Mitchell-Pennington v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,407

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LEE ANDREW MITCHELL-PENNINGTON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed March 24, 2017.
Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MCANANY, P.J., MALONE, J., and STUTZMAN, S.J.

Per Curiam: Lee Andrew Mitchell-Pennington appeals the district court's
summary denial of his K.S.A. 60-1507 motion. Mitchell-Pennington asserts that (1) the
district court erred in denying his claims of ineffective assistance of appellate counsel; (2)
the district court erred in denying his claims of ineffective assistance of trial counsel; and
(3) the district court erred in denying his claim for a new trial based on newly discovered
evidence. For the reasons stated herein, we affirm the district court's judgment.


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FACTUAL AND PROCEDURAL BACKGROUND

Following a jury trial, Mitchell-Pennington was convicted of three counts of
aggravated robbery and one count of aggravated burglary. His convictions were affirmed
by this court in State v. Mitchell-Pennington, No. 103,094, 2011 WL 4031485 (Kan. App.
2011) (unpublished opinion), and the underlying facts are set forth in that decision:

"In the early morning hours of October 5, 2008, Jeremy Mireles, Emilio Alva,
and Joshua Little were in the apartment shared by Mireles and Alva on Alabama street in
Lawrence. Mireles was in his bedroom, and Alva and Little were in the living room area.
Mireles heard a knock on the door and he thought it was his girlfriend and Alva's
girlfriend, so he headed for the living room. As Little opened the door, four men rushed
into the apartment.
"The perpetrators attempted to hide their identities. Three of them wore bandanas
covering the lower half of their faces and the fourth had a hood around his head. Mireles
immediately recognized one of the perpetrators as Pennington because he had gone to
school with him. Mireles recognized another one of the perpetrators as Dominic, an
acquaintance who had been at the apartment to hang out just a few days before. Mireles
testified that both Pennington and Dominic had guns and that Pennington made Mireles
lay face down on the couch and then he put the gun to the back of Mireles' head. Mireles
recognized the third man as D'Armon, a friend. Mireles testified that one of the burglars
referred to Pennington as 'Lee' and then said, 'My bad L. My bad.'
"Mireles further testified that the men stole two Xboxes, a flat-screen TV, two
laptops belonging to the two girlfriends, two cell phones, and Mireles' wallet. He testified
the entire episode took about 10 minutes. Little testified the episode took 30 minutes. The
burglars threatened to harm the three men if they called the police. After the burglars left,
Mireles, Alva, and Little were scared and did not immediately call the police. They
picked up their girlfriends and drove out to the country to talk about what to do. They
eventually called the police 2 hours later, around 5 a.m. In his first interview with the
police, Mireles said that he did not know the identity of the perpetrators. However, the
second time he went to the police station, he told police that he knew the perpetrators and
gave their names.
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"On cross-examination at trial, Mireles admitted to drinking two beers on the
night in question and also smoking some marijuana. Mireles admitted to not immediately
calling the police and not identifying Pennington until the second interview he had with
police. Defense counsel also questioned Mireles on his inconsistency regarding how
many of the men had guns. Mireles testified that the only lights on in the apartment were
the kitchen stove light and the blue screen from the TV.
"Both Little and Alva gave a similar account of the events on the evening in
question. Alva testified that he too recognized Pennington and D'Armon as two of the
burglars. Alva had also gone to school with Pennington and had seen him most recently a
week before the incident. Alva said he also heard one of the men call Pennington by the
name 'Lee' and that when Pennington yelled back at them to not call him by name, Alva
recognized Pennington's voice as well.
"In addition to the testimony from the victims, the State also presented significant
testimony from Pennington's sister, Lashell Mitchell. She testified that Pennington and
another man came to her apartment on October 9, 2008, and told her essentially that they
had been involved in a 'lick' a few days before at an apartment on Alabama Street in
Lawrence. She took the term 'lick' to mean a home invasion. They also told her they had
taken a flat-screen television and other items.
"The jury convicted Pennington on three counts of aggravated robbery and one
count of aggravated burglary. Pennington filed a motion for durational departure, which
the district court denied. The court sentenced Pennington to a presumptive term of 102
months for the primary crime of aggravated robbery and concurrent sentences of 59
months each for the other two aggravated robbery convictions. The court imposed a
presumptive prison term of 32 months for the aggravated burglary charge and ordered the
sentence to run consecutive to the aggravated robbery sentences. That made for a
controlling sentence of 134 months' incarceration." 2011 WL 4031485, at *1-2.

On February 25, 2014, Mitchell-Pennington filed a K.S.A. 60-1507 motion
alleging ineffective assistance of both trial and appellate counsel. Mitchell-Pennington
also included a newly discovered evidence claim in his motion. On November 23, 2015,
the district court filed a comprehensive 15-page memorandum decision denying Mitchell-
Pennington's motion. Mitchell-Pennington filed a timely notice of appeal. Additional
facts will be provided to address the issues.
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INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Mitchell-Pennington alleges that his appellate counsel rendered ineffective
assistance for several reasons. Mitchell-Pennington argues that his appellate counsel
should have objected to the burden of proof jury instruction. He also argues that his
appellate counsel abandoned evidentiary errors related to hearsay and impeachment
evidence. Finally, Mitchell-Pennington argues that his appellate counsel failed to raise
several instances of prosecutorial misconduct.

