Marks v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 115,444

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RICKEY B. MARKS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed June 9, 2017.
Affirmed.

Steven D. Alexander, of Kanas City, for appellant, and Rickey B. Marks, appellant pro se.

Jennifer S. Tatum, assistant district attorney, Mark Dupree, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and MCANANY, JJ.

Per Curiam: In 2008, Rickey B. Marks was convicted of first-degree
premeditated murder for stabbing his wife to death. Marks' conviction was affirmed on
appeal by our Supreme Court in State v. Marks, 297 Kan. 131, 298 P.3d 1102 (2013). In
2014, Marks moved under K.S.A. 60-1507, raising nine specific issues, including claims
of ineffective assistance of counsel; abuse of trial court discretion; ineffective assistance
of appellate counsel; and cumulative error. The trial court held a full evidentiary hearing
on Marks' motion which rejected Marks' arguments and denied his K.S.A. 60-1507
motion. Marks appeals, raising claims of ineffective assistance of counsel and abuse of
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trial court discretion. For reasons set forth below, we reject Marks' arguments.
Accordingly, we affirm the trial court's denial of Marks' K.S.A. 60-1507 motion.

Underlying Criminal Conviction

"On October 11, 2008, Rozeta Marks was stabbed eight times in her chest, arm,
and back while driving to a store with her husband, Rickey Marks . . . Marks was
ultimately charged with and convicted of first-degree premeditated murder." State v.
Marks, 297 Kan. 131, 132-33, 298 P.3d 1102 (2013). Marks was sentenced to life in
prison with a minimum mandatory sentence of 25 years. 297 Kan. at 134.

On direct appeal, Marks argued prosecutorial misconduct; challenged the
admissibility of particular evidence not relevant to this appeal; and argued that the State
failed to comply with statutes mandating that it provide Marks with personal copies of
discovery. Our Supreme Court held that the prosecutor engaged in misconduct, but the
misconduct did not amount to reversible error. The court also held that Marks was
statutorily entitled to the discovery but found that the error was harmless. Accordingly,
Marks' conviction and sentence were affirmed by our Supreme Court. See Marks, 297
Kan. at 150-51.

K.S.A. 60-1507 Motion

Later, Marks filed a K.S.A. 60-1507 motion in Wyandotte County District Court.
Marks' motion was based on claims of unconstitutional jury instructions; ineffective
assistance of trial counsel; and ineffective assistance of appellate counsel. Marks asserted
that police reports or hospital records or both existed that would show that his victim had
used a knife in a violent way in the 1990s and that his trial counsel was ineffective in
failing to investigate the reports or records in support of a self-defense theory of defense.
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Marks also submitted a memorandum in support of his motion. Marks listed nine
issues in his memorandum—(1) ineffective assistance of trial counsel; (2) ineffective
assistance of trial counsel for failing to object to the trial court's failure to clarify the
State's closing argument on request from the jury; (3) ineffective assistance of counsel for
failing to hire an expert to testify to Marks' frame of mind; (4) ineffective assistance of
appellate counsel for failing to preserve and present certain issues; (5) prosecutorial
misconduct; (6) trial court error based on failing to appoint Marks substitute trial counsel;
(7) ineffective assistance of trial counsel based on the conflict alleged in Marks' motion
to substitute counsel; (8) trial court error in allowing the jury to rely on inadequate
theories of law; and (9) cumulative error depriving Marks of the right to a fair trial.

The trial court appointed counsel to represent Marks in his K.S.A. 60-1507
motion. Later, the trial court held a full evidentiary hearing on Marks' motion. Marks'
counsel argued only two of the nine issues raised in his motion. Marks' counsel
determined that only those two issues had merit. Still, Marks requested that all nine issues
be considered. Accordingly, the trial court addressed all nine issues from Marks'
memorandum in support of his motion. In denying Marks' motion, the trial court stated:

"The Court, upon a review of the issues listed in the pro se Memorandum, the
testimony and arguments by trial counsel and counsel during the argument of this habeas
corpus motion, exhibits offered during the motion and transcripts of the trial and pretrial
motions, finds that this Motion should be denied. Marks has failed to establish that either
trial counsel or appellate counsel were ineffective and failed to establish any trial court
errors sufficient to require a new trial."

K.S.A. 60-1507 Standard of Review

When a criminal defendant files a K.S.A. 60-1507 motion, a trial court has three
options:

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"'(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
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).

When the trial court holds a full evidentiary hearing on the motion, the court must
issue findings of fact and conclusions of law for all issues presented. Supreme Court Rule
183(j) (2017 Kan. S. Ct. R. 222). This court reviews the trial court's findings of fact using
a substantial competent evidence standard and determines whether they are sufficient to
support the trial court's conclusions of law. This court reviews the trial court's
conclusions of law de novo. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).

