Hudgins v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 119,103

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KASTON L. HUDGINS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Cherokee District Court; ROBERT J. FLEMING, judge. Opinion filed April 26, 2019.
Affirmed.

Jason P. Wiske, of Law Office of Jason P. Wiske L.L.C., of Pittsburg, for appellant.

Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., SCHROEDER, J., and STUTZMAN, S.J.

PER CURIAM: Kaston L. Hudgins appeals from the order of the Cherokee County
District Court denying his motion for relief under K.S.A. 60-1507. Hudgins based his
claim for relief on the contention that his trial counsel was ineffective. We agree with the
conclusions reached by the district court and affirm.

FACTS AND PROCEDURAL BACKGROUND

We need not belabor the tragic facts of this case that arose from an event in July
2009, but a brief summary is necessary to place Hudgins' present contentions in context.
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The succinct account included by our Supreme Court in its opinion on Hudgins' direct
appeal is best suited to that purpose:

"A Cherokee County sheriff's deputy initiated a traffic stop after he saw a vehicle
driven by Hudgins run a stop sign. Hudgins pulled over but sped away while the deputy
was making initial radio contact with dispatchers. The uniformed deputy pursued
Hudgins in a marked patrol car with its top, front, and back emergency lights activated
and an audible siren in operation. The chase began about 9:15 p.m. While evading the
deputy, Hudgins periodically turned his vehicle's headlights off and on, drove in the left-
hand lane toward oncoming traffic, and passed at least one other vehicle on the shoulder.
Vehicle speeds reached 120 miles per hour.
"About 11 miles from where the pursuit began, Hudgins crashed into the rear of
another vehicle at an intersection. His vehicle was estimated to be travelling about 98
miles per hour with the headlights turned off the instant before the collision. The two
occupants in the second vehicle, a mother and her 13-year-old daughter, died. Hudgins
was 22 years old at the time. His blood alcohol level was .15 grams per 100 milliliters of
blood.
"The State charged Hudgins with two counts of first-degree felony murder based
on the underlying felony of fleeing or attempting to elude a law enforcement officer and
one count of fleeing and eluding a law enforcement officer. A jury convicted him of all
three counts. He was sentenced to two concurrent hard-20 sentences for the felony
murders, plus a consecutive 6-month prison sentence for felony fleeing and eluding.
Hudgins timely appeals. Jurisdiction is proper under K.S.A. 2014 Supp. 22-3601(b)(3)
(life sentence)." State v. Hudgins, 301 Kan. 629, 630-31, 346 P.3d 1062 (2015).

In March 2016, Hudgins filed a K.S.A. 60-1507 motion, arguing his trial counsel,
Shane Adamson, was ineffective for failing to: (1) consult or hire an expert to testify how
his blood alcohol level of .15 affected his mental capabilities; (2) preserve a defense
based on a theory that the police officer involved in his high-speed chase violated the
Cherokee County Sheriff's Department high-speed pursuit policy and therefore
contributed to the car accident; (3) raise a defense of voluntary intoxication and also
request a voluntary intoxication instruction; and (4) argue Hudgins lacked the requisite
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mental state for the crime charged. Hudgins also argued Adamson's cumulative errors
rendered him ineffective.

The district court set an evidentiary hearing on Hudgins' 60-1507 claims. Hudgins
was present in person, with his counsel for the motion. The only witnesses at the hearing
were Adamson and the Cherokee County sheriff. Hudgins called the sheriff as a witness
solely to lay the foundation to enter the high-speed pursuit policy into evidence.
Adamson testified that during a discussion in chambers with the court and counsel for the
State, he discussed his intent to introduce the high-speed pursuit policy. To shift blame
from Hudgins, Adamson wanted to present to the jury the idea that "but for the actions of
the deputy, which were against the policy, . . . this whole event would have never
occurred." The district court, however, found the policy was not relevant to elements of
the charged crime, so the policy and any examination related to it was not relevant to
Hudgins' criminal proceeding and was inadmissible.

Adamson also testified about his trial strategy concerning Hudgins' blood alcohol
level at the time of trial. He explained he did not consult with or call an expert to testify
regarding the effect of Hudgins' blood alcohol level because he believed fleeing and
eluding was a general intent crime, so a voluntary intoxication defense was not an option.
Since voluntary intoxication was unavailable, Adamson requested and was granted an
instruction on a lesser included offense of involuntary manslaughter associated with a
DUI. Adamson then argued Hudgins' blood alcohol level in relation to the lesser included
offense.