When the district court summarily denies a K.S.A. 60-1507 motion, an appellate
court conducts de novo review to determine whether the motion, files, and records of the
case conclusively establish that the movant is not entitled to relief. Sola-Morales v. State,
300 Kan. 875, 881, 335 P.3d 1162 (2014). Judicial scrutiny of counsel's performance in a
claim of ineffective assistance of counsel is highly deferential and requires consideration
of all the evidence before the judge or jury. The reviewing court must presume that
counsel's conduct fell within the broad range of reasonable professional assistance. State
v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014).

To prove a claim of ineffective assistance of appellate counsel, an appellant must
show two things: (1) The performance of appellate counsel was deficient under the
totality of the circumstances, and (2) the deficient performance prejudiced the defendant's
direct appeal. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014). To establish
prejudice, the defendant must show a reasonable probability that, but for counsel's
deficient performance, the outcome of the proceeding would have been different, with a
reasonable probability meaning a probability sufficient to undermine confidence in the
outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015).



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Burden of proof jury instruction

Mitchell-Pennington first asserts that his appellate counsel should have argued that
the jury instruction given by the trial court improperly diluted the burden of proof. As a
preliminary matter, Mitchell-Pennington did not raise this issue in his K.S.A. 60-1507
motion. Generally, a party cannot raise an issue for the first time on appeal. Wolfe
Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). However, there are
several exceptions to this general rule, including the following: (1) The newly asserted
theory involves only a question of law arising on proved or admitted facts and is finally
determinative of the case; (2) consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights; and (3) the judgment of the district
court may be upheld on appeal despite its reliance on the wrong ground or having
assigned a wrong reason for its decision. In re Estate of Broderick, 286 Kan. 1071, 1082,
191 P.3d 284 (2008), cert. denied 555 U.S. 1178 (2009).

Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 35) requires an appellant to
explain why an issue that was not raised below should be considered for the first time on
appeal. Mitchell-Pennington argues that this claim raises a question of law and
consideration of his claim is necessary to prevent the fundamental denial of rights. We
note that the State's brief concurs that it is appropriate for this court to consider this issue
for the first time on appeal. Because the jury instruction issue involves only a question of
law arising on admitted facts, we will address the issue for the first time on appeal.

Mitchell-Pennington's trial occurred in March 2009. Following a jury instruction
conference, the parties agreed to the following instruction on reasonable doubt and the
State's burden of proof:

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"The State has the burden to prove the defendant is guilty. The defendant is not
required to prove he is not guilty. You must presume that he is not guilty until you are
convinced from the evidence that he is guilty.
"The test you must use in determining whether the defendant is guilty or not
guilty is this: If you have a reasonable doubt as to the truth of any of the claims required
to be proved by the State, you must find the defendant not guilty. If you have no
reasonable doubt as to the truth of any of the claims required to be proved by the State,
you should find the defendant guilty."

This language of this instruction is derived from the 1995 version of PIK Crim. 3d
52.02. Neither party objected to the instruction. There are two differences between the
1995 version of PIK Crim. 3d 52.02 and the version that was in effect at the time of
Mitchell-Pennington's trial. First, the word "until" in the first paragraph of the old
instruction had been replaced with the word "unless." PIK Crim. 3d 52.02 (2004 Supp.).
Second, the word "any" in the last sentence of the old instruction had been replaced with
the word "each." PIK Crim. 3d 52.02 (2004 Supp.).

Had Mitchell-Pennington's appellate counsel raised the issue, the appellate court
would have applied the "clearly erroneous" standard of review. See State v. Wallin, 52
Kan. App. 2d 256, 268, 366 P.3d 651 (2016). This standard applies when trial counsel
does not object to a jury instruction. 52 Kan. App. 2d at 268. In determining whether a
jury instruction was clearly erroneous, appellate courts perform a two-step analysis. First,
"the court must determine whether there was any error at all by considering whether the
subject instruction was both legally and factually appropriate, employing an unlimited
review of the entire record." 52 Kan. App. 2d at 268. Second, "if the court finds error, it
must assess whether it is firmly convinced the jury would have reached a different verdict
without the error." 52 Kan. App. 2d at 268.

The Kansas Supreme Court has ruled that a trial court does not commit error by
instructing the jury that "'[i]f you have no reasonable doubt as to the truth of any of the
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claims required to be proved by the State, you should find the defendant guilty.'" State v.
Solis, 305 Kan. 55, 69-70, 378 P.3d 532 (2016); State v. Herbel, 296 Kan. 1101, Syl. ¶ 9,
299 P.3d 292 (2013). Our Supreme Court has ruled that while the preferred instruction
would substitute the word "any" in the last sentence with the word "each," an instruction
using the word "any" in the last sentence is legally appropriate. Solis, 305 Kan. at 70;
Herbel, 296 Kan. at 1120-24.