To show that he or she is entitled to relief, a K.S.A. 60-1507 movant must
establish by a preponderance of the evidence that: (1) "the judgment was rendered
without jurisdiction"; or (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. 60-1507(b); Supreme Court Rule 183(g).

Supreme Court Rule 183(c)(3) (2017 Kan. S. Ct. R. 223) provides:

"A proceeding under K.S.A. 60-1507 ordinarily may not be used as a substitute
for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere
trial errors must be corrected by direct appeal, but trial errors affecting constitutional
rights may be raised even though the error could have been raised on appeal, provided
exceptional circumstances excuse the failure to appeal."

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Our Supreme Court has defined "exceptional circumstances" to include "'"'unusual events
or intervening changes in the law which prevent a movant from reasonably being able to
raise all of the trial errors in the first post-conviction proceeding.'"'" State v. Mitchell, 297
Kan. 118, 123, 298 P.3d 349 (2013). Ineffective assistance of counsel can amount to
exceptional circumstances. Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212
(2009).

Are Some Issues Raised in Marks' K.S.A. 60-1507 Motion Not Properly Before This
Court?

We must determine which issues from Marks' K.S.A. 60-1507 motion are properly
before this court. Marks identified nine issues in his K.S.A. 60-1507 motion. At the
evidentiary hearing, Marks' counsel argued only two of those issues. Nevertheless, Marks
requested that all nine issues be preserved for appeal. As a result, the trial court's order
addresses each issue raised in Marks' motion. The trial court did so because the record
and the testimony from the evidentiary hearing provided a sufficient basis to decide the
issues that were not argued.

The trial court's order identified the following nine issues: (1) ineffective
assistance of trial counsel relating to pretrial investigation methods; lack of presentation
of a voluntary intoxication defense; failure to adequately argue at closing; lack of
adequate voir dire and failure to make a Batson challenge; and lack of communication
with Marks which should have resulted in the trial court appointing new counsel; (2)
ineffective assistance of counsel relating to a question the jury asked the trial judge; (3)
ineffective assistance of counsel relating to the failure to hire an expert to testify on
Marks' state of mind—an argument previously advanced under Issue 1; (4) ineffective
assistance of appellate counsel for failing to raise certain arguments on appeal; (5)
prosecutorial misconduct; (6) trial court error based on failing to appoint new counsel—
an argument previously advanced under Issue 1; (7) ineffective assistance of counsel for
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failing to hire an expert to testify on Marks' state of mind—an argument previously
advanced under Issue 1; (8) argument concerning trial court errors and ineffective
assistance of counsel which have been previously advanced in the motion; and (9)
cumulative error which deprived Marks of his right to a fair trial. It is readily apparent
from the trial court's order that each and every one of Marks' arguments was considered
by the trial court.

But when we compare the trial court's order with Marks' and his appellate
counsel's briefs on appeal, we learn that some new arguments that were not addressed in
the trial court's order are now being presented. In fact, very little of Marks' brief
addresses the same factual assertions supporting the arguments found in his actual K.S.A.
60-1507 motion or in his memorandum in support of his motion, nor were these factual
assertions argued at the evidentiary hearing. Instead, Marks focuses the bulk of his brief
arguing facts relating to evidence that he contends was obtained illegally during his initial
criminal trial.

Highly summarized, the new arguments are based on the following factual
assertions. Marks stabbed his wife in Kansas City, Kansas. After the murder, Marks went
to a restaurant in Kansas City, Missouri. An employee of the restaurant called the Kansas
City, Missouri Police Department (KCMOPD) because Marks was extremely intoxicated.
When the police arrived, they saw that Marks had injuries from falling in the parking lot
of the restaurant. The KCMOPD took Marks into custody and had him transported to
North Kansas City Hospital, in Missouri, for treatment. While at the hospital, a detective
from the Kansas City, Kansas Police Department (KCKPD) retrieved Marks' clothing and
cell phone without a warrant. The KCKPD detective did not view the contents of the cell
phone until a warrant for the phone's contents was issued.
When the cell phone was introduced at the jury trial, Marks' trial counsel, Charles
Lamb, acknowledged that maybe he should have filed a suppression motion on the
phone. At this point, we note that Lamb was Marks' third attorney, meaning he had not
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been Marks' attorney from the start of the case. In fact, when the cell phone was
introduced at trial, it was the first time Lamb had heard about how the phone was
obtained. Lamb did not take issue with the clothing, because it was in plain view of the
KCKPD at the hospital. When Lamb voiced his concern over the origins of the cell phone
as evidence, the trial judge excused the jury so that a discussion could be had. After
hearing brief arguments, the trial judge and Lamb had the following exchange:

"THE COURT: But Mr. Marks was under arrest, he was under arrest for a homicide,
[KCMOPD] knew what the homicide was, they knew that there had been a stabbing. It
was apparent that there was bloody clothing, that he had bloody clothing or at least a
bloody shirt on at that point in time. He was under arrest. When somebody's under arrest,
they're searched, all their property's taken into custody and that's essentially how
[KCKPD] came into possession.
"MR LAMB: It's just an interesting issue, it's a unique situation. I just want to preserve
the record on that
"THE COURT: Mr. Lamb, if you're objecting that there was an illegal search and seizure,
the court's going to rule against you.
"MR. LAMB: Thank you, Judge.
"THE COURT: And the court's going to rule that it came into [KCKPD] possession as a
result of a lawful arrest."

Marks now asserts that the cell phone and clothing were unlawfully obtained by
the KCKPD. As a result, he argues that his trial counsel was ineffective for failing to
move to suppress the evidence and that the prosecutor engaged in prosecutorial
misconduct because she knowingly used the unlawfully obtained evidence. Similarly,
Marks' appellate counsel bases the bulk of his arguments on this new set of factual
circumstances. Marks' appellate counsel argues that trial counsel was ineffective for three
reasons: (1) he failed to properly investigate how the police obtained Marks' cell phone
and clothes; (2) he failed to file a motion to suppress the illegal search and seizure of the
cell phone and clothes; and (3) he failed to object to the illegally obtained cell phone and
clothes being admitted into evidence. These are not the only arguments advanced by
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Marks and his appellate counsel, but these are the arguments raised that are related to the
newly asserted facts.

It is well-accepted that issues not raised before the trial court cannot generally be
raised for the first time on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987
(2014). Additionally, we know that absent "exceptional circumstances," mere trial errors
must be corrected by direct appeal. See Supreme Court Rule 183(c)(3) (2017 Kan. S. Ct.
R. 223).

Here, we can say with confidence that the arguments based on the new set of
factual assertions, while cloaked in the same framework as Marks' K.S.A. 60-1507
motion, are being raised for the first time on appeal. Also, we can say with confidence
that neither Marks nor his appellate counsel acknowledge this fact or attempt to argue
exceptional circumstances. The State, on the other hand, points out that the "issue is not
preserved for appeal as it was not raised in the Defendant's written K.S.A. 60-1507
Motion, nor at the evidentiary hearing."

Based on those well-accepted rules, we determine that many of the arguments
raised in Marks' and his appellate counsel's briefs are not properly before this court as
they were not raised in Marks' K.S.A. 60-1507 motion nor were they raised at the trial
court's evidentiary hearing on the same. Additionally, Marks has done nothing to show
exceptional circumstances excusing his failure to bring the claims in his direct appeal.
Accordingly, we are precluded from hearing the arguments pertaining to the contested
evidence—the cell phone and clothing.

Moreover, the trial court clearly ruled that the evidence was obtained as the result
of a search incident to a lawful arrest—a well-recognized exception to the warrant
requirement. See State v. Carlton, 297 Kan. 642, 645, 304 P.3d 323 (2013) (recognizing a
search incident to a lawful arrest as an exception to the warrant requirement).
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Furthermore, the State would have had a strong argument under the doctrine of inevitable
discovery. "'The test under the inevitable discovery rule is that, if the prosecution
establishes by a preponderance of the evidence that the unlawfully obtained evidence
ultimately or inevitably would have been discovered by lawful means, the evidence is
admissible.' [Citation omitted.]" State v. Stowell, 286 Kan. 163, 166, 182 P.3d 1214
(2008). Here, in all likelihood, the cell phone and clothing would have been discovered
by the KCKPD, as they would have been kept by the KCMOPD because they were in
Marks' possession when he was arrested.

Assuming arguendo that we were not precluded from considering these arguments,
Marks was not prejudiced by the contested evidence: the cell phone and clothes. On
direct appeal, our Supreme Court rejected Marks' argument that cumulative error had
robbed him of his right to a fair trial, acknowledging that "[t]he test for cumulative error
is 'whether the totality of the circumstances substantially prejudiced the defendant and
denied the defendant a fair trial. No prejudicial error may be found upon this cumulative
effect rule, however, if the evidence is overwhelming against defendant.' [Citation
omitted.]' [Citations omitted.]" Marks, 297 Kan. at 150-51. The court concluded that
"[t]he identified errors do not overtake the strength of evidence against Marks. The
evidence of guilt was overwhelming based in significant part on his own statements to
[his wife], friends, and family." (Emphasis added.) 297 Kan. at 151.