Hudgins also questioned Adamson about Hudgins' previous competency
treatment. Adamson said he did not consider using a mental defect defense. Again, he
considered fleeing and eluding to be a general intent crime, and he noted the principles of
competency are the ability to understand the charges and the ability to assist in preparing
the defense. Adamson said he had many discussions with Hudgins about trial concepts
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and strategy. He testified Hudgins "was constantly conducting his own legal research and
sending me cases," and Adamson said he and Hudgins "had a lot of discussion" when he
"would meet with him and discuss those issues with him and whether or not in my belief
they were valid or not valid."

In the course of questioning from the State, Adamson read from the transcript of
an in chambers conference at which Adamson, Hudgins, the district judge, and prosecutor
were present. In that conference, Adamson verified with Hudgins, on the record, that he
had discussed with Hudgins the use of a guilt-based defense, meaning one that admitted
guilt, but only of lesser offenses than those charged. Hudgins then acknowledged his
consent to Adamson's use of that defense. Adamson testified that after he reviewed the
case materials and met with his client he was "reasonably convinced" that this defense
was the only approach he could take. He characterized the State's evidence as
"overwhelming." Adamson testified he had discussed this assessment with Hudgins "on
many occasions." From his discussions with Hudgins, Adamson believed Hudgins was
able to assist with his defense.

At the end of the evidentiary hearing, the district court denied Hudgins' K.S.A. 60-
1507 motion. The court stated:

"Mr. Hudgins, I have to say that in the 21 years I've sat on the bench, from a
prosecution point of view, this was one of the strongest cases that I've seen. It was
uncontroverted that you were fleeing from law enforcement, and you were traveling at
. . . an extremely high rate of speed and . . . at times your speed approached 120 miles an
hour.
". . . I recall the evidence that you turned your lights on and . . . off . . . and
passed vehicles on the right side of the road, and it was nighttime.
". . . [T]here [was] a four-way stop . . . and you collided into [the two victims] . . .
as a result of that collision they both died."
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"There was never any question about your involvement, whether you were
driving. . . .
. . . .
"So I did instruct the jury on all of the lesser included offenses that [trial counsel]
requested, including involuntary manslaughter, associated with a DUI.
"With respect to those specific issues you've raised that the trial counsel—that
[trial counsel] failed to consult, investigate and use an expert to testify as to your blood
alcohol level, he indicated that he thought that the crime . . . was a general intent crime as
opposed to a specific intent crime. I thought that too.
"I don't know that it was addressed specifically but I thought then and I still think
it is. So it wouldn't have made my difference and that really wouldn't have been relevant.
". . . [T]he jury in this case had the opportunity . . . to . . . convict[] you of
manslaughter."

The district court went on to explain that: (1) a theory under comparative fault
involving the pursuit policy would not have been relevant in this criminal case; (2) use of
an expert on Hudgins' blood alcohol level or a request for a voluntary intoxication
instruction would have been denied because fleeing and eluding was a general intent
crime; and (3) the court in its observation never perceived Hudgins as having any form
of mental disability or inability to assist in his defense. Finally, the court reminded
Hudgins that trial counsel presented a compelling argument for ordering his sentences to
run concurrently rather than consecutively, although two victims' lives were lost. As a
result, the district court sentenced Hudgins to concurrent life sentences with a mandatory
minimum of 20 years.

Hudgins timely appeals the district court's denial of his motion.

ANALYSIS

Within Hudgins' broad contention that Adamson was ineffective as his trial
counsel, he has made four specific claims: (1) failure to consult or hire an expert to testify
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about Hudgins' ability to form intent with a blood alcohol level of .15; (2) failure to
properly preserve for appeal a request for introduction at trial of the Cherokee County
Sheriff's Department high-speed pursuit policy; (3) failure to pursue a voluntary
intoxication defense to the felony fleeing and eluding charge; and (4) failure to argue
Hudgins lacked the mental state to be convicted of the charges. Hudgins further argues
cumulative errors by Adamson denied him a fair trial.

When the district court has had an evidentiary hearing on a claim of ineffective
assistance of counsel, we review the district court's factual findings using a substantial
competent evidence standard and the legal conclusions de novo. State v. Butler, 307 Kan.
831, 853, 416 P.3d 116 (2018).

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that the performance of trial counsel was deficient under the totality of
the circumstances, and (2) the defendant was prejudiced, meaning there is a reasonable
probability the jury would have reached a different result absent the deficient
performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. A reviewing court must strongly presume that counsel's conduct fell within
the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970,
318 P.3d 987 (2014). To establish prejudice, the defendant must show a reasonable
probability that, but for counsel's deficient performance, the outcome of the proceeding
would have been different, with a reasonable probability meaning a probability sufficient
to undermine confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d
828 (2015).

