262 Kan. 312
(940 P2d 42)
No. 72,257
STATE OF KANSAS, Appellee, v. ABRAHAM ORR, Appellant.
SYLLABUS BY THE COURT
1. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial.
2. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
3. With regard to the required showing of prejudice to the defendant in a claim of ineffective assistance of counsel, the proper standard requires the defendant to show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
4. Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry remain mixed questions of law and fact on appeal. Where the trial court has made findings of fact and conclusions of law, an appellate court determines whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have substantial support in the evidence.
5. An appellate court does not reweigh the testimony or pass on the credibility of witnesses but accepts as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court and disregards any conflicting evidence or other inferences that might be drawn therefrom.
6. Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffective assistance of counsel case, a particular decision not to investigate must be directly assessed for reasonableness under all the circumstances, applying a heavy measure of deference to counsel's judgments.
7. While the issue of whether a defendant's statement was voluntary is dependent upon the mental capacity of the defendant, the ultimate determination is based upon the totality of the circumstances, including (1) the manner and duration of the questioning; (2) the suspect's ability upon request to communicate with the outside world; (3) the suspect's intellect, age, and background; and (4) the fairness of the interrogating officers.
8. A confession is not inadmissible merely because the person making it is a juvenile. The age of the juvenile, the length of the questioning, the juvenile's education, the juvenile's prior experience with the police, and the juvenile's mental state are all factors to be considered in determining the voluntariness and admissibility of a juvenile's confession into evidence.
9. The question whether a statement made by a juvenile during custodial interrogation is voluntary is governed by our decision in State v. Young, 220 Kan. 541 522 P.2d 905 (1976). The holding in Young is stated and applied.
10. Where the sufficiency of evidence in a criminal case is challenged on appeal, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Appeal from Douglas district court, JAMES W. PADDOCK and JACK A. MURPHY, judges. Opinion filed May 30, 1997. Affirmed.
Jessica R. Kunen, chief appellate defender, argued the cause, and Rebecca E. Woodman, assistant appellate defender, was with her on the briefs for appellant.
John F. Wilcox, Jr., assistant district attorney, argued the cause, and Debra Westhoff, student intern, Christine K. Tonkovich, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Abraham Orr appeals from his convictions of first-degree murder, K.S.A. 21-3401, and attempted aggravated robbery, K.S.A. 21-3427 and K.S.A. 21-3301. He claims ineffective assistance of counsel in violation of his Sixth Amendment right under the United States Constitution. He also challenges the admission of his confession and contends that the evidence fails to support the jury's determination that he was legally sane at the time of the crime.
On September 18, 1993, the defendant and three friends, James Wadley, Courtney Crockett, and Adrian Perkins, traveled in Wadley's car to Kansas City from their home in Topeka. The defendant was 1 month shy of his 18th birthday. On the return trip, Wadley's car broke down on the Kansas turnpike near one of the Lawrence toll exits. The four left the car on foot to look for a telephone.
The defendant and Wadley entered a convenience store near the turnpike to make the telephone call. Once inside, they decided to steal an unguarded purse, hoping to find car keys. The keys in the purse did not fit the car in the parking lot outside the store, so the youths walked on. The four encountered an Izuzu Trooper parked with its motor running at the gate of a park not too far from the convenience store. Initially, they passed the vehicle but soon returned to steal it.
The occupants of the vehicle included, Edward Lees, Dana Chang and Dana's 21/2-year-old son and her 15-month-old daughter. The defendant and Crockett approached the vehicle, while Perkins and Wadley hung back. The defendant carried his own handgun, while Crockett carried Wadley's 9 mm. pistol. They motioned to Lees to get out of the vehicle. Lees shook his head no and then faced forward.
This action frustrated the defendant. He took out his gun and tapped on the vehicle window. When Lees refused to move, the defendant shot a warning shot at the ground. Again, Lees did not move but shifted into reverse and slowly moved backward. The defendant, in anger, raised his gun and shot through the window.
Chang witnessed each of these events and testified that the bullet went through Lees' head. The vehicle rolled back into a ditch. She grabbed her son and ran for help. Chang flagged down a car whose driver agreed to watch her son as she returned for her daughter. Another driver whom Chang alerted went to the toll booth to report the incident to the police. While he was in the process of calling, he witnessed four youths running from the woods to the toll booth. He reported the youths as possible suspects. Lees bled to death at the scene from a bullet wound to his neck.
