Jones v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,947

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DENZEL DURRELL JONES,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed November 27,
2019. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Ethan Zipf-Sigler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., BRUNS, J., and WALKER, S.J.

PER CURIAM: Following a 2010 bench trial, the Wyandotte County District Court
found Denzel Durrell Jones guilty of second-degree murder. After an unsuccessful direct
appeal, Jones filed a timely motion under K.S.A. 60-1507 in which he requested his
conviction be set aside and he be granted a jury trial. In his motion, he claimed he
received ineffective assistance from his trial counsel. The original trial judge conducted a
full hearing on the motion, but recused himself before ruling. After a second district
judge reviewed the court records and transcripts of the 60-1507 hearing, he denied Jones'
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motion. After considering Jones' objections to the denial in this appeal, we affirm the
findings of the district court.

FACTS

The underlying case

In April 2010, Jones waived his right to a jury trial before Judge Robert P. Burns.
Later that month, after a bench trial, Judge Burns found Jones guilty of second-degree
murder. Prior to sentencing, Jones filed pro se a motion for a new trial claiming only that
the evidence had been insufficient to convict him of second-degree murder. He argued he
should have been convicted of the lesser included offense of involuntary manslaughter.
His attorney, Robert DeCoursey, also filed a motion for a new trial, in which he argued
the same point. DeCoursey then filed a motion for a downward durational departure
asking the district court to sentence Jones under the involuntary manslaughter statute.

As an aside, we note that the journal entry of conviction in this case indicates that
Jones was convicted after a guilty plea. This is an error which should be corrected by a
journal entry nunc pro tunc to reflect his plea of not guilty.

The district court conducted a hearing on Jones' motions. At its conclusion, Judge
Burns stated that after the three-day bench trial in which he heard testimony from several
witnesses, the court issued its verdict based on all of the evidence submitted, and he had
heard nothing to warrant a change to his decision. Accordingly, the district court denied
Jones' motions for a new trial. The court then denied the motion for a durational
departure and sentenced Jones to the standard prison term of 131 months based on his
criminal history score. The court also ordered that Jones complete 36 months of
postrelease supervision, pay restitution, and register as a violent offender for 10 years.

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Jones filed an unsuccessful direct appeal in which he raised two issues: (1) The
evidence was insufficient to convict him of second-degree murder and—"at best"—he
was guilty of involuntary manslaughter; and (2) his juvenile adjudications were
improperly used to increase his sentence. State v. Jones, No. 104,985, 2012 WL 2045347
(Kan. App. 2012) (unpublished opinion). Another panel of our court found the evidence
was sufficient to affirm Jones' conviction for second-degree murder and stated, in
relevant part:

"[T]he evidence was sufficient to conclude that although Jones did not intentionally kill
Willie Washington, he acted recklessly under circumstances manifesting extreme
indifference to the value of human life. Jones was, by his own admission, playing with a
loaded gun while under the influence of marijuana, in a small area with three people
present. Furthermore, whether intentional or not, Jones aimed the rifle in the direction of
Washington and applied at least 4 1/4 pounds of pressure to the trigger, discharging the
rifle and killing Washington." 2012 WL 2045347, at *1.

After filing an unsuccessful petition for review with the Kansas Supreme Court, the
mandate affirming his conviction and sentence was issued on March 28, 2013.

Jones' K.S.A. 60-1507 motion

Almost a year later, Jones filed a motion for relief under K.S.A. 60-1507, in which
he claimed DeCoursey "manipulated me into having a bench trial by stating the judge
was his good friend and he was going to have a drink with him to see if I should trust
[him]." The district court appointed counsel to represent Jones and set the motion for an
evidentiary hearing.

At the July 2014 motion hearing, also before Judge Burns, DeCoursey testified
that during his representation of Jones, they met "quite often." He noted that he had
obtained all of the discovery from the State and reviewed it all with Jones. DeCoursey
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said that he spoke with Jones about the differences between a jury trial and a bench trial.
He explained to Jones that a jury could come back with a verdict of involuntary
manslaughter.

DeCoursey said they spoke numerous times about the possibility of a bench trial,
but the decision belonged to Jones and he believed Jones understood that he had that
right. DeCoursey also said that Jones ultimately agreed that the bench trial was the right
thing to do. DeCoursey testified he recommended to Jones that he waive his right to a
jury trial because DeCoursey planned to argue that the facts of the case warranted an
involuntary manslaughter conviction, which was their goal. DeCoursey disclosed that
they would have pled to involuntary manslaughter. He believed that the shooting was
accidental based on the issues and the fact that Jones told him drugs were not involved.