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If counsel has made a strategic decision after making a thorough investigation of
the law and the facts relevant to the realistically available options, counsel's decision is
virtually unchallengeable. Strategic decisions made after a less than comprehensive
investigation are reasonable exactly to the extent a reasonable professional judgment
supports the limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292
P.3d 318 (2013).

Voluntary intoxication defense; expert on effect of alcohol

Hudgins argues Adamson was ineffective for failing to pursue a voluntary
intoxication defense and for failing to consult with or hire an expert on the effect of his
blood alcohol level on his ability to form intent. Whether fleeing or attempting to elude a
police officer was a general intent or specific intent crime is at the heart of each of those
arguments. The State asserts that Hudgins' trial counsel was not ineffective because
fleeing or eluding under K.S.A. 2009 Supp. 8-1568(b)(1)(C) was a general intent crime
and a voluntary intoxication defense was, therefore, unavailable for any of Hudgins'
convictions.

"'Whether a criminal statute establishes a general intent or a specific intent offense
is a legal question over which appellate courts exercise unlimited review.'" State v.
Kershaw, 302 Kan. 772, 776, 359 P.3d 52 (2015). "'[V]oluntary intoxication is not a
defense to general intent crimes, [although it] may be used to negate the intent element of
a specific intent crime.'" State v. Hilt, 299 Kan. 176, 192, 322 P.3d 367 (2014).
"Typically, a general intent crime does not require the State to prove the defendant
intended the specific harm or result." State v. Seba, 305 Kan. 185, 211, 380 P.3d 209
(2016).

Hudgins' argument for use of his intoxication level as a part of his defense focuses
on the crime of fleeing or attempting to elude a police officer for which he was convicted
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and which formed the underlying felony for his two felony murder convictions. We
should be clear at the outset of our review that, under our caselaw, felony murder is not a
specific intent crime. State v. Robinson, 256 Kan. 133, 136, 883 P.2d 764 (1994).

At the time of Hudgins' crimes, our criminal code described the relevance of
intoxication as a defense in this way:

"An act committed while in a state of voluntary intoxication is not less criminal
by reason thereof, but when a particular intent or other state of mind is a necessary
element to constitute a particular crime, the fact of intoxication may be taken into
consideration in determining such intent or state of mind." K.S.A. 21-3208(2).

In 2009, the crime of fleeing or attempting to elude a police officer was defined as:

"Any driver of a motor vehicle who willfully fails or refuses to bring such driver's
vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or
police bicycle, when given visual or audible signal to bring the vehicle to a stop, and
who: (1) Commits any of the following during a police pursuit: (A) Fails to stop for a
police road block; (B) drives around tire deflating devices placed by a police officer; (C)
engages in reckless driving as defined by K.S.A. 8-1566 and amendments thereto; (D) is
involved in any motor vehicle accident or intentionally causes damage to property; or (E)
commits five or more moving violations." (Emphasis added.) K.S.A. 2009 Supp. 8-
1568(b)(1).

Hudgins contends that "willfully" in that statute made it a specific intent crime.

In State v. Bruce, 255 Kan. 388, 874 P.2d 1165 (1994), the Supreme Court's
review included a jury conviction for child abuse. One of Bruce's arguments involved a
claim that a voluntary intoxication instruction should have been given. The court
described that argument as follows:

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"Voluntary intoxication may be a defense to a crime requiring a specific intent.
State v. Sterling, 235 Kan. 526, Syl. ¶ 2, 680 P.2d 301 (1984). The defendant recognizes
that this court in State v. Hupp, 248 Kan. 644, 652-53, 809 P.2d 1207 (1991), held that
the words 'cruelly beating or inflicting cruel and inhuman corporal punishment' do not
require a specific intent to injure. However, he observes that the crime of child abuse
(K.S.A. 21-3609) also includes the phrase 'willfully torturing,' which he contends does
require specific intent, and he contends that because the case went to the jury on all three
theories of child abuse, the jury should have been instructed on voluntary intoxication as
a defense to child abuse by means of willful torture." 255 Kan. at 392.

The district court had instructed the jury in Bruce that the first element of proof for the
charge of abuse of a child was: "That the defendant willfully tortured, cruelly beat, or
inflicted cruel and inhuman bodily punishment upon a child," and that "[w]illfully means
conduct that is purposeful and intentional and not accidental." 255 Kan. at 393.

