Jaeger v. State

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NOT DESIGNATED FOR PUBLICATION

No. 116,425

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MATTHEW JAEGER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed October 20,
2017. Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Jon S. Simpson, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., MALONE, J., and LORI A. BOLTON FLEMING, District Judge,
assigned.

PER CURIAM: Matthew Jaeger appeals the district court's denial of his K.S.A. 60-
1507 motion alleging ineffective assistance of counsel. The district court summarily
denied some of Jaeger's claims and denied the remaining claims after an evidentiary
hearing. Finding no error, we affirm the district court's judgment.





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FACTUAL AND PROCEDURAL BACKGROUND

In August 2009, Jaeger was convicted following a jury trial of kidnapping,
aggravated battery, and criminal threat. The district court sentenced Jaeger to 106
months' imprisonment. Jaeger's convictions were affirmed on direct appeal. State v.
Jaeger, No. 104,119, 2011 WL 6382749 (Kan. App. 2011) (unpublished opinion), rev.
denied 296 Kan. 1133 (2013). The facts underlying the convictions are fully set out in
that opinion and only a few facts are summarized herein, for context.

Jaeger and Mary Francine Biggs were both students at the University of Kansas
and had dated off and on between August 2005 and October 2007. On October 7, 2007,
after trying repeatedly to reach Biggs by phone and by text, Jaeger broke into her
apartment. When he found her, he choked her to the point of unconsciousness and
inflicted serious injuries on her, including severe trauma to her external genitals.

An eyewitness told the 911 dispatcher that two men dragged Biggs by her arms
and hair and forced her into a car. Law enforcement officers stopped the car a short time
later, finding Biggs in the backseat with Jaeger. When Biggs exited the car, an officer
noticed blood dripping onto the pavement where she was standing. Officers took Jaeger
into custody. A videotape of the officer interviewing Jaeger at the police station was
introduced at trial.

Biggs required immediate surgery to stop the bleeding and repair a hematoma and
lacerations. She was hospitalized for 11 days. While hospitalized, she gave a videotaped
statement. This videotaped statement was introduced at trial after Jaeger's motion in
limine to exclude it was denied. Biggs also testified at trial and was subject to cross-
examination on the videotaped statement and her testimony.

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The crime was reported in the Lawrence Journal-World newspaper and its online
edition on October 19, 2007. At least 10 other articles appeared on the newspaper's
website over the next 22 months leading up to trial. Readers of the online version of the
articles posted many comments, most of them anonymously, that showed animus toward
Jaeger. At least one of the articles and attendant comments remained available online
through the first day of jury selection in July 2009.

At trial, Jaeger’s theory of defense was that he entered Biggs’ apartment because
he feared she was being harmed and he intended to defend her. The defense contended
that Biggs injured herself by falling onto the railing of the bed. The defense asserted that
Biggs got into the car willingly with Jaeger, that he was helping her get to a hospital for
medical treatment, and that he had no intent to restrain or kidnap her.

The jury convicted Jaeger of kidnapping (instead of aggravated kidnapping),
aggravated battery, and criminal threat. After this court affirmed Jaeger's convictions, he
filed a K.S.A. 60-1507 motion on September 9, 2013, alleging ineffective assistance of
his trial counsel, Pedro Irigonegaray. The district court appointed counsel for Jaeger and
held a preliminary hearing on Jaeger's claims in October 2014. At the preliminary
hearing, the district court summarily denied some of Jaeger's claims. Specifically, the
district court denied Jaeger's claim that Irigonegaray was ineffective for failing to object
to Biggs' videotaped statement at trial on the grounds that it was cumulative evidence.
The district court also summarily denied Jaeger's claim that Irigonegaray was ineffective
for failing to request lesser instructions on aggravated battery.

The State conceded that three of Jaeger's claims merited an evidentiary hearing,
which the district court granted. Specifically, the district court granted an evidentiary
hearing on Jaeger's claims that Irigonegaray was ineffective for (1) failing to raise
voluntary intoxication as a defense; (2) failing to request a criminal restraint instruction;
and (3) failing to request a change of venue.
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The district court held an evidentiary hearing on March 6, 2015. At the hearing,
Jaeger testified that he had told Irigonegaray that on the night of the incident (1) he had
been fasting for three days and had only eaten a sub sandwich during that time; (2) he had
consumed five Valium and five Zanax pills; and (3) he had consumed alcohol, including
several shots of tequila. However, Irigonegaray did not pursue a voluntary intoxication
defense. Jaeger also testified that he had told Irigonegaray that he did not believe what
had happened with Biggs amounted to kidnapping. Jaeger explained that he had not
discussed the criminal restraint issue with Irigonegaray because he "didn't really have
legal knowledge . . . at the time." Finally, Jaeger testified that he had discussed the issue
of a change of venue at least five or six times with Irigonegaray.