As for the use of the word "until" rather than the word "unless" in the first
paragraph of the instruction, our Supreme Court has ruled that this is not reversible error.
State v. Smith, 299 Kan. 962, Syl. ¶ 5, 327 P.3d 441 (2014); State v. Wilkerson, 278 Kan.
147, 158, 91 P.3d 1181 (2004). We note that the statutory source of the instruction on
presumption of innocence is K.S.A. 2016 Supp. 21-5108(b) (formerly K.S.A. 21-3109),
which provides: "A defendant is presumed to be innocent until proven guilty."
(Emphasis added.) Thus, the instruction given to the jury in Mitchell-Pennington's case
mirrored the statutory language on presumption of innocence. See State v. McConnell, 33
Kan. App. 2d 711, 714, 106 P.3d 1148 (2005).

Because using the outdated PIK language is not erroneous, the appellate court
would not have granted Mitchell-Pennington any relief had his counsel raised the jury
instruction issue in the direct appeal. Thus, appellate counsel did not render ineffective
assistance by failing to raise the issue, and the district court did not err in summarily
denying Mitchell-Pennington's K.S.A. 60-1507 motion on this claim.

Alleged evidentiary errors

Mitchell-Pennington argues that his appellate counsel abandoned several trial
evidentiary errors. His first argument relates to the admission of hearsay evidence.
Mitchell-Pennington does not identify the offending statements or cite to the place in the
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record where they occurred. However, based on Mitchell-Pennington's statement of facts
in his brief, it appears that he takes issue with statements given by Lashell Mitchell.

Lashell is Mitchell-Pennington's sister. She testified that Mitchell-Pennington and
one of his accomplices, Dominic, came to her house where they discussed a "lick" on
Alabama Street in Lawrence. Lashell explained that "lick" is slang and she interpreted it
to mean that they had committed a burglary. Mitchell-Pennington and Dominic told
Lashell that they wanted to stay with her because they were running from the law. The
State asked Lashell if the two men had told her about what happened to another
accomplice, D'Armon. Mitchell-Pennington objected to "anything that would be said by
the individual[] referred to as Dominic" on the basis of hearsay. The district court
sustained the objection and the State's attorney said she would rephrase the question.

The State's attorney narrowed the question and asked Lashell if Mitchell-
Pennington had told her what had happened with D'Armon. Lashell responded that
Mitchell-Pennington told her D'Armon had been caught and was planning to turn on his
accomplices. The State's attorney asked Lashell if Mitchell-Pennington told her what he
had taken during the home invasion. Lashell responded: "I heard, and I can't really
discuss what he said. He didn't really say what the other young man said, but they had
took flat screen T.Vs." Mitchell-Pennington objected again to "anything said by the other
individual" and the court sustained the objection.

The State's attorney asked Lashell if Mitchell-Pennington had sold any of the
stolen goods and Lashell stated that she knew the goods were sold but that she could not
say why she knew that because "it keeps getting shot down." Mitchell-Pennington
objected again because it was not clear who said what. Finally, Lashell explained that she
had made her brother "shut up about it" because she "didn't want to hear it."

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Hearsay is "[e]vidence of a statement which is made other than by a witness while
testifying at the hearing, offered to prove the truth of the matter stated." K.S.A. 2015
Supp. 60-460. Lashell's testimony related to statements made by Mitchell-Pennington and
his accomplice, Dominic. The out-of-court statements made by Mitchell-Pennington and
Dominic were offered for the truth of the matter asserted, making them hearsay. Hearsay
is generally inadmissible, but there are several exceptions. K.S.A. 2015 Supp. 60-460.

In denying Mitchell-Pennington's K.S.A. 60-1507 motion, the district court found
that Lashell's testimony was admissible under K.S.A. 2015 Supp. 60-460. The district
court ruled that out-of-court statements made by Mitchell-Pennington would have been
admissible under K.S.A. 2015 Supp. 60-460(g), which states that hearsay is admissible
when it is a statement made by "the person who is the party to the action." The district
court ruled that out-of-court statements made by Dominic would have been admissible
under K.S.A. 2015 Supp. 60-460(h)(2), which states that hearsay is admissible "[a]s
against a party, a statement . . . of which the party with knowledge of the content thereof
has, by words or other conduct, manifested the party's adoption or belief in its truth."

In his K.S.A. 60-1507 motion, Mitchell-Pennington argued that "not a single word
of Lashell's testimony was admissible and the entirety thereof violated [Mitchell-
Pennington's] confrontation rights." On appeal, Mitchell-Pennington only dedicates half
of a paragraph to his argument that Lashell's testimony was inadmissible hearsay, and he
limits this argument to the out-of-court statements allegedly made by Dominic. Mitchell-
Pennington notes that "[t]he district court sustained the objection of the defendant as to
hearsay, but failed to strike the prior hearsay testimony or instruct the jurors to disregard
that which was sustained to be inadmissible." Mitchell-Pennington argues that his
appellate counsel should have raised this evidentiary issue because he was denied "his
right to confront witnesses against him."