The Supreme Court analyzed the question in this way:

"Where a crime requires a specific intent, an instruction on voluntary intoxication
as a defense to the crime may be appropriate. K.S.A. 21-3208(2); State v. Sterling, 235
Kan. 526, Syl. ¶ 2, [680 P.2d 301 (1984)]. 'The distinction between a general intent crime
and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-
3201, the statute defining the crime in question identifies or requires a further particular
intent which must accompany the prohibited acts.' 235 Kan. 526, Syl. ¶ 1. In Sterling, this
court held that criminal damage to property under the theory of willfully damaging or
injuring property under K.S.A. 21-3720(1)(a) did not require specific intent such that an
instruction on the voluntary intoxication defense was required, but this court recognized
that voluntary intoxication may be a defense to criminal damage to property under K.S.A.
21-3720(1)(b), which required injuring or damaging property 'with intent to injure or
defraud an insurer or lienholder.' 235 Kan. at 530. Hence, the question here is whether
'willfully torturing' requires a specific intent to injure in addition to the general intent
required." (Emphases added.) 255 Kan. at 394.

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Bruce argued that "torture" did, in fact, require "a specific intent to inflict pain or to
injure." But the Supreme Court disagreed, concluding that "[a] specific intent to injure is
not implicit in the phrase 'willfully torturing.'" 255 Kan. at 394.

The crime of fleeing or attempting to elude a police officer prescribed no
particular intent. We find that, in the context of the statute, the plain meaning of
"willfully fails or refuses to bring such driver's vehicle to a stop" describes an act done
"on purpose," separating a criminal failure to stop from a failure occurring unknowingly
or accidentally. Neither "willfully damaging or injuring property" in Sterling, nor
"willfully torturing" in Bruce constituted a specific intent requirement. We find willfully
failing or refusing to stop is likewise not a requirement for specific intent and we agree
with the district court and Adamson that the fleeing or attempting to elude charge against
Hudgins was a general intent crime.

As the district court pointed out after the hearing on the 60-1507 motion, the jury
was given the opportunity to convict Hudgins of the lesser offense of involuntary
manslaughter and instead found him guilty of the primary charge. Adamson was not
ineffective for failing to ask for a voluntary intoxication instruction and the district court
did not err in failing to give one.

Hudgins also argues Adamson was ineffective for failing to consult an expert
regarding the effect of alcohol and how it diminishes a person's mental capacity. Since
we have found that both Adamson and the district court correctly classified the fleeing
and eluding charge as a general intent crime, precluding a voluntary intoxication defense,
evidence of the effect of Hudgins' level of intoxication on his thought processes would
have been irrelevant and inadmissible. Adamson was allowed to argue Hudgins' level of
intoxication with respect to the lesser offense, and he was not ineffective for failing to
consult or hire an expert for that purpose.

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Lack of requisite mental state

Hudgins next maintains that the fact he once had been found incompetent to stand
trial required his attorney to raise a defense based on mental disease or defect. First,
Hudgins offers no more on this point than a conclusory statement unsupported by
pertinent authority. As a result, this claim either should be deemed waived and
abandoned, or it should be denied. See State v. Pewenofkit, 307 Kan. 730, 731, 415 P.3d
398 (2018) (failure to support a point with pertinent authority or show why it is sound
despite a lack of supporting authority or in the face of contrary authority is akin to failing
to brief the issue); State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018) (issues not
adequately briefed are deemed waived and abandoned).

Second, however, even if the merits of this argument are considered, the record
from the 60-1507 hearing on this question is unequivocally contrary to this claim.
Adamson testified that Hudgins not only understood his charges and could assist in his
defense, but explained how Hudgins did his own legal research and provided it to
Adamson, who then discussed with him whether the cases Hudgins found would or
would not be valid for his case. Adamson described discussing the defense strategy with
Hudgins, who also consented to that strategy on the record with the court, in chambers.

The district judge noted that throughout the underlying proceedings, he had no
reason to believe that Hudgins had a mental disability or that he could not understand the
proceedings against him. In fact, after receiving treatment, Hudgins was given an
additional competency hearing. Before finding Hudgins competent to stand trial, the
district court heard testimony from a licensed psychologist who stated: "My opinion is
that [Hudgins] does understand the charges against him. He understands the proceedings
against him. And he has the ability and capacity to join with his attorney in forming a
defense." We find no merit in this claim.