Irigonegaray testified that he had considered the possibility of a voluntary
intoxication defense. However, he explained he did not pursue this defense because the
evidence presented at trial showed that Jaeger had made a voluntary decision to try to
protect Biggs and had taken specific actions to locate her. Because of this evidence,
Irigonegaray believed "[i]t would be incongruous to suggest that someone was so
intoxicated as to not have the ability to generate an intent when the primary defense was
that there was a specific intent to defend."

Regarding the instruction on criminal restraint, Irigonegaray testified that he chose
not to request the instruction because of the defense he had chosen to pursue. He
explained that the defense was that no kidnapping had occurred at all, so there was no
discussion of any lesser offense instructions.

Finally, Irigonegaray testified that he had considered and discussed the possibility
of requesting a change of venue due to the significant publicity in the case. He
acknowledged that "many ugly statements" had been made in the press. Despite this
information, he chose not to investigate or pursue a motion for a change of venue because
his perspective "was that Douglas County was about as good a place in Kansas" as he
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could think to try a criminal case. He explained that if the case was transferred to another
county, it would likely end up in a more conservative county that would have a "lack of
open-mindedness to perhaps a defense such as the one we were pursuing." Irigonegaray
noted that he knew "at the time that a change of venue was an extremely difficult bar to
reach and had expressed concerns about whether or not we could be successful in
reaching it." Based on all these factors, and after discussing the issue with Jaeger, he and
his co-counsel decided that Jaeger could have a fair trial in Douglas County.

On July 24, 2015, the district court filed a memorandum order that contained
findings of fact and conclusions of law addressing the issues raised at the evidentiary
hearing. The district court found that Irigonegaray made a strategic decision not to pursue
a voluntary intoxication defense which was inconsistent with Jaeger's primary theory of
defense. The district court also found that Irigonegaray made a proper strategic choice not
to request an instruction on criminal restraint. Finally, the district court found that
Irigonegaray was not ineffective for failing to request a change of venue and that he
properly handled the issue of pretrial publicity with the panel on voir dire. Thus, the
district court found that Jaeger was not entitled to any relief and the court denied the
remainder of Jaeger's K.S.A. 60-1507 motion. Jaeger timely filed a notice of appeal.

ANALYSIS

On appeal, Jaeger claims the district court erred in denying his K.S.A. 60-1507
motion. Jaeger takes issue with the district court's decision to summarily deny some of
his claims, and he also argues that the district court erred in denying the claims addressed
in the evidentiary hearing. Specifically, Jaeger asserts on appeal that his trial counsel was
ineffective for (1) failing to object to Biggs' videotaped statement at trial; (2) failing to
request a lesser instruction on aggravated battery; (3) failing to raise voluntary
intoxication as a defense; (4) failing to request an instruction on criminal restraint; and
(5) failing to request a change of venue.
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The district court summarily denied some of Jaeger's claims at the preliminary
hearing. When the district court denies a K.S.A. 60-1507 motion based only on the
motions, files, and records after a preliminary hearing, the appellate court is in just as
good a position as the district court to consider the merits. Thus, the standard of review is
de novo. Grossman v. State, 300 Kan. 1058, 1061, 337 P.3d 687 (2014).

After a full evidentiary hearing on a K.S.A. 60-1507 motion, the district court
must issue findings of fact and conclusions of law concerning all issues presented.
Supreme Court Rule 183(j) (2017 Kan. S. Ct. R. 222). An appellate court reviews the
district court's findings of fact to determine whether they are supported by substantial
competent evidence and are sufficient to support the court's conclusions of law. Appellate
review of the district court's ultimate conclusions of law is de novo. State v. Adams, 297
Kan. 665, 669, 304 P.3d 311 (2013).

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that the performance of defense counsel was deficient under the totality
of the circumstances, and (2) prejudice, i.e., that 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) (relying on Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]).