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Mitchell-Pennington's argument on appeal on this issue fails for three reasons.
First, Mitchell-Pennington fails to adequately brief the issue. While he makes the
conclusory statement that his confrontation rights were violated, he does not explain how.
A point raised incidentally in a brief and not argued therein is deemed abandoned.
Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).

Second, Mitchell-Pennington only argues that the district court "failed to strike"
the hearsay testimony of Lashell that the district court sustained as inadmissible.
However, it appears from the record that nothing of substance was said by Lashell about
Dominic's out-of-court statements that needed to be struck by the district court.

Third, in denying Mitchell-Pennington's K.S.A. 60-1507 motion, the district court
correctly found that out-of-court statements made by Dominic would have been
admissible under K.S.A. 2015 Supp. 60-460(h)(2). Lashell testified that Dominic and
Mitchell-Pennington were discussing the robbery at her house. Lashell stated that the two
men told her that they got drunk, went to a house, and robbed the people inside. The two
men also told Lashell they were running from the law. Mitchell-Pennington never refuted
any of the statements made by Dominic.

"[P]rejudicial statements made in the defendant's presence and tolerated without
resentment, explanation, or denial may be admissible as adoptive admissions under
K.S.A. 60-460(h)(2)." State v. Ransom, 288 Kan. 697, 711-12, 207 P.3d 208 (2009).
Silence can constitute an adoptive admission if the evidence shows:

"'(1) [T]he statement was extrajudicial, (2) it was incriminatory or accusative in import,
(3) it was one to which an innocent person would in the situation and surrounding
circumstances naturally respond, (4) it was uttered in the presence and hearing of the
accused, (5) the accused was capable of understanding the incriminatory meaning of the
statements, (6) the accused had sufficient knowledge of the facts embraced in the
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statement to reply thereto, and (7) the accused was at liberty to deny it or to reply thereto.'
[Citation omitted.]" Ransom, 288 Kan. at 712.

Here, the factors set forth in Ransom were met as to Dominic's out-of-court
statements that were made to Mitchell-Pennington and never refuted by him. The district
court correctly found that Dominic's out-of-court statements would have been admissible
as adoptive admissions under K.S.A. 2015 Supp. 60-460(h)(2). Thus, appellate counsel
did not render ineffective assistance by failing to raise the issue, and the district court did
not err in denying Mitchell-Pennington's K.S.A. 60-1507 motion on this claim.

Next, Mitchell-Pennington asserts that the trial court erred by disallowing
impeachment evidence of Lashell. During cross-examination of Lashell, Mitchell-
Pennington's attorney asked her if she had ever engaged in crimes that involved
dishonesty such as theft, deception, or forgery. Lashell replied: "I have a few thefts and I
have a robbery. I don't know if you need the aggravated batteries." Mitchell-Pennington's
attorney then began to ask, "And are you presently on—" when the State objected. The
attorneys met at the bench to discuss the issue outside the hearing of the jury. The State
objected to questioning regarding the fact that Lashell was on parole for aggravated
battery because it was not related to a crime of dishonesty. The district court agreed,
sustaining the objection because Lashell's probation status was irrelevant.

Mitchell-Pennington argues that his appellate counsel erred by failing to challenge
the district court's ruling on this issue. Like with the previous issue, Mitchell-Pennington
only dedicates half of a paragraph to this argument. He does not cite any caselaw or rules
of evidence to support his position. A point raised incidentally in a brief and not argued
therein is deemed abandoned. Friedman, 296 Kan. at 645.

Moreover, Mitchell-Pennington attempts to make a different argument on appeal
than he made at his trial. In his brief, Mitchell-Pennington asserts that the trial court erred
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by not allowing him to impeach Lashell involving "her status on parole and the
consequences on her parole status if she failed to testify for the state." However,
Mitchell-Pennington's trial counsel did not make this specific objection to the trial court.
In fact, Mitchell-Pennington's trial counsel said that he had "no problems" with not
questioning Lashell about the fact that she was on parole for aggravated battery. He only
wanted to ask whether Lashell was on parole or probation for crimes of dishonesty.

In any event, there is nothing in the record to support Mitchell-Pennington's
inference that Lashell only testified for the State because she was concerned about the
consequences on her parole if she failed to do so. K.S.A. 60-405 states that erroneous
exclusion of evidence is not a reason for setting aside a verdict or reversing a judgment
"unless it appears of record that the proponent of the evidence either made known the
substance of the evidence in a form and by a method approved by the judge, or indicated
the substance of the expected evidence by questions indicating the desired answers."
Mitchell-Pennington's trial counsel did not proffer any evidence that Lashell only
testified for the State because she was concerned about the consequences on her parole if
she failed to do so. Without such a proffer, Mitchell-Pennington's appellate counsel
would not have been successful in raising this issue on appeal; thus, the district court did
not err in summarily denying this claim.