Police arrived at the east Lawrence toll booth and arrested the four young men. They were all taken to the Douglas County Law Enforcement Center. During separate interrogations, each suspect confessed to their involvement in the shooting. The defendant was the last to confess, only agreeing to talk after he saw the other three youths. The defendant was charged with felony murder and attempted aggravated robbery. A motion to suppress his confession was denied prior to trial. Based upon his juvenile record, the defendant was tried as an adult.
At trial, Chang identified the defendant as the shooter. The defendant's confession was admitted through the interrogating officer. The defendant raised the defenses of insanity and diminished capacity. He testified on his own behalf regarding his state of mind during the incident. He explained that he thought he was doing the right thing to get his friends a car to get home. He also testified that his brother had died a month before the shooting, causing him severe depression.
A teacher of the defendant's and a school social worker testified to the change in personality they had witnessed in the defendant since the date of his brother's death. In addition, his mother testified that her sons had been very close and the death had severely affected the defendant.
As a rebuttal witness, the State called the court-appointed psychiatrist, Dr. Sheldon Vile, of the Bert Nash Mental Health Center. Dr. Vile testified that he examined the defendant a few months after the crime and determined that while the defendant exhibited some signs of depression, he believed the defendant to be legally sane on the date of the crime. The defendant's appeal was timely filed; his counsel requested that the case be remanded for a determination of the defendant's contention that he had not been adequately represented during the trial of his case.
In State v. Van Cleave, 239 Kan. 117, Syl. ¶ 1, 716 P.2d 580 (1986), we held that a claim of ineffective assistance of counsel will not be considered for the first time on appeal. We outlined in Van Cleave a remand procedure for hearing a claim of ineffective assistance of counsel before the trial court. The rationale for this procedure was clearly stated in Van Cleave:
"The principal problem facing an appellate court when a claim of ineffective assistance of counsel is raised for the first time on appeal is that the trial court, which observed counsel's performance and was aware of the trial strategy involved, is in a much better position to consider counsel's competence than an appellate court is in reviewing the issue for the first time from a cold record. Many times what would appear in the record as an indication of ineffective counsel was fully justified under the circumstances present in the trial court. The trial judge should be the first to make a determination of such an issue and our refusal to consider the matter for the first time on appeal is sound." 239 Kan. at 119.
In this case, pursuant to counsel's request, we used the procedure for remand outlined in Van Cleave; we retained jurisdiction over the defendant's appeal, but remanded for a full consideration of his ineffective assistance of counsel claim. The trial judge presiding over the defendant's trial had retired and was not available to hear the claim of ineffective assistance upon remand. District Court Judge Jack A. Murphy of the same judicial district heard the case upon remand. Three separate hearings were held. The hearings were extensive. Judge Murphy recognized that the case would normally be heard by the judge who tried the criminal case. As a result, "the Court [upon remand] granted the Defendant and the State greater leeway and time than might usually be necessary to present evidence and arguments."
The parties were given additional time to submit memoranda of law, which each party submitted to the court. Numerous witnesses, including the defendant and his trial counsel, testified. The trial court considered all evidence presented and the authority submitted by the parties and addressed the four issues raised by the defendant. In a 16-page memorandum decision, the court concluded that "this was a difficult case to defend. Trial counsel provided reasonably effective assistance in the case, considering all of the circumstances and the evidence from his perspective at the time of defending Mr. Orr."
EFFECTIVENESS OF COUNSEL UNDER THE SIXTH AMENDMENT
Standard of review
Recently we set forth the standard of review we apply in cases where it is alleged that the defendant has been denied the effective assistance of counsel under the Sixth Amendment. In State v. Rice, 261 Kan. 567, 598-603, 932 P.2d 981 (1997), we said:
"The two landmark cases on the issue of ineffective assistance of counsel are those considered and utilized by the trial court, Strickland [v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984),] and Chamberlain [v. State, 236 Kan. 650, 694 P.2d 468 (1985)].
"Justice O'Connor, in writing for a 7 to 2 majority in Strickland, stated that before counsel's assistance is determined to be so defective as to require reversal, two components or prongs must be shown:
'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial . . . .' 466 U.S. at 687.
"Further, the Strickland majority opinion states:
'[T]he purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
'Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 343 (1983).
'The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.
'Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.' 466 U.S. at 689-90.