As a result, only the arguments that have been properly preserved for appeal—
those that were both presented to the trial court in Marks' written motion or at the
evidentiary hearing and argued in the appellate briefs—will be addressed. They are the
following: whether the trial court should have granted (1) Marks' motion to substitute
counsel; (2) whether trial counsel's performance amounted to ineffective assistance of
counsel in failing to investigate the victim's past; and (3) whether trial counsel's
performance amounted to ineffective assistance of counsel in failing to present the
defense of voluntary intoxication.
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Issues Relating to Marks' Motion to Substitute Counsel

Marks originally filed his K.S.A. 60-1507 motion pro se. Then, Marks' appointed
counsel argued the motion at the evidentiary hearing. On appeal, Marks filed a pro se
brief. Additionally, Marks' appointed appellate counsel filed a brief to supplement Marks'
pro se brief. Consequently, we are faced with a scenario where it becomes difficult to
organize arguments in a way that makes sense across all briefs and the motion.
Nonetheless, two properly preserved issues can be discussed together under the umbrella
of Marks' motion to substitute counsel. These two issues are (1) whether the trial court
abused its discretion in denying Marks' motion to substitute counsel and (2) whether trial
counsel's performance amounted to ineffective assistance where Marks asserts that the
level of communication was not commensurate with the seriousness of the charge. These
issues both center on the amount of time that Marks' trial counsel spent with him in
preparation for trial. Accordingly, the issues can be discussed together.

On appeal, Marks argues that the trial court abused its discretion in denying his
request to substitute counsel. Additionally, Marks argues that his trial counsel, Lamb,
failed to adequately communicate with him, which resulted in ineffective assistance of
counsel. Specifically, Marks asserts that Lamb only visited him for a total of 4 hours and
35 minutes at the jail before trial. This assertion is also the basis for Marks' argument that
that the trial court abused its discretion in denying his motion to substitute counsel.

On July 1, 2009, Marks moved to substitute counsel alleging a complete
breakdown in communication between himself and Lamb. On July 8, 2009, the trial court
held a hearing on Marks' motion to substitute counsel. At the hearing, the State pointed
out that Lamb was Marks' third appointed attorney and that three trial dates had already
come and gone as a result of Marks obtaining new counsel. After the arguments, the trial
court determined that Marks' asserted conflict did not rise to the level of justifying
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substitute counsel. The trial judge told Marks that he had appointed Lamb to represent
Marks specifically because he believed Lamb would do a satisfactory job.

At the evidentiary hearing, Marks again raised the issue of whether he had
adequate communication with Lamb before trial. Lamb acknowledged that
"communication in the first 30 days [of his appointment] was not as much as Mr. Marks
would have liked." In fact, Marks had filed a complaint with the disciplinary
administrator regarding Lamb's level of communication during the early part of his
representation. Lamb explained that he was busy with two trials in the first 30 days that
he represented Marks, but after the first 30 days he spent a "great deal of time with Mr.
Marks." The trial court's order indicated that it agreed with and was adopting the State's
arguments from the hearing on Marks' motion to substitute counsel held July 8, 2009.
Thus, the trial court rejected Marks' arguments that the trial court abused its discretion in
denying his request to substitute counsel and that trial counsel's performance amounted to
ineffective assistance of counsel.

With that background information in mind, we turn to whether the trial court
abused its discretion in denying Marks' request to substitute counsel and whether Lamb
provided Marks with effective assistance of counsel.

Did the Trial Court Abuse Its Discretion in Denying Marks' Request to Substitute
Counsel?

Marks argues that the trial court erred in denying his motion to withdraw and
substitute counsel. We note that Marks did not raise this issue in his direct appeal after
his conviction. As was previously mentioned, absent exceptional circumstances, a K.S.A.
60-1507 motion cannot be used to correct mere trial errors not raised on direct appeal.
Supreme Court Rule 183(c)(3). As a threshold matter, we point out that Marks does not
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argue any exceptional circumstances excusing his failure to raise this issue on direct
appeal.

In his pro se brief, Marks presents the same argument from his K.S.A. 60-1507
motion—that "[t]he trial court abused [its] discretion by not granting Defendant a new
attorney when it became apparent that counsel was not taking a real interest in the
Defendant's case." Marks goes on to support his argument by referring to the newly
asserted factual situation previously discussed. Thus, as it pertains to his original
argument presented in the written motion—that the trial court abused its discretion in
denying his request to substitute counsel because there was a complete breakdown in
communication—there is little support in his brief. Marks' appellate counsel does not
advance any argument asserting that the trial court abused its discretion. Marks concludes
his argument on this issue by asserting that "[t]he Court violated the Petitioner's rights to
a fair trial by allowing Mr. Lamb to stay on the Petitioner's case!"