Finally, Mitchell-Pennington alleges that his appellate counsel was ineffective for
failing to argue that testimony on Mitchell-Pennington's attempt to run away from the
police was inadmissible. At trial, a police officer testified that while he was assisting
another officer with a traffic stop, Mitchell-Pennington jumped out of the car and
attempted to run away. Before the officer testified, Mitchell-Pennington's attorney
objected to testimony that Mitchell-Pennington tried to evade the police. The State
explained that it had called the witness because "the fact that [Mitchell-Pennington] took
off running when he [saw] a police officer is indicative of consciousness of guilt." The
district court overruled Mitchell-Pennington's objection.
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Mitchell-Pennington does not explain why his appellate counsel was ineffective
for failing to raise this issue. His briefing on this issue is limited to one quote regarding
relevance and a statement (with no citations to the record) that "there were several trial
objections made . . . which warranted appellate review, as well as prosecutorial
misconduct." A point raised incidentally in a brief and not argued therein is deemed
abandoned. Friedman, 296 Kan. at 645.

In any event, appellate counsel would have been unsuccessful in challenging the
admission of the officer's testimony on appeal. Generally, "evidence of flight may be
admissible in order to establish the defendant's consciousness of guilt." State v. Walker,
226 Kan. 20, 21, 595 P.2d 1098 (1979). Thus, the trial court did not err in overruling the
objection to the testimony about Mitchell-Pennington's attempt to evade the police.

Claims of prosecutorial misconduct

Mitchell-Pennington's final argument regarding the ineffectiveness of his appellate
counsel relates to statements made by the prosecutor. Mitchell-Pennington asserts that his
appellate counsel should have raised three claims of prosecutorial misconduct.

In State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), the Kansas Supreme
Court developed a new framework for prosecutorial error to replace the old prosecutorial
misconduct analysis under State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004). Mitchell-
Pennington's direct appeal was in 2011, when the old framework would have applied.
While the Kansas Supreme Court has applied the old framework to cases that were
briefed before Sherman, in doing so the court has noted that the same result would have
been reached had it applied the Sherman framework. See State v. Netherland, 305 Kan.
167, 181, 379 P.3d 1117 (2016) ("We will therefore apply our old prosecutorial
misconduct framework to the claim advanced here, noting only that application of the
new framework would not make a difference in the outcome."); State v. Kleypas, 305
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Kan. 224, 314, 382 P.3d 373 (2016) ("[W]e will discuss the analysis under both Tosh and
Sherman. Kleypas does not establish reversible error under either.").

Appellate review of an allegation of prosecutorial misconduct requires a two-step
analysis. First, the court determines whether the prosecutor's comments were outside the
wide latitude that the prosecutor is allowed in discussing the evidence. This analysis is
the same under both the old and new frameworks. Kleypas, 305 Kan. at 314-16.

If there was misconduct, then the second step of the analysis under the old
framework is determining whether the comments prejudiced the jury against the
defendant and denied the defendant a fair trial. In making this determination, the
"appellate court considers three factors: (1) whether the misconduct was gross and
flagrant, (2) whether it was motivated by prosecutorial ill will, and (3) whether the
evidence was of such a direct and overwhelming nature that the misconduct would likely
have had little weight in the minds of jurors." 305 Kan. at 314.

The three-factor test is not used under the new Sherman framework. Instead, "the
prejudice analysis will focus on whether the error prejudiced the defendant's due process
rights to a fair trial; if a due process violation occurs, prejudice will be assessed by
applying the Chapman constitutional error standard." Kleypas, 305 Kan. at 316. An error
is harmless under Chapman if "the party benefitting from the error proves beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., proves there is no reasonable possibility that the
error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert.
denied 565 U.S. 1221 (2012).

Mitchell-Pennington first claims that there was reversible error at his trial because
the prosecutor vouched for a witness' credibility. During closing argument the prosecutor
stated:
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"[Mitchell-Pennington's trial counsel] talked a little bit about Lashell [Mitchell].
That maybe she was hiding something or she was making this up. Why would she do
that? Why would his sister come in here and lie to you and tell you about these things in
detail that she's heard from Mr. Mitchell-Pennington and Dominic. This is not a person
that lies. She overshared. [Mitchell-Pennington's trial counsel] asked you about whether
she had any convictions about theft and she said I did this, this and this. And I've got a
couple of robberies and do you want my aggravated battery too. Is this a person that is
hiding something from you? I don't think so. This is a person that lays something out.
And it's your job as jurors to evaluate the credibility and each and every witnesses'
credibility that come in here and sits in that chair. It's up to you to determine whether she
was telling you the truth." (Emphasis added.)

Mitchell-Pennington asserts that his appellate counsel should have argued that the
prosecutor inappropriately vouched for Lashell's credibility when the prosecutor said,
"This is not a person that lies." Mitchell-Pennington argues that the prosecutor's
statement prejudiced him and denied him a fair trial.