"Strickland was a federal habeas challenge to a state criminal court determination. In viewing the Court's scope of review, Justice O'Connor concluded:
'Finally, in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. § 2254(d). Ineffectiveness is not a question of "basic, primary, or historical fac[t]." Townsend v. Sain, 372 U.S. 293, 309, n.6 (1963). Rather, like the question whether multiple representation in a particular case gave rise to a conflict of interest, it is a mixed question of law and fact. See Cuyler v. Sullivan, 446 U.S., at 342. Although state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d), and although district court findings are subject to the clearly erroneous standard of Federal Rule of Civil Procedure 52(a), both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.' 466 U.S. at 698.
"Although the clear direction of Strickland that 'both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact' did not find its way into Chamberlain, our seminal Kansas case on this issue, the heart and purpose of the Strickland ruling did, and it has been uniformly applied to every Kansas ineffective assistance of counsel case since it was filed in 1985.
"In writing for the Kansas Supreme Court in Chamberlain, Justice Holmes set forth the existing Kansas standards of Schoonover v. State, 2 Kan. App. 2d 481, Syl. ¶¶ 2, 3, 4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978), and the claim of 'actual ineffectiveness' of Strickland. Justice Holmes then stated:
'Comparing Strickland v. Washington with the Schoonover v. State standards of ineffective assistance of counsel reveals little conflict between the two. Where Schoonover required proof of counsel's conduct substantially deviating from that expected of a reasonably competent lawyer in the community, Washington requires proof the conduct was not reasonable considering all the circumstances, with defendant required to overcome a strong presumption of reasonableness. Schoonover also required proof counsel's conduct caused the client's conviction or otherwise worked to the client's "substantial disadvantage." Washington now requires a defendant establish a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. While the actual application of the standards from Schoonover as opposed to those of Washington would in all probability effect the same result in any given case, we deem it appropriate to now adopt the Washington holdings as the prevailing yardstick to be used in measuring the effectiveness of counsel under the Sixth Amendment. They may be stated as:
First. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
Second: A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
In adopting the Washington two-pronged standard or test we do not abandon the standards which have been carefully developed in Schoonover and its progeny. While the Supreme Court in Washington refrained from adopting any "mechanical rules" to be utilized in considering a claim of ineffective assistance of counsel we are of the opinion that our standards enunciated in Schoonover and built upon in subsequent cases remain viable guidelines in the application of the Washington standard.' Chamberlain, 236 Kan. at 656-57.
"In addition, Chamberlain requires the trial court to assess the performance of counsel before an appellate court considers the matter and stated: 'Much deference and reliance must be placed upon the wisdom and determination of the trial judge who saw all of the proceedings first hand as they happened.' 236 Kan. at 659-60.
"It is apparent from an examination of our appellate decisions on ineffective assistance of counsel issues that Kansas courts have uniformly followed the mandates of Schoonover, Strickland, and Chamberlain in applying the two-pronged test of Strickland, making the independent evaluation of each situation by the totality of the representation as directed in Schoonover, requiring the assessment of the performance of counsel by the trial court before it will be considered by the appellate court, and then allowing 'deference and reliance . . . upon the wisdom and determination of the trial judge who saw all the proceedings firsthand as they happened' as directed by Chamberlain. Although we may not have uniformly stated in our appellate opinions that we have given a de novo review to the mixed questions of fact and law which exist, it is apparent that we have done so.
"We hold that once a proper determination of the issue of ineffective assistance of counsel has been made by the trial court, see State v. Miller, 259 Kan. 478, 486-87, 912 P.2d 722 (1996); State v. Hall, 246 Kan. 728, 753, 793 P.2d 737 (1990); and State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986), we review the issue on appeal de novo as directed by Strickland as mixed questions of fact and law under the totality of the facts and circumstances. Our isolated statement in Taylor, 251 Kan. at 285, that the appropriate scope of review is abuse of discretion, is disapproved.
"Such a holding is consistent with the myriad of cases from the 10th Circuit Court of Appeals which have uniformly so held. See, e.g., Nickel v. Hannigan, 97 F.3d 403, 408 (10th Cir. 1996) ('This court reviews de novo the district court's ineffective assistance of counsel analysis, which involves mixed questions of law and of fact.'); Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995) ('The performance and prejudice components of the Strickland analysis present mixed questions of law and fact which we review de novo.'); Brecheen v. Reynolds, 41 F.3d 1343, 1365-66 (10th Cir. 1994) ('"[T]he performance and prejudice prongs under Strickland involve mixed questions of law and fact which we review de novo."') (quoting United States v. Owens, 882 F.2d 1493, 1501-02 n.16 [10th Cir. 1989], which cited Strickland, 466 U.S. at 698)."
