiries as to her mental health status.

         The Van Cleave court ruled that the remand proceeding would cover two issues: (1) Did the conflict deprive Moyer of his Sixth Amendment right to effective assistance of counsel? and (2) if not, was Mason's performance so deficient that he denied Moyer his right to a fair trial? The Van Cleave court noted that much of what Moyer wanted to present might be relevant to cumulative error but might not be within the scope of this court's remand. In an effort to stay within the scope of the remand while still allowing Moyer to create a record for this court to consider for cumulative error purposes, the Van Cleave court permitted Moyer to proffer evidence related to Mason's qualifications.

         Moyer's counsel stated he did not read this court's decision for the "remand and the Van Cleave hearing to be a full blown Van Cleave"; instead, "[i]t's clear that Mr. Moyer, . . . will still have the availability of relief under [K.S.A. 60-]1501 and [K.S.A. 60-]1507 at some time in the future, if that's necessary." Therefore, Moyer assured the Van Cleave court he would limit the issues at the Van Cleave hearing to those raised in his response to the State's motion to clarify. But the Van Cleave court allowed Moyer to preserve for appeal his proffer that Mason was not qualified under K.A.R. 105-3-2 to be court appointed on an off-grid felony, which deprived Moyer of his Sixth Amendment right to effective counsel.

         Mason and Moyer were the only witnesses who testified at the Van Cleave hearing. The Van Cleave court took judicial notice of J.T.'s CINC case and corresponding Kansas Department of Social and Rehabilitation Services (SRS) agency records. J.T.'s records from St. Catherine's Hospital were admitted at a prior hearing, and the Van Cleave court also reviewed those in making its decision. Further, the Van Cleave court took judicial notice of the entire transcript of the jury trial and all trial exhibits.

         The Van Cleave court issued written findings of fact and conclusions of law, which included the following facts:

"1. Jeffery Mason was the GAL for J.T. in the CINC case during the time he represented Moyer.
"2. Mason testified J.T. told him that Moyer's daughter, the victim in the criminal case, told J.T. the allegations against Moyer were false.
"3. Mason conveyed this information to Moyer and it was agreed J.T. would be a witness for Moyer.
"4. One week before trial, Mason knew the location on J.T. but did not issue a subpoena.
"5. Mason testified that it was a strategic decision not to subpoena J.T. in advance of trial to keep the state from discovering or investigating J.T.
"6. During the trial, Mason discovered that J.T. was in the psychiatric ward of St. Catherine's Hospital in Garden City, Kansas.
"7. Mason faxed an unsigned subpoena to the hospital on the night of the third day of the trial.
"8. After the hospital received the fax, conversations occurred regarding J.T. Mason and his law partner were told that J.T. had threatened suicide; was a danger to others; was an extreme flight risk; was on slight medication; was extremely unreliable and lacked credibility; and it would be detrimental to her health to testify.
"9. Mason testified that he recognized a potential conflict when he learned the doctor for J.T. would not make her available to testify because she was not competent.
"10. Mason told Moyer of these developments and let Moyer decide whether to proceed with the trial or request a continuance. Moyer told Mason he wanted to go forward without the testimony of J.T.
"11. During the trial, a recess was held in which Mason, in the presence of Moyer, revealed J.T.'s medical information to the judge and Mason's possible conflict of interest. The judge inquired of Moyer regarding a continuance and Moyer declined to request a continuance and asked for the trial to proceed without the testimony of J.T.
"12. The trial judge never ruled on the issue of the potential conflict.
"13. J.T. was discharged from St. Catherine's hospital on February 4, 2010, the fourth day of the trial. The discharge summary states: 'She was very well controlled on her symptoms . . . No psychotic symptoms were elicited and she was able to engage in conversation without side effects elicited and was willing to talk about her substance abuse and accept counseling for this.'
"14. J.T. did not appear during the hearing on remand from the Supreme Court. It is unknown what her testimony would have been ...

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