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. The 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). If counsel has made a strategic decision after making a
thorough investigation of the law and the facts relevant to the realistically available
options, then counsel's decision is virtually unchallengeable. State v. Cheatham, 296 Kan.
417, 437, 292 P.3d 318 (2013).
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Failure to object to videotaped statement

Jaeger argues that Irigonegaray failed to object at trial to Biggs' entire videotaped
statement on the ground that it was cumulative to her trial testimony. In fact, Irigonegaray
filed a motion in limine seeking to exclude the entire videotaped statement on the ground
that it was more prejudicial than probative, and Irigonegaray filed a motion for
reconsideration after the district court denied the motion. At trial, although Irigonegaray
objected to a portion of the videotaped statement as being inadmissible, he failed to
object to the entire videotaped statement on the ground that it was cumulative evidence.
In the direct appeal, this court found that Jaeger failed to preserve the cumulative
evidence objection for appeal. Jaeger, 2011 WL 6382749, at *8.

Even if we assume that Irigonegaray's performance was deficient for failing to
preserve the cumulative evidence objection, Jaeger is unable to establish any prejudice on
this issue. Although this court found on direct appeal that the issue was not properly
preserved, this court went on to find that the district court did not abuse its discretion by
allowing Biggs to testify in person as well as admitting her videotaped statement into
evidence. 2011 WL 6382749, at *8. This court also concluded that Jaeger's right to a fair
trial was not substantially prejudiced by the admission of the videotaped statement. 2011
WL 6382749, at *8. Based on this court's findings in the direct appeal, we conclude that
the district court did not err in denying Jaeger's claim on this issue at the preliminary
hearing. See Trotter v. State, 288 Kan. 112, 133-34, 200 P.3d 1236 (2009) (determination
of prejudice in direct appeal controls the question of whether trial counsel's performance
deprived defendant of a fair trial).

Failure to request lesser instruction on aggravated battery

Jaeger argues that the district court erred in dismissing his claim at the preliminary
hearing that Irigonegaray was ineffective for failing to request instructions on lesser
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included offenses of aggravated battery and instructions defining "great bodily harm" and
"serious bodily injury." Jaeger argues that because "[t]he record contains no evidence of
trial strategy or any reason why Mr. Irigonegaray failed to request a lesser offense
instruction," the claim could not be resolved without an evidentiary hearing.

In rejecting Jaeger's claim on this issue at the preliminary hearing, the district
court made the following findings:

"Under Brice, lesser offenses of aggravated battery are warranted if the harm
suffered was 'slight, trivial, minor or moderate.' 276 Kan. at 774. Immediately following
this incident, Ms. Biggs could feel blood gushing out of her; she could not walk across
the street due to pain; she was 'drenched in blood' in the ambulance; at the hospital the
OB-GYN observed 'extensive trauma to the genital area, active bleeding and a rapidly
expanding hematoma.' Ms. Biggs required immediate surgery to evacuate the hematoma
and stop the bleeding. She was subject to a second surgery a day later to remove the
packing placed to stop the bleeding. Ms. Biggs remained in the hospital for 11 days, and
she required one week of home health care thereafter. She remained on a catheter for two
weeks after her dismissal from the hospital. As the Court of Appeals noted, 'it is
undisputed that Biggs suffered a significant injury, including substantial loss of blood.'
No reasonable jury could consider the injury slight, trivial, or minor.
"Petitioner also raises the failure of counsel to request a definition of great bodily
harm. Even if the definition had been given, the Court finds that the result of the trial
would not have differed. As stated, the injuries were not slight, trivial, minor or mere
bruising."

In State v. Valentine, 260 Kan. 431, Syl. ¶ 3, 921 P.2d 770 (1996), our Supreme
Court held that where there is no substantial evidence applicable to the lesser degrees of
the offense of aggravated battery, and all the evidence taken together shows that the
offense, if committed, is clearly of the higher degree, instructions relating to the lesser
degree of aggravated battery are unnecessary. Moreover, as the district court noted, in
State v. Brice, 276 Kan. 758, 774, 80 P.3d 1113 (2003), our Supreme Court stated that a
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lesser included instruction on aggravated battery is warranted if the harm suffered by the
victim was "slight, trivial, minor or moderate."