DeCoursey testified that he asked Jones numerous times if drugs were involved in
his case and Jones "emphatically told me that there was no drugs or alcohol involved
whatsoever." Jones admitted he never told DeCoursey that he had been under the
influence of marijuana at the time of the shooting but that he testified to being under the
influence in court.

DeCoursey testified that—in hindsight—had he known Jones was going to testify
to being under the influence of drugs at the time of the shooting, he would not have
recommended Jones waive his right to a jury trial. DeCoursey explained he did not think
a judge would "look very kindly upon that, especially when you're dealing with a
weapon." He went on to explain that being under the influence meant you are acting
deliberately or recklessly in handling weapons. DeCoursey stated that under those
circumstances the case would have been better tried to a jury.

DeCoursey did not recall if Jones ever expressed his desire to have a jury trial, but
he did not believe he pressured Jones into waiving his right to a jury trial. He
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acknowledged he told Jones he was friends with the judge, "I'm friends with all the
judges, I think," and he explained to Jones that he had tried cases to the bench with this
judge before and, based on his experiences in front of the judge, he thought Jones "would
get a fair shake in front of Judge Burns."

DeCoursey did not believe he insinuated that Jones would get a better result
because of his friendship. He did not recall telling Jones he would get a drink with the
judge. "I don't know why I would tell [Jones] that." DeCoursey also did not recall telling
Jones he was going to get a drink with the judge to see if Jones could trust him,
emphasizing that "I know I wouldn't do that, no."

Jones testified that DeCoursey explained to him the differences between a bench
trial and a jury trial. Jones was unfamiliar with a bench trial at the time and had only ever
heard of jury trials. Jones said that at the point they had the discussion about a bench trial,
DeCoursey had already told Jones he was friends with the judge and was going to go
have a drink with him "to see what he was going to tell him" about Jones' case. "I was
influenced that it was going to be judged righteously under his friend who he was telling
me."

Jones testified that DeCoursey never came back to him to report on this drink and
meeting. "He didn't come back and say nothing, but, you know, I assumed that
everything, you know, manifested." Jones assumed favorable treatment. He admitted he
never told DeCoursey that he wanted a jury trial, and he agreed with DeCoursey about
having the bench trial because of his friendship with the judge. Jones felt like DeCoursey
pressured him to have the bench trial.

Jones testified that, based on the outcome, the bench trial was not "the best thing
to do." At the time, he acknowledged he could have had a jury trial but decided to have a
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bench trial based on DeCoursey's advice. He thought the bench trial was his best choice,
and that is what he wanted at the time.

Following the presentation of evidence and arguments at the hearing, Judge Burns
noted that DeCoursey's testimony put him in the position of being a witness. Judge Burns
acknowledged he was aware of the allegations in the motion, but Jones' claims in court
regarding ex parte communications changed things from "allegations made in a pro se
petition to sworn testimony." To avoid the appearance of impropriety, Judge Burns
recused himself and referred the matter for reassignment.

In March 2015, a different district court judge, Judge R. Wayne Lampson, filed a
journal entry in the case. The district judge noted that he thoroughly reviewed the file, the
underlying case, the briefs and arguments, and the transcript of the July 2014 hearing. He
found there was no support for Jones' claim that DeCoursey's friendship with Judge
Burns had any bearing on the decision of the district court. The court found that
DeCoursey's performance did not fall below a standard of reasonableness and determined
it was unnecessary to address prejudice. The district court denied Jones' request for relief
and dismissed the motion. Jones timely appealed from the dismissal of his motion.

ANALYSIS

On appeal, Jones contends that the district court erred in denying him relief under
K.S.A. 60-1507. He claims DeCoursey was ineffective as his trial counsel because
DeCoursey manipulated him into waiving his right to a jury trial with suggestions that his
friendship with Judge Burns would work in Jones' favor at a bench trial. Jones further
claims that he relied on DeCoursey's representations of friendship with the judge and
believed he would be convicted of the lesser offense of involuntary manslaughter if he
had a bench trial. In response, the State argues the district court's denial of Jones' motion
was supported by substantial competent evidence and should be affirmed.
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As an initial matter, Jones does not claim or argue that his jury trial waiver was
not voluntarily or knowingly made. A point raised incidentally in a brief and not argued
therein is deemed abandoned. Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017).
Issues not adequately briefed are also deemed waived or abandoned. In re Marriage of
Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018).