Marks' failure to argue exceptional circumstances notwithstanding, this court
reviews a trial court's refusal to appoint new counsel for an abuse of discretion. State v.
McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). A trial judge abuses his or her
discretion (1) when no reasonable person would take the view adopted by the trial court;
(2) when the judicial action is based on an error of law; or (3) when the judicial action is
based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

In determining whether the trial court abused its discretion, it is important to
understand what Marks was required to show to obtain new counsel. "To warrant the
appointment of new counsel, a defendant must show 'justifiable dissatisfaction' with his
or her appointed counsel. 'Justifiable dissatisfaction' may be demonstrated by showing a
conflict of interest, an irreconcilable conflict, or a complete breakdown in
communications between the defendant and his or her appointed attorney. [Citation
omitted.]" McGee, 280 Kan. at 894.
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The trial court relied on McGee and State v. Bryant, 285 Kan. 970, 179 P.3d 1122
(2008), in finding that "the dispute between Lamb and Marks did not rise to the level of a
conflict of interest or a breakdown in communication. [Marks] has not established an
abuse of discretion on the part of the trial court in denying the removal of Lamb after a
full and complete hearing."

In McGee, the defendant also moved for appointment of new counsel based on a
lack of communication. The trial court held a hearing on the defendant's motion. At the
hearing, trial counsel rebutted the defendant's claims. On appeal, our Supreme Court
noted that the defendant's arguments seemed to assume that trial counsel was not working
on the case unless he was with the defendant—an assumption not supported by the facts
of the case. Thus, the court found that the defendant had failed to meet his burden of
showing that the trial court abused its discretion. McGee, 280 Kan. at 894-96.

In Bryant, the defendant also moved pro se for change of counsel based primarily
on a lack of communication. The motion was heard at the preliminary hearing in the
defendant's case. At the preliminary hearing, trial counsel denied the allegations made in
the motion, and the trial court denied the motion. 285 Kan. at 987. The trial court reheard
the defendant's motion nearly 2 months later. The trial court once again denied the
motion because trial counsel had indicated to the court that she was willing to do her best
despite the defendant's complaints. 285 Kan. at 988-990. At sentencing, the defendant
once again asked for new counsel. The trial court denied the request, noting that the
defendant had failed to give any specific reason as to why trial counsel was not qualified
to continue her representation. 285 Kan. at 991. On appeal, our Supreme Court affirmed
the trial court's denial of the defendant's many requests to substitute counsel, holding that
it was untrue that no reasonable person would have agreed with the trial court. 285 Kan.
at 993.

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Here, we agree with the trial court's conclusion that Marks failed to show
dissatisfaction justifying new counsel. Like the defendant's claims in McGee, Marks
seems to assume that the only time Lamb was working on his case was when he was
visiting Marks. This is directly refuted by Lamb's testimony that he worked on the case at
his office and even in his home. Additionally, and similar to Bryant, aside from the basic
assertion that Lamb failed to adequately communicate, Marks failed to provide the court
with any specific reasons justifying substitution.

Moreover, Lamb's testimony at the original hearing on Marks' motion to substitute
counsel and his testimony at the evidentiary hearing on Marks' K.S.A. 60-1507 motion
both indicate that he was prepared for trial and willing to represent Marks despite Marks'
complaints. Furthermore, Lamb presented correspondence in the form of letters that show
that he and Marks were having meaningful communication leading up to the trial. The
letters reference specific pieces of evidence and discuss possible trial strategy. Thus, the
letters support the trial court's conclusion that the original trial court did not abuse its
discretion in denying Marks' request to substitute counsel.

In conclusion, and notwithstanding Marks' failure to argue exceptional
circumstances excusing his failure to directly appeal the issue, we hold that a reasonable
person would have taken the view of the trial court in denying Marks' motion to
substitute counsel. Thus, we hold that the trial court in Marks' criminal trial did not abuse
its discretion in denying Marks' motion to substitute counsel.

Did Trial Counsel's Performance Amount to Ineffective Assistance of Counsel Based on
the Alleged Lack of Communication?

This issue is inextricably tied to the previous issue as Marks asserts the same facts
in support his claim of ineffective assistance of counsel that were asserted previously.
Accordingly, the general facts previously discussed will not be presented again.
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When a defendant alleges a claim of ineffective assistance of counsel, the court is
faced with mixed questions of fact and law. When a trial court holds a full evidentiary
hearing on the claim, an appellate court must determine whether the trial court's findings
are supported by substantial competent evidence and whether the factual findings support
the court's legal conclusions; an appellate court then reviews the trial court's conclusions
of law de novo. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).