In denying Mitchell-Pennington's K.S.A. 60-1507 motion on this issue, the district
court found that the prosecutor improperly vouched for Lashell's credibility, but that any
error was harmless. It is well established that a prosecutor may not state a personal
opinion to vouch for the credibility of his or her own witness. State v. Elnicki, 279 Kan.
47, 64, 105 P.3d 1222 (2005). We agree with the district court that the prosecutor at
Mitchell-Pennington's trial improperly vouched for Lashell's credibility. We will address
any prejudice caused by the prosecutor's improper statement later in this opinion.

Second, Mitchell-Pennington asserts that the prosecutor misstated facts or referred
to facts not in evidence. During opening statements, the prosecutor stated that one of the
victims, Jeremy Mireles, knew Mitchell-Pennington because he had gone to high school
with him. The prosecutor also said that another victim, Emilio Alva, would be able to
testify that he recognized Mitchell-Pennington "by his eyes and his hair and the way his
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head looked." The testimony revealed that it was actually Alva who went to high school
with Mitchell-Pennington. Mireles went to elementary and middle school with Mitchell-
Pennington and saw him during high school, but he did not actually attend the same high
school with him. Similarly, it was actually Mireles who identified Mitchell-Pennington
by looking at him. Because the lower half of Mitchell-Pennington's face was covered
with a bandana, it is a reasonable inference that Mireles identified Mitchell-Pennington
by looking at the uncovered parts of his face, including his eyes, hair, and head shape.
Alva recognized Mitchell-Pennington because of Mitchell-Pennington's voice and
because one of his accomplices said his name.

The prosecutor did not misstate facts in evidence in the opening statement. Rather,
the prosecutor merely mixed up the names of the two victims in the case, but the
prosecutor accurately stated the evidence that would be introduced at trial. There was no
prosecutorial misconduct on this point for Mitchell-Pennington's appellate counsel to
raise in the direct appeal.

Third, Mitchell-Pennington asserts that the prosecutor misstated the law. During
voir dire, the prosecutor made the following statement while discussing the reasonable
doubt standard: "I want to be clear that, that standard is—it's not beyond all doubt. The
state doesn't have to prove absolutely 100 percent that a crime occurred just that it
occurred beyond a reasonable doubt. So, I would ask you to hold me to that standard."

Mitchell-Pennington claims that his appellate counsel should have argued that "the
prosecutor made misstatements of law during voir dire regarding the State's burden of
proof that ultimately shaped the entire trial by attempting to define reasonable doubt in
some numerical sense of less tha[n] 100 percent." In denying Mitchell-Pennington's
K.S.A. 60-1507 motion on this issue, the district court ruled that the statement was "not a
misstatement of the law nor [was] it misleading, nor [was] it contrary to any of the law
upon which the jury was instructed."
17

"It is improper for the prosecutor to . . . misstate the legal standard of the burden
of proof." State v. Stone, 291 Kan. 13, 18, 237 P.3d 1229 (2010). In particular, a
prosecutor must exercise caution in attempting to quantify reasonable doubt if the
prosecutor's statement dilutes the State's burden of proof. See State v. Crawford, 300
Kan. 740, 755, 334 P.3d 311 (2014). However, prosecutors are permitted to "illustrate[]
the difference between proof beyond a reasonable doubt and proof beyond any and all
doubt." State v. Brown, No. 113,551, 2016 WL 3659792, at *2 (Kan. App. 2016)
(unpublished opinion) (citing State v. Stevenson, 297 Kan. 49, 53, 298 P.3d 303 [2013]).

Here, the prosecutor did not misstate the law by explaining to the prospective jury
during voir dire that beyond reasonable doubt does not mean 100 percent. The prosecutor
was merely pointing out that beyond reasonable doubt does not mean beyond all doubt,
which is permissible. However, even if the prosecutor misstated the law on this point,
Mitchell-Pennington must still show prejudice, as we will now address.

The second step of the prosecutorial misconduct analysis is whether the comments
prejudiced the jury against Mitchell-Pennington and denied him a fair trial. Under the old
framework, an appellate court considered whether the prosecutor's conduct was gross and
flagrant, whether it was motivated by ill will, and whether the evidence was of such a
direct and overwhelming nature that the misconduct would likely have had little weight
in the minds of the jurors. State v. Fisher, 304 Kan. 242, 251, 373 P.3d 781 (2016).

As we discussed, the prosecutor at Mitchell-Pennington's trial improperly vouched
for Lashell's credibility during closing argument. However, the prosecutor's conduct was
not gross or flagrant. Factors that suggest gross and flagrant conduct include "whether the
misconduct was repeated, was emphasized, violated a long-standing rule, violated a clear
and unequivocal rule, or violated a rule designed to protect a constitutional right." State v.
Marshall, 294 Kan. 850, Syl. ¶ 6, 281 P.3d 1112 (2012). The prosecutor did not repeat or
emphasize the statement regarding Lashell's credibility. In fact, the prosecutor ended her
18

statement by reminding the jurors that it was their job to evaluate witness credibility and
it was up to them to determine whether Lashell was telling the truth.