Here, we agree with the district court that the evidence of great bodily harm
suffered by Biggs was so overwhelming that no reasonable jury could have found
otherwise. This court stated as much in Jaeger's direct appeal when it found that "it is
undisputed that Biggs suffered a significant injury, including substantial loss of blood."
Jaeger, 2011 WL 6382749, at *7. We further note that at trial, Jaeger contested the cause
of Biggs' injury, but he did not challenge the severity of the injury. Based on the record
presented, we conclude that the district court did not err in rejecting Jaeger's claim at the
preliminary hearing that his counsel was ineffective for failing to request lesser
instructions and definitional instructions on aggravated battery.

Failure to raise voluntary intoxication defense

Jaeger argues that a voluntary intoxication defense would have negated the intent
element for kidnapping and resulted in acquittal and that Irigonegaray was ineffective for
failing to make an adequate investigation of this defense. The State responds by arguing
that Irigonegaray effectively decided not to pursue a voluntary intoxication defense. In
rejecting Jaeger's claim on this issue, the district court concluded as follows:

"With respect to the issue of [voluntary] intoxication, the hearing clearly
established that trial counsel made a strategic decision not to pursue [a voluntary]
intoxication defense which was inconsistent with their theory of defense. Trial counsel
reviewed the discovery and talked with Jaeger about the amount of drugs and alcohol he
consumed the night in question before the trial lawyers formulated a theory of the case.
The police officer who arrested Jaeger that night was of the opinion that Jaeger was not
intoxicated at the time. The interview was videotaped, and defense counsel could form an
opinion whether a jury would believe that Jaeger was so intoxicated that he could not
form the requisite intent. Jaeger failed to meet his burden to prove that no reasonable
attorney would have proceeded in this manner."
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The factual underpinnings of this conclusion are supported by substantial
competent evidence in the record. First, there was no substantial evidence supporting
Jaeger's claim that he was intoxicated on the night in question to the extent that he could
not form the intent to kidnap Biggs. The police officer who arrested Jaeger that night was
of the opinion that he was not intoxicated at the time. Moreover, Irigonegaray testified
that the defense theory was that Jaeger had made efforts to find Biggs and had entered her
apartment because he feared she was being harmed and he intended to defend her.
Irigonegaray testified, "it would be incongruous” to pursue a voluntary intoxication
defense when the primary defense was that there was a specific intent to defend.

Irigonegaray reviewed the discovery and talked with Jaeger about the amount of
drugs and alcohol he consumed the night in question before the trial lawyers formulated a
theory of the case. Based on the Jaeger's explanation for his actions, Irigonegaray pursued
a defense strategy that Jaeger was merely trying to help Biggs by taking her to the
hospital—a defense that was partially successful. Because a voluntary intoxication
defense would have been inconsistent with Jaeger's primary theory of defense, we agree
with the district court that Irigonegaray made a proper strategic decision not to pursue a
voluntary intoxication defense. The district court's factual findings were supported by
substantial competent evidence and support the district court's legal conclusion that
Jaeger failed to establish ineffective assistance of counsel on this claim.

Failure to request criminal restraint instruction

Jaeger claims that Irigonegaray provided ineffective assistance of counsel for
failing to request a criminal restraint instruction as a lesser offense of aggravated
kidnapping. The State argues that Irigonegaray effectively decided not to request an
instruction on criminal restraint. In rejecting Jaeger's claim on this issue, the district court
concluded as follows:

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"With respect to the issue of failure to request the trial court to instruct the jury
on criminal restraint as a lesser included offense of kidnapping, defense counsel again
made a strategic choice. The defense theory was that Ms. Biggs willingly accompanied
Jaeger to the car. The defense team called a blood spatter expert who testified that the
blood evidence was inconsistent with Ms. Biggs being forced out of her apartment and
into Jaeger's car. Had the trial strategy succeeded, it would have resulted in a complete
acquittal because Jaeger maintained that he was assisting Ms. Biggs and transporting her
to the hospital for help. While the trial strategy may have failed, this Court finds the
decision to argue for acquittal clearly falls within the region of tactics and strategy."

The factual underpinnings of this conclusion are supported by substantial
competent evidence in the record. Irigonegaray testified at the evidentiary hearing that he
did not contemplate seeking an instruction on criminal restraint because the theory of
defense was that Biggs went with Jaeger willingly, that Jaeger was helping her get to a
hospital for medical treatment, and that he had no intent to restrain or kidnap her. A
criminal restraint instruction would have been inconsistent with that theory.