To be successful on a claim of ineffective assistance of counsel, a criminal
defendant must establish (1) that counsel's performance was deficient, and (2) that the
performance prejudiced the defendant, i.e., that there is a reasonable probability that but
for the deficient performance, the jury would have reached a different result. 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]).

On appeal, Marks relies on Aldrich v. State, No. 109,326, 2014 WL 1707579
(Kan. App. 2014) (unpublished opinion), (rev. denied 300 Kan. 1103) (2014), to show
that Lamb's lack of communication amounted to ineffective assistance of counsel. In
Aldrich, after much procedural struggle, the defendant was granted an evidentiary hearing
on his K.S.A. 60-1507 motion. After the hearing, the trial court held that the defendant's
trial counsel had not provided adequate representation, which affected the trial's outcome.
2014 WL 1707579, at *1. In making its finding, the trial court focused on the advice that
trial counsel had given the defendant and the lack of time trial counsel had spent
investigating the case before trial, which led to multiple trial errors. 2014 WL 1707579,
at *3. The State appealed the trial court's finding. On appeal, this court noted that the
record supported the trial court's finding that trial counsel had visited the defendant in jail
eight times for a total of 2.76 hours before trial. 2014 WL 1707579, at *7. But this court
also noted that "inadequate time spent preparing for trial must be combined with actual
errors that prejudiced the defense to constitute ineffective assistance of counsel." 2014
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WL 1707579, at *7 (citing State v. Cheatham, 296 Kan. 417, 433-34, 292 P.3d 318
[2013]). The court then recognized that the trial court had "attributed the trial errors that
occurred to the lack of time that [trial counsel] spent investigating the case." 2014 WL
1707579, at *7. Thus, the trial court's decision was affirmed on appeal. 2014 WL
1707579, at *16.

Here, the State argues that Aldrich is not persuasive because Marks has failed to
show actual trial errors that prejudiced his defense. We agree. Marks' arguments tend to
rely on the assertion that the 4.35 hours that Lamb spent visiting with Marks in the jail is
per se ineffective assistance of counsel as it is not commensurate with the seriousness of
the charge he was facing. But the record on appeal does not support the argument that
Lamb was ineffective. Instead, the testimony from the hearing on Marks' motion to
substitute counsel and the evidentiary hearing on Marks' K.S.A. 60-1507 motion shows
that Lamb put real thought and attention into presenting a defense on Marks' behalf,
despite any claim that he did not meet with Marks for an adequate period of time.
Furthermore, the 4.35 hours asserted as the time Lamb spent meeting with Marks in no
way indicates the true amount of preparation that Lamb put into representing Marks.

Additionally, the letters that were discussed in the previous section show that
Lamb was prepared to provide Marks with competent counsel. In fact, at the evidentiary
hearing on Marks' motion, Marks' counsel made the following remarks regarding Lamb's
performance:

"I don't see where—it did not appear to this counsel anyway that Mr. Lamb's
performance was in any way hindered or affected. It looked like he was very diligent,
made many, many, many objections on the record about the case and seemed to be very
on top of the issues that he addressed."

17

The preceding facts, paired with Marks' failure to point to real trial errors tied to
the alleged lack of time Lamb spent preparing, lead us to conclude that Lamb's assistance
was not ineffective. Marks' failure also shows that he did not meet his burden of proving
that Lamb's performance was deficient and that he was prejudiced by any such
deficiency.

Thus, the trial court's findings were supported by substantial competent evidence
and were sufficient to support its conclusion that Marks' ineffective assistance of counsel
claim based on the lack of time Lamb spent meeting with him or a breakdown in
communication was fatally flawed. Accordingly, Marks' argument fails.

Did Trial Counsel's Performance Amount to Ineffective Assistance of Counsel in Failing
to Investigate the Victim's Past?

Marks also claims ineffective assistance of counsel based on Lamb's failure to
investigate the victim's alleged violent history that would have supported a claim of self-
defense. Marks argues that Lamb had "a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary." In his
K.S.A. 60-1507 motion, Marks alleged that "[i]n the very first meeting with the court
appointed counsel . . . he was adamant in letting counsel know that he wanted an
investigator to do a background check on [the] victim that would have shown that she had
in [the] past used a knife in [an] act of violence."

The State argues that Marks' claim should be dismissed as a threshold matter
because he has failed to make more than conclusory contentions and the claim has no
evidentiary basis. The State also argues that even if we were to address the argument,
Marks cannot establish prejudice because he cannot show that the evidence of the
victim's past would have been admissible at trial.