The prosecutor's conduct did not appear to be motivated by ill will. A prosecutor's
ill will is often "reflected through deliberate and repeated misconduct or indifference to a
court's rulings." State v. Madkins, 42 Kan. App. 2d 955, 961, 219 P.3d 831 (2009). The
prosecutor's conduct was not repeated—she only made one statement regarding Lashell's
credibility. There were no court rulings which the prosecutor disregarded.

Moreover, the eyewitness identification evidence was of such a direct and
overwhelming nature that the prosecutor's statement likely had little weight in the minds
of the jurors. The victims identified Mitchell-Pennington by his voice, his appearance,
and the fact that one of his accomplices called him "Lee." This evidence is also strong
enough to survive the Chapman constitutional error standard used under the new
prosecutorial error framework. Thus, although Mitchell-Pennington's appellate counsel
could have legitimately argued prosecutorial misconduct in the direct appeal, Mitchell-
Pennington is unable to establish that the outcome of the appeal would have been
different had the issue been raised.

Finally, Mitchell-Pennington argues that his appellate counsel should have argued
that cumulative errors denied him a fair trial. The test for cumulative error is whether the
totality of the circumstances establish that the defendant was substantially prejudiced by
cumulative errors and was denied a fair trial. State v. Holt, 300 Kan. 985, 1007, 336 P.3d
312 (2014). Here, Mitchell-Pennington only established one error—when the prosecutor
improperly vouched for witness credibility. "Cumulative error will not be found when the
record fails to support the errors raised on appeal by the defendant. [Citations omitted].
One error is insufficient to support reversal under the cumulative effect rule." State v.
Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Thus, appellate counsel was not
ineffective for failing to make a cumulative error argument.
19

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Next, Mitchell-Pennington asserts that the district court erred in denying his
claims of ineffective assistance of trial counsel. To prevail on a claim of ineffective
assistance of trial 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]).

Mitchell-Pennington first argues that his trial counsel failed to adequately
investigate his case. He argues that "[a] reasonably thorough investigation would likely
have revealed Lashell Mitchell's testimony would consist[] of inadmissible hearsay, and
objections could and should have been made to the content of her testimony outside the
presence of the jury." His appellate brief does not further explain how a more "thorough
investigation" would have prevented Lashell from providing inadmissible hearsay.

Mitchell-Pennington made a different argument in his K.S.A. 60-1507 motion.
There, he stated: "Had counsel interviewed the State's witnesses he would [have] learned
that Lashell Mitchell was coerced into giving false testimony for the State in order to not
lose her children and not go back to prison on a parole violation." Supreme Court Rule
6.02(a)(5) (2017 Kan. S. Ct. R. 35) requires an appellant to explain why an issue that was
not raised below should be considered for the first time on appeal. Mitchell-Pennington
has not complied with this rule. Our Supreme Court has held that litigants who fail to
comply with this rule risk a ruling that the issue is improperly briefed and will be deemed
waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014).

20

In any event, Mitchell-Pennington's claim that he raises on appeal fails on the
merits. As explained earlier, Lashell's testimony as to Mitchell-Pennington's statements
would have been admissible under K.S.A. 2015 Supp. 60-460(g) because he was a party
to the action. Lashell's testimony as to Dominic's out-of-court statements would have
been admissible as an adoptive admission under K.S.A. 2015 Supp. 60-460(h)(2). A
review of the record does not show that the performance of Mitchell-Pennington's trial
counsel was deficient in handling Lashell's testimony or that any further investigation by
trial counsel would have made a difference.

Next, Mitchell-Pennington argues that during voir dire and closing argument, his
"trial counsel made serious misstatements of law related to the state's burden of proof and
the concept of reasonable doubt." The first statement that Mitchell-Pennington takes issue
with is when, during voir dire, his trial counsel stated the following: "What is proof
beyond a reasonable doubt? That is something for you to decide as jurors. . . . And as [the
prosecutor] discussed that's not 100 percent evidence. It's not everything is crossed off,
but it's certainly not more." As explained above, the prosecutor did not err by explaining
that beyond reasonable doubt does not mean 100 percent. The prosecutor was pointing
out that beyond reasonable doubt does not mean beyond all doubt, which is permissible.
Mitchell-Pennington's trial counsel was doing the same thing. Trial counsel's
performance was not deficient for making this legal distinction.

Mitchell-Pennington also appears to take issue with the following statement made
by his trial counsel during closing argument:

"[T]he most significant [jury instruction] that we are concerned with is number 2, which
indicates you must use—the test you must use in determining whether Lee Andrew
Mitchell-Pennington is guilty or not guilty is, if you have a reasonable doubt as to the
truth of any claim required to be proven by state, and that's one of identification. That
Lee Andrew Mitchell-Pennington was there and participated in this. If you have
reasonable doubt he must be found not guilty."
21

Mitchell-Pennington takes issue with the fact that his attorney specifically
highlighted identification as an issue. He argues that by isolating his theory of defense to
only one element the State was required to prove, his attorney misstated the State's
burden of proof as to the other elements of the charges.