Our review in the case is then de novo on mixed questions of law and fact. However, we do not ignore the findings of the trial court. In this case, as in most cases where the procedure outlined in Van Cleave is employed, the trial court decides the same question we are called upon to review. In this case, the trial court granted both parties considerable latitude in developing the evidence regarding the issue of ineffective assistance of counsel. The factual determinations made by the trial court under these circumstances are, if supported by substantial competent evidence, entitled to great weight before this court. "Much deference and reliance must be placed upon the wisdom and determination of the trial judge who saw all of the proceedings first hand as they happened." Chamberlain v. State, 236 Kan. 650, 659-60, 694 P.2d 468 (1985).
We recognize that the findings of the district court are not binding upon this court when reviewing the question of ineffective assistance of counsel in a criminal trial. In both state and federal proceedings, this is true. However, as Justice O'Connor points out in Strickland, deference is accorded to the trial court's findings of fact in the federal system. State court findings of fact, made in the course of deciding an ineffectiveness claim, are subject to the deference requirement of 28 U.S.C. § 2254(d) (1995). The written finding, written opinion, or other reliable and adequate written indicia of the state court "shall be presumed to be correct," unless the applicant establishes certain facts, most of which deal with a denial of due process at the state court proceeding. 28 U.S.C. § 2254(d).
At the same time, when a federal appellate court deals with findings of a federal district court, again involving a question of ineffective assistance of counsel on appeal, Federal Rule of Civil Procedure 52(a) provides that the "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." (Emphasis added.)
Not unlike the federal system, in Kansas, where the trial court has made findings of fact and conclusions of law, we are in a position to determine whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have any substantial support in the evidence. Taylor v. State, 252 Kan. 98, Syl. ¶ 2, 843 P.2d 682 (1992). We do not reweigh the testimony or pass on the credibility of witnesses. McKissick v. Frye, 255 Kan. 566, Syl. ¶ 8, 876 P.2d 1371 (1994); Taylor , 252 Kan. at 104. In our review, we accept as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court and disregard any conflicting evidence or other inferences that might be drawn therefrom. State v. Rowell, 256 Kan. 200, 213, 883 P.2d 1184 (1994); State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993); State v. McKeown, 249 Kan. 506, 515, 819 P.2d 644 (1991). At the same time, both the performance and prejudice components of the ineffectiveness inquiry remain mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
With the above standard clearly in mind, we review and determine the issue regarding the defendant's contention that his counsel was ineffective. The defendant sets forth eight specific allegations of ineffective assistance of counsel. We examine each allegation.
1. Allegations that counsel failed to thoroughly investigate and present the defenses of insanity and diminished capacity.
The defendant argues that his trial counsel's failure to fully investigate his defenses was unreasonable conduct and that this conduct prejudiced the outcome of the trial. The defendant relies primarily on cases from other jurisdictions to support his argument. While these cases present some factual similarity to the defendant's case, the cases relied on by the defendant also vary substantially from the facts in this case. The question posed is fact-driven. All cases cited by the defendant depend upon the available facts and application of the two-pronged test set forth in Strickland or a comparable legal rule. Each case is decided on its own unique facts. We, therefore, proceed to the facts of the present case.
It is undisputed that trial counsel investigated the defenses of insanity and diminished capacity. The issue before this court is whether the extent of the investigation meets a minimum standard of reasonableness. If not, this court must determine whether a lack of thorough investigation prejudiced the outcome of the trial.
At the several remand hearings, trial counsel's investigation of the defendant's psychological background was thoroughly explored. Trial counsel filed a notice of insanity with the trial court after determining that insanity was the strongest defense available to the defendant. Soon after, trial counsel filed an amended notice of insanity, which included the defense of diminished capacity. The court ordered a psychiatric evaluation. Dr. Eugene Vile of the Bert Nash Mental Health Center evaluated the defendant and reported that in his opinion the defendant had been legally sane at the time of the crime.
After receiving Dr. Vile's evaluation, trial counsel requested an ex parte order from the district court for funds to hire a defense expert on the issue of insanity. After consulting with Ron Wurtz, the Shawnee County Public Defender who recommended Dr. Stephen Peters