18

Our Supreme Court has recognized that "'[c]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a heavy measure
of deference to counsel's judgments.'" State v. Orr, 262 Kan. 312, 327, 940 P.2d 42
(1997) (quoting Strickland, 466 U.S. at 691.

Despite Marks' assertion that he told Lamb that he needed to investigate the
victim's past, Lamb's testimony at the evidentiary hearing on Marks' K.S.A. 60-1507
motion indicates that he was not aware of any such issues. Lamb testified: "I don’t recall
that conversation. And I've looked in my notes and records and I have no indication in
my notes and records of that." Then, the following exchange occurred, with the State
asking questions and Lamb providing answers:

"Q. Had you known that, let's say Mr. Marks did tell you that, what do you think the
likelihood of having something like that admitted from the 1990's [sic] in a 2008 murder
trial would be?

"A. Well, I think it's not likely, but it depends on the facts and circumstances. But
had we known that that existed, I would have obtained the evidence and pursued it. But
since I didn't, I have to conclude that I had no idea about that.

"Q. And as you sit here today, you don't know if there is such evidence that exists?

"A. I do not."

First and foremost, based on the record on appeal we cannot say for sure whether
Lamb had knowledge of the victim's alleged history of violence. Furthermore, we cannot
say for sure whether such history of violence actually exists. Thus, if Marks has not
shown that Lamb had knowledge of the victim's past, we cannot say that Lamb betrayed
his duty to make a reasonable investigation into the victim's past. Put another way, Lamb
19

cannot be said to have failed to reasonably investigate something that he had no
knowledge of to begin with. Moreover, we certainly cannot say that Lamb failed to
reasonably investigate something that we cannot reasonably say exists. As a threshold
matter, then, we cannot say that Lamb's performance was deficient.

But even if we assume that the evidence exists and that Lamb was deficient, the
State argues that "[i]t is pure speculation whether or not such a prior occurrence would
have even been relevant pursuant to case law that tends to limit the admissibility of
violent acts remote in time." "''Determining whether evidence is too remote to be
admissible rests within the sound discretion of the trial court. Mere lapse of time alone is
not sufficient to deprive evidence of its probative value, but goes to the weight of the
evidence to be considered by the jury.' [Citations omitted.]'" State v. Walters, 284 Kan. 1,
14, 159 P.3d 174 (2007).

The State specifically points to State v. Houston, 289 Kan. 252, 262, 213 P.3d 728
(2009), to show that even if the victim had committed some violent acts in the past, those
acts would most likely not be admissible. In Houston, the defendant was charged with
murder and asserted that the killing had been done in self-defense. To support his claim,
the defendant sought to have evidence admitted that would show that the victim had hit
his son with a rock prior to the killing. On appeal our Supreme Court found that the trial
court was well within its discretion to exclude such evidence because the incident from
the proposed evidence had occurred 2 years before the killing. Houston, 289 Kan. at 262.

Here, we are not dealing with evidence that is 1 year old, or even 2 years old.
Instead, we are dealing with alleged evidence from the 1990s, which means it would have
been at least 9 and as many as 18 years old at the time of trial. It is also worth mentioning
that when Marks was questioned about the victim's history at the evidentiary hearing on
his K.S.A. 60-1507 motion, he acknowledged that she had never been violent with him
before. The remoteness in time of the evidence together with the fact that the victim had
20

not been violent with Marks during their relationship tends to show that the evidence
would not have been found relevant.

We point out that we do not even know whether such evidence exists. Marks has
done little more than make conclusory statements in referencing police and hospital
reports from the 1990s. Thus, even if Lamb's performance was deficient in failing to
investigate the victim's past, Marks has not shown prejudice because he has not
established that such evidence would have been admissible.

Finally, we acknowledge that Lamb did procure a self-defense instruction at
Marks' trial. Additionally, Marks took the stand at trial and was able to lay out his claim
of self-defense by telling his version of events to the jury. The jury rejected Marks' claim
of self-defense. At this point, we note that Marks was facing what our Supreme Court
described as overwhelming evidence of guilt at trial. This means that even with some
evidence of the victim's alleged violent past, he was facing an uphill battle. Thus, it is
clear that Marks has failed to show that he was prejudiced by Lamb's failure to
investigate the victim's past.

The trial court was guided on the rule from Holt v. State, 290 Kan. 491, 496, 232
P.3d 848 (2010): "that mere conclusory allegations without an evidentiary basis will not
support an ineffective assistance of counsel claim." This proves a particularly relevant
rule here where Marks does little more than claim that some acts in the victim's past from
the 1990s should have been investigated by Lamb. Marks has failed to show that Lamb's
performance was deficient. Moreover, even if Lamb's performance was deficient, Marks
has failed to show that he was prejudiced by it. Consequently, the trial court's findings
were supported by substantial competent evidence and were sufficient to support its
conclusion that Lamb was not ineffective based on the failure to perform an adequate
pretrial investigation of the victim's past.