Mitchell-Pennington did not raise this issue in his K.S.A. 60-1507 motion, and he
fails to comply with Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 35) to permit
the issue from being raised for the first time on appeal. Thus, this issue is improperly
briefed and is abandoned. See Williams, 298 Kan. at 1085. In any event, the language
Mitchell-Pennington's trial counsel used tracked the language of the jury instruction and
did not misstate the law. The fact that Mitchell-Pennington's trial counsel stressed
identification as the key issue before the jury did not amount to deficient performance
under the circumstances of this case.

Finally, Mitchell-Pennington argues that his trial counsel was ineffective for
failing to object to the burden of proof instruction. But as we have already discussed, the
jury instruction was not erroneous. The fact that Mitchell-Pennington's trial counsel
failed to object to the instruction does not amount to deficient performance. Thus, we
conclude that the district court did not err in rejecting each of Mitchell-Pennington's
claims of ineffective assistance of trial counsel.

CLAIM OF NEWLY DISCOVERED EVIDENCE

Mitchell-Pennington's final argument is that the district court erred by summarily
denying the newly discovered evidence claim that he included in his K.S.A. 60-1507
motion. In his motion, Mitchell-Pennington claimed that one of his codefendants,
Dominic Gaston, had "issued a sworn affidavit stating that [Mitchell-Pennington] was not
one of his accomplices in the October 5, 2008 robbery of the victims in this case."
Mitchell-Pennington asserted that his own attorney "never bothered to interview any of
22

the others charged in the robbery to see if they would testify on [his] behalf." Mitchell-
Pennington also claimed that Gaston's attorney "probably would not have permitted Mr.
Gaston to speak up until after he completed his guilty plea and was sentenced." Mitchell-
Pennington argued that the evidence was newly available because he "could not have
obtained the affidavit from Gaston prior to the appeal being filed in his case."

To place the events in a timeline, the incident giving rise to the criminal charges
against Mitchell-Pennington occurred in 2008. Mitchell-Pennington was convicted of the
charges in 2009. Gaston's written statement was signed on June 21, 2010. Mitchell-
Pennington filed his K.S.A. 60-1507 motion on February 25, 2014. Although the motion
referred to Gaston's statement, it was not attached to the motion. The State filed a motion
to summarily deny the K.S.A. 60-1507 motion on June 25, 2014, which asserted that
Mitchell-Pennington had not provided any affidavit to support his claim. Mitchell-
Pennington, through counsel, filed a response to the State's motion for summary denial on
April 17, 2015, and attached a copy of Gaston's written statement to that response.

In denying Mitchell-Pennington's K.S.A. 60-1507 motion on this claim the district
court found that Mitchell-Pennington had failed to establish that the evidence was, in
fact, newly discovered. Specifically, the district court found that there was no evidence
before the court that Gaston was unwilling to testify at Mitchell-Pennington's trial and
there was no proffer from Mitchell-Pennington as to why the affidavit could not have
been obtained earlier.

We first note that Gaston's written statement, which is included in the record on
appeal, is insufficient as to form. Although Mitchell-Pennington refers to the statement as
a "sworn affidavit," the document, in fact, is not a sworn statement. The district court
could have rejected the statement as newly discovered evidence on this ground alone.

23

Moreover, we agree with the district court that Mitchell-Pennington failed to
establish that the evidence was, in fact, newly discovered. A new trial may be granted for
newly discovered evidence when it appears the rights of a party are substantially affected.
In order to qualify as newly discovered evidence, it must be material to the cause of
action and contain information which the movant with reasonable diligence could not
have discovered and produced at the trial. State v. Ferguson, Washington & Tucker, 228
Kan. 522, Syl. ¶ 7, 618 P.2d 1186 (1980). In that case, Ferguson argued that the court
should grant him a new trial because one of his codefendants had allegedly drafted and
signed a statement indicating that Ferguson was not present when the crimes were
committed. The Kansas Supreme Court rejected Ferguson's argument, holding that
"[t]here appears no reason why this evidence if admissible could not have been produced
at trial, assuming [the codefendant] would agree to testify." 228 Kan. at 531.

Mitchell-Pennington argues that his evidence was newly available because
Gaston's attorney "probably would not have permitted" Gaston to speak up while a
criminal case was pending against him. But as our Supreme Court indicates in Ferguson,
we cannot presume that Gaston would have been unavailable to testify at Mitchell-
Pennington's trial simply because criminal charges were pending against him. Gaston
would not have been deemed an unavailable witness until he took the stand and refused
to testify on Mitchell-Pennington's behalf.

Thus, we agree with the district court that Mitchell-Pennington failed to show why
the evidence presented in his K.S.A. 60-1507 proceeding could not have been discovered
and produced at trial with reasonable diligence. For this reason, we conclude that the
district court did not err in denying Mitchell-Pennington's claim for relief based on newly
discovered evidence.

Affirmed.