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High-speed pursuit policy

During the trial, outside the presence of the jury, the State asked the district court
to exclude any use of the Cherokee County Sheriff's Department high-speed pursuit
policy. Adamson argued that for his client to have a fair trial, the jury should be allowed
to consider the role of the pursuing deputy in the case. The district court acknowledged
that the policy might be relevant in a civil action, but agreed with the State that adherence
to, or violation of, the policy was not relevant in the criminal case. The district court
ordered that the policy not be used.

After the district court's ruling, Adamson made an oral proffer of the policy and
formally noted his objection. In his direct appeal, Hudgins argued that the district court
erred by excluding use of the policy in his trial, but the Supreme Court found "the trial
transcript does not reflect that a written department policy was actually marked as an
exhibit or provided to the district court informally." As a result, the court found "except
for counsel's conclusory statements, there is nothing for this court to review to determine
the claimed relevancy of this excluded evidence," and declined to review that issue on its
merits. 301 Kan. at 650-51.

In ruling on Hudgins' K.S.A. 60-1507 motion, the district court reiterated its
finding that the policy was irrelevant and consequently rejected Hudgins' argument that
the failure to preserve that issue for appeal constituted ineffective assistance of counsel.
Hudgins now argues the district court erroneously reached that conclusion.

Hudgins and the State both direct us to State v. Anderson, 270 Kan. 68, 12 P.3d
883 (2000), in making their arguments regarding the relevance, if any, of the pursuit
policy. In that case, our Supreme Court ruled that:

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"The negligence or other fault of the officer in an accident resulting from a police
pursuit is not a defense to a charge against the defendant regarding the accident. The fact
that the officer may have shared responsibility or fault for the accident does not exonerate
the defendant. In short, whether the officer's conduct could be described with such labels
as negligent, careless, tortious, cause for discipline, or even criminal, in an action against
the officer, is not an issue with respect to the defendant. In this sense the 'reasonableness'
of the officer's conduct, focuses upon the officer's point of view, and the officer's
blameworthiness for the accident is not relevant to the defendant's acts." 270 Kan. at 77.

In the face of that definitive statement by the Supreme Court, Hudgins nonetheless
argues the court in Anderson left an opening for consideration of the actions of the
pursuing deputy in his case. He relies on this statement concerning the circumstances in
Anderson:

"Since the trooper's conduct was a direct and specific response to defendant's conduct, the
claim that the trooper's conduct was a superseding cause of the accident can be supported
only by showing that the trooper's conduct was so unusual, abnormal, or extraordinary
that it could not have been foreseen." (Emphasis added.) 270 Kan. at 76-77.

Hudgins fails, however, to note the Anderson court's application of that analysis, when it
found:

"Our test for foreseeability set out in [State v. Davidson, 267 Kan. 667, 987 P.2d
335 (1999)] . . . focuses on the defendant's point of view, that is, whether the harm that
occurred was a reasonably foreseeable consequence of the defendant's conduct at the time
he or she acted or failed to act.
". . . Applying the test stated in Davidson, we find that (1) Anderson's reckless
speeding created a situation which resulted in a fatal accident and (2) Anderson could
have reasonably foreseen that such an accident would occur as a result of what he did."
270 Kan. at 77.

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As the Supreme Court recounted on Hudgins' direct appeal, Hudgins initially
responded to the deputy's traffic stop by pulling over, but he then sped away from the
deputy and drove at speeds up to 120 miles per hour at night, with lights on and off, at
times in the lane of oncoming traffic and on the shoulder. As the court found in
Anderson, we have no hesitation in finding Hudgins' actions created the situation that led
to the tragic deaths of the innocent victims, and we find Hudgins easily could have
foreseen the deputy's pursuit and the likelihood of an accident as a result of his actions.

We find the principle enunciated in Anderson controls, and neither the negligence
of the deputy nor any other characterization of the deputy's actions was a defense to, or
relevant for consideration of, Hudgins' actions. The district court correctly found the
failure at trial to preserve the issue of exclusion of the policy for appeal did not constitute
ineffective assistance of counsel.

Cumulative error

Finally, Hudgins presents a broad unsupported assertion that "numerous
cumulative errors of counsel" combined to constitute ineffective assistance of counsel.
Error cannot be "cumulative" when we have found none to exist. We find no cumulative
error when the record fails to support the errors a defendant raises on appeal. State v.
Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015), and even a single error cannot
support reversal under the cumulative error doctrine. State v. Gonzalez, 307 Kan. 575,
598, 412 P.3d 968 (2018). There is no merit to this unsupported claim.

Affirmed.