Littlejohn v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,904

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KEDRIN D. LITTLEJOHN,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion on remand filed
January 10, 2020. Reversed and remanded with directions.

Michael P. Whalen and Krystle M. S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for
appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL and BUSER, JJ.

PER CURIAM: This case returns to us on remand from the Kansas Supreme Court.
See Littlejohn v. State, 310 Kan. 439, 447 P.3d 375 (2019) (Littlejohn III). We must
determine whether Kedrin D. Littlejohn has presented exceptional circumstances that
justify reaching the merits of his successive motion filed under K.S.A. 60-1507.



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FACTUAL AND PROCEDURAL HISTORY

The facts surrounding Littlejohn's crimes and subsequent conviction can be found
in State v. Littlejohn, 298 Kan. 632, 316 P.3d 136 (2014) (Littlejohn I), the Kansas
Supreme Court's opinion relating to Littlejohn's direct appeal. Essentially, Littlejohn was
convicted of felony murder, aggravated robbery, aggravated kidnapping, and aggravated
assault due to his actions in a botched robbery. As for the facts necessary to review this
claim, they are set out in Littlejohn III.

Although the district court found that Littlejohn was competent to stand trial, there
was evidence that Littlejohn was mentally retarded. Littlejohn had his IQ tested in 2006,
and the associated report indicated that Littlejohn had an IQ of 49, which is less than the
0.1 percentile and is in the "moderate mental retardation range." Littlejohn III, 310 Kan.
at 440. The 2006 report also referred to an IQ test Littlejohn took in 1997, when he was 7
years old. The 1997 report is not in the record but apparently Littlejohn's IQ level was
100 at the time.

Littlejohn's mental abilities were tested while he was in custody. Dr. Mitchell
Flesher, a psychologist, testified as an expert for Littlejohn at a suppression hearing.
According to Dr. Flesher, Littlejohn "read at a third grade level, spelled at a fourth grade
level, and displayed fourth grade level math skills." Littlejohn III, 310 Kan. at 441. Each
of the scores were in the first or second percentile. Littlejohn's full scale IQ was 71,
which is technically higher than the threshold IQ of 70 to be considered mentally
retarded. But Dr. Flesher diagnosed Littlejohn as mentally retarded and explained his
reasons for doing so.

At trial, Littlejohn's counsel did not raise a mental defect defense nor did counsel
request any jury instructions relative to Littlejohn's mental retardation. Instead, counsel
focused on inconsistencies in the evidence and attempted to portray Littlejohn as a
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victim, as opposed to a participant, in the crimes. He raised a compulsion defense but did
not link Littlejohn's diminished intellectual capacity to the defense. His defense was
unsuccessful, and Littlejohn was convicted. His convictions were affirmed on direct
appeal, and the mandate issued February 10, 2014. Littlejohn III, 310 Kan. at 441.

Littlejohn filed a K.S.A. 60-1507 motion in June 2014, but it was denied because
the claims were conclusory. Littlejohn, with the assistance of appointed counsel, appealed
the denial in October 2014, but he voluntarily withdrew his appeal a couple of months
later. The first K.S.A. 60-1507 motion and the orders relating to it are not in the record
but the facts surrounding it are not in dispute. According to the order denying his current
motion, Littlejohn argued that his trial counsel was ineffective in his first K.S.A. 60-1507
motion, although we do not know on what basis.

Littlejohn filed his second 60-1507 motion in January 2015. Littlejohn was
represented in this appeal by the same law firm that represented him on appeal in his first
K.S.A. 60-1507 motion. Littlejohn's motion raised several arguments, including an
ineffective assistance of counsel claim for his trial counsel's failure to utilize a mental
defect defense. The district court denied the motion as successive.

Littlejohn appealed the denial, arguing the district court erred in dismissing the
motion as successive because he demonstrated exceptional circumstances that would
permit a second motion. This court reversed the dismissal and remanded for a hearing on
whether trial counsel was ineffective for failing to investigate Littlejohn's mental defect
defense. Littlejohn v. State, No. 115,904, 2017 WL 2833312, at *10 (Kan. App. 2017)
(unpublished opinion) (Littlejohn II).

The Kansas Supreme Court reversed this court's decision and remanded the case to
us to apply the "correct" legal standard. Littlejohn III, 310 Kan. at 446. The Supreme
Court referred us to a case—decided after we filed our opinion in this case—which set
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out the proper method of review—Nguyen v. State, 309 Kan. 96, 431 P.3d 862 (2018).
310 Kan. at 443-45.