21

Did Trial Counsel's Performance Amount to Ineffective Assistance of Counsel in Failing
to Present the Defense of Voluntary Intoxication?

Finally, Marks argues another claim of ineffective assistance of counsel asserting
that Lamb was ineffective in failing to adequately present the defense of voluntary
intoxication.

At the evidentiary hearing, Marks' counsel acknowledged that Lamb was able to
procure a voluntary intoxication jury instruction. Marks' counsel also acknowledged that
one of the previously discussed correspondence letters that Lamb wrote to Marks
indicates that Lamb was contemplating the voluntary intoxication defense before trial.
Additionally, the following exchange occurred at the evidentiary hearing with Marks'
1507 counsel asking questions and Lamb answering:

"A. We had witnesses who were going to testify, especially from the sandwich shop
. . . that [Marks] was very intoxicated. We had other witnesses talking about the
intoxication after the event. My concern was trying to get evidence in of intoxication
prior to the stabbing itself. I don't think there was any dispute that he was very
intoxicated afterwards . . . I mean the jury understood he was very intoxicated at that
point.

"Q. Let me rephrase the question this way. If, based on your knowledge and
experience as a criminal defense attorney, if you had felt that there was evidence to be
presented about intoxication prior to the stabbing, would you have brought that evidence
out to the court?

"A. If we had any viable evidence of that prior to the stabbing, we would have
brought that evidence in."

After the evidentiary hearing, the trial court rejected Marks' argument that Lamb
was ineffective relating to the voluntary intoxication defense. The trial court's order,
22

though lengthy, provides us with a thorough summary of the facts surrounding the
defense and why Lamb was not able to fully pursue it. For example, the trial court's order
stated:

"Counsel . . . indicated that he was aware of Marks' intoxication at the time of his
subsequent arrest and had discussed this issue of intoxication at the time of the crime
with potential witnesses. When he did not receive a response favorable to his client,
counsel did not proceed with extensive questioning at trial. He did provide sufficient
evidence on that point that the court granted his request for voluntary intoxication
instruction. . . .
"The second prong of the pro se memorandum is that counsel did not adequately
present the voluntary intoxication defense. Again, this argument is not borne out by the
testimony of trial counsel and the instruction that was given to the jury. Counsel was
aware of the toxicology report made when the Plaintiff was arrested after the crime and
asked sufficient questions to secure the intoxication instruction. This defense was
presented by counsel but was not believed by the jury. (Emphasis added.)
. . . .
"Issue No. 3 alleges that trial counsel was ineffective for failing to hire an expert
to testify as to his frame of mind. It appears that this issue is merely a repeat of earlier
arguments regarding counsel's efforts. Marks desired to have the jury consider the effect
that alcohol and/or drugs had on his actions at the time of the stabbing. He now claims
that counsel should have secured an expert to assist in this contention.
"As trial counsel explained at the habeas corpus hearing, he was aware of the
reports that Marks was very intoxicated at the time of his arrest. That time frame was
clearly after the stabbing. Counsel also advised that during his investigation in this case
he asked witnesses about the condition of [Marks] at the time of the crime. Based on the
answers he received from these witnesses he felt that he could not fully proceed with that
defense. Counsel was eventually able to secure enough testimony to request and receive
an instruction on voluntary intoxication. Trial counsel was able to present the type of
evidence that Marks is requesting."

"Judicial scrutiny of counsel's performance must be highly deferential, and a fair
assessment of attorney performance requires that every effort be made to eliminate the
23

distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time." Bledsoe v.
State, 283 Kan. 81, 90, 150 P.3d 868 (2007). Furthermore, the reviewing court must
operate under the strong presumption that counsel's conduct fell within the broad range
that is reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987
(2014).

After reading the trial court's order and reviewing the record, it becomes clear that
Lamb did not fully pursue the voluntary intoxication defense because the evidence did
not take him in that direction. Putting ourselves in his position and recognizing the
circumstances he was facing, we determine that Lamb did well to develop sufficient
testimony to obtain the giving of the voluntary intoxication instruction.

Thus, the trial court's findings were supported by substantial competent evidence
and were sufficient to support its conclusion that Lamb was not ineffective in failing to
adequately argue the voluntary intoxication defense. To the contrary, Lamb did
adequately argue the defense. Accordingly, Marks' argument that Lamb provided
ineffective assistance of counsel in failing to adequately argue the voluntary intoxication
defense is unpersuasive.

Affirmed.