The district court concluded that Irigonegaray's choice not to request a criminal
restraint instruction as a lesser included offense of aggravated kidnapping was the result
of a reasonable strategy to seek an acquittal on the original charge. This conclusion was
supported by substantial competent evidence presented at the evidentiary hearing which
was sufficient to support the court's conclusions of law. Thus, the district court did not err
in rejecting Jaeger's claim on this issue after the evidentiary hearing.

Failure to request a change of venue

Jaeger claims that his counsel was ineffective for failing to file a change of venue
motion based on the "significant media coverage" of the case that included inaccurate
information. Jaeger attached to his amended K.S.A. 60-1507 motion over 100 pages of
screenshots from the website of the Lawrence Journal-World newspaper, which included
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11 articles published by the newspaper—four in October 2007 when the crime occurred,
four in 2008, and three in the month before trial. Jaeger argues that "most of the
commentary on that publicity demonstrated significant animus toward . . . Jaeger," and
the comments came from "people who would be part of the jury pool."

The State argues that the district court properly concluded that Irigonegaray
reasonably chose to defend Jaeger in Douglas County. The State also argues that Jaeger
proves no prejudice on this issue. In rejecting Jaeger's claim on this issue, the district
court concluded as follows:

"21. Finally, Jaeger contends his trial lawyer was ineffective for failing to pursue
a change of venue motion. Jaeger seems to argue that prejudice can be presumed from the
tenor of the on-line comments, though he cannot show that these comments infected or
even affected the trial. The hearing testimony clearly showed that defense counsel and the
defense team carefully considered whether to file a motion in an attempt to change venue,
and they continued to discuss this issue as the case was pending. Defense counsel
concluded that Douglas County was probably the best county in Kansas to defend a
criminal case and was concerned with where the trial might land if the motion succeeded.
Simultaneously, defense counsel testified to succeed on a motion to transfer venue under
Kansas law is difficult and expensive.
"22. As an alternative, defense counsel elected to address the issue of pretrial
publicity with the panel on voir dire. Defense counsel submitted specialized jury
questionnaires and conducted some individualized voir dire. A number of jurors were
removed for cause. Jaeger did not challenge the empaneled jury in his motion or show
any prejudice. The Court finds that trial counsel made a reasonable strategic decision not
to pursue a change in venue."

A defendant requesting a change of venue based on pretrial publicity must satisfy
the district court that there exists in the county where the prosecution is pending so great
a prejudice against the defendant that he or she could not obtain fair and impartial trial in
that county. The defendant bears the burden to show that prejudice exists in the
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community as a matter of demonstrable reality and to show that the level of prejudice
makes it reasonably certain that the defendant cannot obtain a fair trial. State v. Roder,
300 Kan. 901, 909-10, 336 P.3d 831 (2014).

Irigonegaray testified that he and his co-counsel had numerous discussions on
whether to file a motion for change of venue and that he shared their decision with
Jaeger. Irigonegaray was concerned that a new venue could be disadvantageous to Jaeger
because of a "lack of open-mindedness" to their defense. He also knew that the standard
for winning a change of venue is "an extremely difficult bar to reach."

The district court found that the defense team "carefully considered whether to file
a motion in an attempt to change venue," and that conclusion is supported by
Irigonegaray's testimony. The district court also found that Irigonegaray took other
actions to address the issue of pretrial publicity, which included drafting specialized jury
questionnaires and conducting individualized voir dire of nine members of the jury panel.
The district court noted that while four jurors were removed for cause based on their
knowledge of pretrial publicity, "[n]othing about their prior knowledge or opinions was
revealed to other members of the jury." Finally, the district court found that Jaeger failed
to show any prejudice as a result of the failure to change venue.

The district court’s factual findings were supported by substantial competent
evidence and support the district court’s legal conclusion that Irigonegaray made a
considered strategic decision to not pursue a change of venue. Moreover, Jaeger failed to
meet his burden of showing that Irigonegaray's choice prejudiced his right to a fair trial.
Thus, we conclude the district court did not err in denying Jaeger's claim that
Irigonegaray was ineffective for failing to request a change of venue.

Affirmed.