Nevertheless, Jones contends he was entitled to relief on his motion. To be entitled
to relief under K.S.A. 2018 Supp. 60-1507, the movant must establish by a
preponderance of the evidence either: (1) "the judgment was rendered without
jurisdiction"; (2) "the sentence imposed was not authorized by law or is otherwise open to
collateral attack"; or (3) "there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack." K.S.A. 2018 Supp. 60-1507(b) (grounds for relief); Supreme Court Rule 183(g)
(2019 Kan. S. Ct. R. 228) (preponderance burden).

Here, Jones alleges he is entitled to relief because his constitutional right to a jury
trial was violated when DeCoursey manipulated him into waiving that right to be tried
before the bench. Jones contends the issue in this case is "whether or not the disclosure
by [DeCoursey] to Mr. Jones that he was friends with the judge and that he was going to
have drinks with [the judge], caused Mr. Jones to make a decision he would not
otherwise have made to waive a jury trial because he believed his trial counsel had an
inside track."

A district court has three options when handling a K.S.A. 2018 Supp. 60-1507
motion:

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
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which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

The standard of review depends upon which of these options a district court utilizes.
Sola-Morales, 300 Kan. at 881. In a case such as this—where the district court conducted
a full evidentiary hearing and issued findings of fact and conclusions of law concerning
the issues presented—we review 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); see Rule 183(j).

When the district court conducts an evidentiary hearing on claims of ineffective
assistance of counsel, the appellate courts likewise review the district court's factual
findings using a substantial competent evidence standard. The district court's legal
conclusions based on those facts are then also reviewed 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 defense counsel was deficient under all 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, 300 Kan.
at 882 (relying on Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 [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
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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).

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. 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) (citing Strickland, 466 U.S. at 690-91).

Jones contends that the district court's findings that "whatever friendship Mr.
DeCoursey had with Judge Burns, it did not have a bearing on the decision by the Court"
did not have "support by a substantial competent evidence [standard]." Substantial
competent evidence is "'evidence which possesses both relevance and substance and
which furnishes a substantial basis of fact from which the issues can be reasonably be
resolved.'" Wiles v. American Family Life Assurance Co., 302 Kan. 66, 73, 350 P.3d 1071
(2015).

When a district court's decision is challenged for insufficiency of evidence or as
being contrary to the evidence, we do not reweigh the evidence or pass on the credibility
of the witnesses. If the evidence, when considered in the light most favorable to the
prevailing party, supports the verdict, the verdict will not be disturbed on appeal. Gannon
v. State, 298 Kan. 1107, 1175-76, 319 P.3d 1196 (2014).

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The district court found that DeCoursey's performance was not so deficient that
Jones was deprived of his right to counsel and so the court found it unnecessary to
address whether Jones was prejudiced. The district court based this finding on the record
and Jones' admission that he told DeCoursey that drugs were not involved in the
shooting:

"It is clear that defense counsel, based on the review of the police files and the
preliminary hearing, and most importantly from what he had been told by Jones, had as
his opinion that his client's best chance of convincing a trier of fact [to convict on the
lesser offense of involuntary manslaughter] was with a judge and not a jury. . . . The
transcript is clear that trial counsel followed through on that strategy. While this might
not be the only approach, this Court does not find this to be ineffective. The evidence
against Mr. Jones was substantial, and it is a stretch to suggest that a jury trial would have
resulted in any different verdict than what was entered by the Judge."

Without explicitly stating so, the district court was highly deferential and presumed
DeCoursey's conduct was strategic and fell within the broad range of reasonable
professional assistance. This was proper. See Kelly, 298 Kan. at 970; Cheatham, 296
Kan. at 437.

Jones' brief focuses almost entirely on framing DeCoursey's testimony to support
Jones' argument that he was pressured and manipulated by DeCoursey to waive his right
to a jury trial. He argues that the district court's findings were not based on substantial
competent evidence, but he does not cite to anything the district court did not already
consider. At its core, Jones' appeal is an argument for this court to find his testimony
regarding his version of events more credible than DeCoursey's testimony. Essentially,
Jones asks us to reweigh the evidence—something we cannot do. See Gannon, 298 Kan.
at 1175-76.

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When viewed in a light most favorable to the State, the evidence supports the
district court's conclusion that DeCoursey formed an opinion and a strategy that he
believed would be most beneficial to Jones and that he based that opinion largely on the
false information Jones gave him. Because of this, DeCoursey's performance was not
deficient.