Our determination must be focused on whether "Littlejohn had presented
exceptional circumstances to justify reaching the merits of the motion, factoring in
whether justice would be served by doing so." Littlejohn III, 310 Kan. at 446. The
Supreme Court explained:

"[T]he merit of a movant's claims will factor into the calculus of whether a movant has
presented exceptional circumstances to avoid dismissal of a successive motion. But the
presentation of any colorable claim is not the determinative factor on whether a
successive motion gets an evidentiary hearing on the merits." Littlejohn III, 310 Kan. at
445-46.

Given the instructions from our Supreme Court, we begin our analysis anew with
the guidance provided by the Supreme Court in Nguyen and Littlejohn III firmly in mind
and a recognition that the existence of a colorable claim is not a determinative factor.

ANALYSIS

We begin by noting that most of the claims Littlejohn raised in his present K.S.A.
60-1507 motion could have been raised on direct appeal. But some of his claims included
arguments that his trial counsel was ineffective. In Littlejohn II, we found that only two
of his claims merit further review—that his counsel was ineffective for failing to use
Littlejohn's mental defect as a defense and that his counsel was ineffective for failing to
request a jury instruction on mental defect. We stand on that position and incorporate
Littlejohn II as to the efficacy of the other claims made by Littlejohn. Because the district
court summarily denied Littlejohn's K.S.A. 60-1507 motion, our review is de novo.
Littlejohn III, 310 Kan. at 443. Littlejohn has the burden to show how reaching the merits
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of his successive motion would serve justice. See State v. Roberts, 310 Kan. 5, 14, 444
P.3d 982 (2019).

So we turn to the requirements of the statute, the caselaw, and the rule regarding
successive K.S.A. 60-1507 motions.

1. The Statute. K.S.A. 2018 Supp. 60-1507(c).
"The sentencing court shall not be required to entertain a second or successive
motion for similar relief on behalf of the same prisoner."

2. The Caselaw. Over 40 years of caselaw by the Kansas Supreme Court has held
that there are exceptions to this rule but only if "the errors affect constitutional
rights and there are exceptional circumstances which justify entertaining a
second or successive motion." Dunlap v. State, 221 Kan. 268, 270, 559 P.2d
788 (1977).
a. Exceptional circumstances are unusual events or intervening changes in
the law that prevented the defendant from raising the issue in a
preceding K.S.A. 60-1507 motion. Whether justice would be served by
reaching the merits of the subsequent motion is an important
consideration. Nguyen, 309 Kan. at 109, 111.
b. Whether justice would be served by reaching the merits of a successive
motion is part of the statutorily driven analysis of whether exceptional
circumstances exist. Littlejohn III, 310 Kan. at 444-45.
To that end the Kansas Supreme Court has drafted rules to govern the
procedures in these cases. Supreme Court Rule 183 (2019 Kan. S. Ct. R. 228)
explains and implements the procedure to be followed under K.S.A. 60-1507.
Nguyen, 309 Kan. at 108.

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3. The Supreme Court Rule. Supreme Court Rule 183(d) (2019 Kan. S. Ct. R.
230).
"A sentencing court may not consider a second or successive motion for relief
by the same movant when:
(1) the ground for relief was determined adversely to the movant on a
prior motion;
(2) the prior determination was on the merits; and
(3) justice would not be served by reaching the merits of the subsequent
motion."

We next apply the statute, caselaw, and rule to the facts of this case.

First, it is undisputed that there has been no intervening change in the law that
would have prevented Littlejohn from raising his claims either on direct appeal or in his
first K.S.A. 60-1507 motion.

Second, we cite our holding from Littlejohn II regarding the first two requirements
under Rule 183(d):

"The first part of the successive motion rule bars Littlejohn's claims if the ground
for relief was determined adversely to him in his prior motion. Supreme Court Rule
183(d)(1). The district court denied the ineffective assistance of counsel claims raised in
Littlejohn's first motion, so that part of the test is satisfied. The second part of the rule
bars Littlejohn's claims if the prior determination was on the merits. Supreme Court Rule
183(d)(2). The district court dismissed his first motion on the grounds that the claims
were conclusory. While the district court did not get into the substance of the motion, the
ruling was on the merits insofar as the case was not dismissed pursuant to some
procedural bar. The final part of the rule bars Littlejohn's claim if 'justice would not be
served by reaching the merits of the subsequent motion.' Supreme Court Rule 183(d)(3)
(2017 Kan. S. Ct. R. 223). Littlejohn argues that justice would be served by considering
his claims." Littlejohn II, 2017 WL 2833312, at *5.
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Third, as to the last factor, whether justice would be served by reaching the
merits—Nguyen also provides guidance. In fact, the Nguyen court quoted with approval
from our now overruled decision in Littlejohn II:

"Accordingly, we should 'not "justify relentless, unyielding, and unremitting application
of the successive motion rule when [a] sense of justice require[s] that a colorable and
actionable claim be heard on its merits.'" Littlejohn v. State, No. 115,904, 2017 WL
2833312, at *6 (Kan. App. 2017) (unpublished opinion) (quoting Saleem v. State, No.
94,945, 2006 WL 3353769, at *13 [Kan. App. 2006] [unpublished opinion]). After all,
inscribed on the wall of the atrium in the Kansas Judicial Center are the following words:
"Within These Walls the Balance of Justice Weighs Equal." 309 Kan. at 111.

In support of his claims, Littlejohn asserts that his mental retardation would negate
the intent elements of the crimes of which he was convicted. Littlejohn II, 2017 WL
2833312, at *7. Although the district court found that Littlejohn did not argue any
exceptional circumstances to overcome the procedural bar of successiveness, Littlejohn
did assert in his motion that his attorney's ineffectiveness rises to the level of an
exceptional circumstance. He supported his claim with attachments which include his
psychological evaluation and diagnosis. So on appeal, we look not at the merits of his
claim but at whether his claim establishes exceptional circumstances to evade a dismissal
due to successiveness and justify an evidentiary hearing on his claim.

We find several factors support hearing this claim even though it is successive.

First, we note that in Nguyen the court found that the fact Nguyen was Vietnamese
and had little grasp of the English language was a factor to be considered in whether
exceptional circumstances existed. 309 Kan. 109-10. Here, according to the record,
Littlejohn has a low IQ, to the extent he could be classified as borderline mentally
retarded. His low IQ, like Nguyen's limited understanding of English, would limit
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Littlejohn's ability to read the opinions issued in his case and understand the case or
statutory laws and make written arguments to support his case.

Second, the Nguyen court noted that both Nguyen's counsel on direct appeal and
on his prior K.S.A. 60-1507 motion failed to raise a multiplicity argument that was
successfully raised by his codefendants. Being a nonnative English speaker, having no
access to an interpreter, and being assigned dilatory if not incompetent counsel who
failed to raise a meritorious issue, was deemed exceptional to most persons. 309 Kan.
110. Like Nguyen, Littlejohn's limited intellectual capacity coupled with appellate and
60-1507 counsel who for some unknowable reason did not recognize that his low IQ
would be a valid issue when charged with a specific intent crime, would appear
exceptional to most people.

Third, although Littlejohn raised an ineffective counsel claim in his first motion,
we do not know how he claimed his counsel was ineffective and whether he made such a
claim regarding both trial and appellate counsel or just trial counsel. The motion is not
contained in the record on appeal. We find it noteworthy that the same attorney who
represents Littlejohn on this motion represented him in withdrawing his prior motion and
also represented his codefendant in this case. It is unclear why counsel was not conflicted
out of both 60-1507 cases. Justice would be served by allowing Littlejohn to pursue his
ineffective assistance of counsel claims with conflict-free counsel.

Fourth, in support of his argument, Littlejohn attached a psychological evaluation
report to his K.S.A. 60-1507 motion. The evaluation was completed when Littlejohn was
16 years old—2 years before the events leading to his convictions. The report states that
Littlejohn had a Full Scale IQ of 49, which is considered moderate mental retardation.
The report concluded that Littlejohn "has had significant intellectual and academic
difficulties" and that he "tests out lower intellectually than would be implied by his
conversation."
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Kansas allows a defendant to put on evidence that would show the defendant was
unable to form the mens rea required for the charged crime. "It shall be a defense to a
prosecution under any statute that the defendant, as a result of mental disease or defect,
lacked the culpable mental state required as an element of the crime charged. Mental
disease or defect is not otherwise a defense." K.S.A. 2018 Supp. 21-5209. "If defense
counsel had properly investigated this issue, and if that investigation had revealed
evidence to support a valid mental capacity defense, then counsel's failure to conduct a
proper investigation would have been ineffective assistance of counsel." Beckford v.
State, No. 108,693, 2013 WL 5870047, at *4 (Kan. App. 2013) (unpublished opinion)
Moreover, as we stated in Littlejohn II:

"Littlejohn's counsel at the trial, Quentin Pittman, did not present evidence of
Littlejohn's mental capacity to the jury. Pittman's strategy at trial was to focus on
inconsistencies in the evidence and to argue that Littlejohn was a victim, not a
perpetrator, of the crimes committed. However, information on Littlejohn's mental
capacity was presented before his trial. Before trial, the district court ordered Littlejohn to
undergo a competency evaluation. At that time, Littlejohn was represented by Kevin
Loeffler. The competency evaluation report stated: '[P]lease note it may be helpful to
have IQ testing completed on Mr. Littlejohn to better understand his level of intellectual
functioning.' The report said that despite the fact that Littlejohn's 'most recent IQ testing
indicates he is mentally retarded,' he was competent to stand trial. Loeffler disagreed that
Littlejohn was competent to stand trial, noting that the report 'says he's competent, but
then it qualifies that with that he's competent if he's able to develop a rapport and . . .
have trust in his attorney.' Loeffler did not believe that Littlejohn trusted him. Loeffler
asked the court to undergo further competency evaluation and 'get an IQ evaluation at the
same time.' The district court did not directly address Loeffler's requests, but found that
Littlejohn was competent to stand trial based on the report.

"Several months later, at a pretrial motions hearing, the subject of Littlejohn's
mental capacity was raised again. At that time, Pittman was representing Littlejohn. One
of Littlejohn's prior attorneys had filed a motion to suppress statements that Littlejohn
made to the police on the basis that Littlejohn had not knowingly or intelligently waived
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his Miranda rights. Pittman called a psychologist, Dr. Mitchell Flesher, as a witness to
present evidence on Littlejohn's mental condition. Dr. Flesher testified that Littlejohn's
reading skills were at a third grade level, which is in the first percentile of his age group.
Dr. Flesher explained that testing in the first percentile means that in a group of 100
people in the same age category as Littlejohn, 'he would be basically the lowest one or
two scores in that group . . . .' Littlejohn performed at a fourth grade level in spelling and
arithmetic. Dr. Flesher tested Littlejohn's Full Scale IQ, which is an overall IQ score, at
71. This score is in the third percentile, meaning that 'it's in the lower 1, 2, 3 or 4 among
. . . a hundred people that are administered that test in that age range.' Dr. Flesher
concluded that 'someone who scores a 71 may be categorized as mentally retarded, even
though the formal range for that is considered below 70,' because the tests leave room for
error of measurement." Littlejohn II, 2017 WL 2833312 at *8.

Here, while Littlejohn's previous attorneys recognized the importance of his
mental capacity in the overall scheme of his admissions and culpability, his trial counsel
did not raise the issue as a defense to the specific intent necessary to commit the crimes
for which he was charged nor to further bolster his claim that Littlejohn was a victim who
was compelled to participate in the crime through compulsion. He did not mention
Littlejohn's low IQ at all during the trial, including opening and closing statements.

Littlejohn was 18 years old when the senseless and horrific murder for which he
was convicted occurred. He was sentenced to life in prison plus 277 months. With a
diagnosis of mental retardation, charges based solely on an aiding and abetting theory,
and a defense of compulsion we believe justice would be served by an evidentiary
hearing to determine whether Littlejohn's trial counsel's performance was ineffective and
whether Littlejohn was prejudiced by it. See Breedlove v. State, 310 Kan. 56, Syl. ¶ 3,
445 P.3d 1101 (2019) ("To prevail on a claim of ineffective assistance of counsel, a
defendant must first establish that counsel's performance was deficient, and, if so, further
establish prejudice, i.e., there was a reasonable probability that the jury would have
reached a different result but for the deficient performance."). Littlejohn has met his
burden.
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Accordingly, we find there are exceptional circumstances shown to allow
Littlejohn to bring a successive K.S.A. 60-1507 motion. Therefore, we reverse and
remand for a hearing on the issue of whether trial, appellate, and 60-1507 counsel were
ineffective for failing to investigate or present Littlejohn's mental capacity defense. In
doing so, we specifically express no opinion on the merits of such contentions.

Reversed and remanded with directions.