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Littlejohn v. State

Supreme Court of Kansas

August 23, 2019

Kedrin D. Littlejohn, Appellant,
v.
State of Kansas, Appellee.

         SYLLABUS BY THE COURT

         An inmate filing a second or successive motion under K.S.A. 60-1507 must show exceptional circumstances to avoid having the motion dismissed as an abuse of remedy.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed June 30, 2017.

          Appeal from Sedgwick District Court; James R. Fleetwood, judge.

          Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Krystle M.S. Dalke, of the same firm, was with him on the brief for appellant.

          Boyd K. Isherwood, chief assistant district attorney, argued the cause, and Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

          OPINION

          JOHNSON, J.

The State petitions this court for review of the Court of Appeals' decision reversing the district court's summary denial of Kedrin D. Littlejohn's K.S.A. 60-1507 motion and remanding the case to the district court for an evidentiary hearing on the issue of whether Littlejohn's trial counsel was ineffective for failing to pursue a defense of mental defect and to request jury instructions regarding the same defense. Littlejohn v. State, No. 115, 904, 2017 WL 2833312 (Kan. App. 2017) (unpublished opinion). The State contends that the panel applied an incorrect standard to determine whether the district court should have considered a second or successive K.S.A. 60-1507 motion. We agree and remand to the Court of Appeals to apply the correct standard.

         Factual and Procedural Overview

         A more complete recitation of the facts underlying Littlejohn's crimes is set forth in our opinion from the direct appeal, State v. Littlejohn, 298 Kan. 632, 316 P.3d 136 (2014). During a May 2008 botched robbery by Littlejohn and Shannon Bogguess, the intended victim was shot, kidnapped, and then run over and killed by a vehicle driven by Bogguess. Littlejohn was arrested; police matched the blood at the scene with blood on Littlejohn's shoes; and Littlejohn eventually confessed to participating in the crimes. 298 Kan. at 634-38. See also State v. Bogguess, 293 Kan. 743, 744-45, 268 P.3d 481 (2012).

         Before trial, Littlejohn's counsel filed a motion to determine competency, as well as a motion to suppress Littlejohn's statements to police on the grounds that Littlejohn's Miranda waiver was involuntary or coerced. Littlejohn had several attorneys during the pretrial district court proceedings, and the record on appeal is not always clear as to which attorney filed which motion. Quentin Pittman represented Littlejohn during the jury trial.

         After a hearing on December 4, 2009, the district court found that Littlejohn could understand the charges and assist in his defense, and, therefore, he was competent to stand trial. The court relied upon a report produced by Comcare (Comcare report). That report, while finding Littlejohn competent to stand trial, noted that "it may be helpful to have IQ testing completed on Mr. Littlejohn."

         The Comcare report referred to a previous IQ test that had been administered by the Wichita Child Guidance Center in 2006, when Littlejohn was 16, and that had revealed Littlejohn to be moderately mentally retarded. That 2006 report is included in the record on appeal as an attachment to Littlejohn's 60-1507 motion. It includes a number of different scores on various types of tests and designates Littlejohn's full scale IQ as 49, which is less than the 0.1 percentile and considered to be in the moderate mental retardation range.

         The 2006 report noted a concern that another report from 1997, when Littlejohn was 7 years old, indicated that Littlejohn's IQ levels were normal at that point, with a full scale IQ of 100. The 2006 report questioned whether this was due to an intervening decline in mental abilities or whether the 1997 testing was flawed. The 1997 report is not in the record on appeal. ...


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