Further, even if DeCoursey's representation was ineffective, Jones cannot establish
prejudice. Throughout his brief, Jones argues only, for example, that "a jury may have
convicted [him] of involuntary manslaughter," or that a jury "could have come back with
an involuntary manslaughter [conviction]," and "the outcome of a jury trial could have
been considerably different." (Emphases added.) These arguments fall short of meeting
Jones' burden to show a reasonable probability that, but for DeCoursey's deficient
performance, the outcome of the proceeding would have been different. The record
demonstrates there was not a reasonable probability sufficient to undermine confidence in
Jones' conviction for second-degree murder. See Sprague, 303 Kan. at 426. This is
reinforced by the fact that Jones raised the issue of whether there was sufficient evidence
to convict him of second-degree murder in his direct appeal and his conviction was
affirmed. Jones failed to show a reasonable probability that, but for DeCoursey's deficient
performance, the outcome of the proceeding would have been different.

When the record and evidence presented at Jones' K.S.A. 60-1507 hearing is
viewed in a light most favorable to the State, it is clear that under all of the
circumstances, DeCoursey's recommendation to Jones to waive his right to a jury trial
and be tried by the bench fell within the broad range of reasonable professional
assistance. To find otherwise would require us to reweigh the evidence. Even if Jones'
could establish as true his claim that DeCoursey manipulated him into waiving his right
to a jury trial, Jones cannot establish that he was prejudiced by any deficient
representation. We find that the district court's conclusions were supported by substantial
competent evidence.
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Before concluding this opinion, we feel obliged to comment on two particular
procedural aspects of this case which we find troubling. First, we believe that it should
have been plain from the face of Jones' K.S.A. 60-1507 motion that Judge Burns faced
the distinct possibility of becoming a fact witness on the issues in the motion, as Judge
Burns himself later acknowledged by recusing himself after he conducted the hearing.
We are puzzled that, having decided to go ahead and preside over the hearing, Judge
Burns waited until after all of the evidence and oral argument was made to decide recusal
was appropriate. We do not find the distinction he made between "allegations in a pro se
petition" and "sworn testimony" as the reason for the judge's belated recusal to be
particularly persuasive. In our view it would have been the better course for Judge Burns
to remove himself from any involvement in the case as soon as it was filed.

Second, we are likewise concerned that the district judge who ultimately ruled on
Jones' 60-1507 motion, Judge Lampson, did so only by a review of the written record,
including a transcript of the proceedings on the motion held before Judge Burns, without
holding a new evidentiary hearing.

Our appellate courts have frequently commented on the reason why we do not
reweigh evidence presented before a district court. "One of the reasons that appellate
courts do not assess witness credibility from the cold record is that the ability to observe
the declarant is an important factor in determining whether he or she is being truthful."
State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008). In fact, our Supreme Court has
referred to "the general rule that appellate courts will not overturn a trial court's weighing
of the evidence or assessment of witness credibility from a cold record." State v.
Schaefer, 305 Kan. 581, 595, 385 P.3d 918 (2016).

We believe the same considerations should apply under the circumstances of this
case. A district judge doing a paper review of proceedings at a hearing where important
evidence was presented is in no better position than we are in assessing witness
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credibility. There is no indication in the record that the parties to the K.S.A. 60-1507
hearing were offered the opportunity for a rehearing, obviously including the possibility
of Judge Burns testifying, before the district court ruled on the motion from the cold
record.

So while we have no doubt that the reviewing district judge diligently considered
the entire cold record before making his findings, the fact remains that the judge did not
have the opportunity to observe the demeanor of the witnesses and personally assess their
credibility before adjudicating Jones' 60-1507 claims. Had Jones raised this omission as
an issue on appeal, our inclination would have been to remand this matter for a full
evidentiary hearing before the district court, instead of simply a paper review.

But Jones' appeal focused almost entirely upon his claims that DeCoursey was
ineffective as his trial counsel. He did not raise the issue of Judge Burns' participation in
the hearing of his 60-1507 motion or the lack of a new evidentiary hearing before the
reviewing district court, Judge Lampson. An appellate court only obtains jurisdiction
over the rulings identified in the notice of appeal. Associated Wholesale Grocers, Inc. v.
Americold Corporation, 293 Kan. 633, 637, 270 P.3d 1074 (2011). Because of this,
although our concerns remain, we lack jurisdiction to consider these as points of error on
appeal.

Affirmed.