Nelson v. State

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NOT DESIGNATED FOR PUBLICATION

No. 114,250

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CAMERON NELSON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed January 27, 2017.
Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., ATCHESON and POWELL, JJ.

Per Curiam: After an evidentiary hearing, the Saline County District Court denied
Defendant Cameron Nelson's motion for habeas corpus relief from his convictions for
reckless second-degree murder and criminal possession of a firearm. Although the
underlying criminal prosecution and conviction of Nelson proved especially contentious,
the two issues he presents on appeal from the denial of his motion under K.S.A. 60-1507
are not. Nelson contends his trial lawyer should have objected to instructing the jury on
the murder charge and the lawyer failed to preserve any issue related to an unavailable
witness. But Nelson cannot show prejudice tainting his convictions. We, therefore, find
no error in the district court's ruling and affirm.
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FACTUAL AND PROCEDURAL HISTORY

The State's theory of the underlying homicide had Nelson, while riding with three
other people in a car, reaching out the window and firing a handgun at the victim, a
pedestrian standing a short distance behind the slowly moving vehicle. The shooting took
place in April 2008 on a street in Salina. The evidence pointed to some bad blood
between Nelson and the victim. The principal testimony against Nelson came from
another passenger in the car, who had cut a deal in exchange for his cooperation with the
prosecutors. No physical evidence tied Nelson to the shooting, and he never made any
inculpatory statements to law enforcement officers. Some evidence suggested the victim
was actually shot by another person on foot shortly before the car drove down the street.
Nelson's defense essentially focused on that evidence and the shaky character of the
State's case as fraught with reasonable doubt. Nelson did not testify in his own defense.
We think it fair to say the evidence pointing to Nelson's guilt was less than
overwhelming.

The procedural history, including three jury trials, reflects those evidentiary
limitations. The State initially charged Nelson with intentional first-degree murder but
amended the charge to intentional second-degree murder before the first trial in
December 2008. The district court declared a mistrial after the jurors could not reach a
verdict. The State added the firearms charge and in April 2009 tried Nelson a second
time. Those jurors could not reach a verdict, so the district court declared another
mistrial. At the third trial, in September 2009, the jurors convicted Nelson of reckless
second-degree murder, as a lesser degree of homicide, and of unlawful possession of a
firearm. The district court later sentenced Nelson to a controlling term of 300 months in
prison, reflecting a downward durational departure.

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On direct appeal, the sufficiency of the evidence supporting the guilty verdict for
reckless second-degree murder proved challenging, as a panel of this court affirmed the
convictions in a divided decision consisting of three opinions. State v. Nelson, No.
104,070, 2012 WL 1919859 (Kan. App. 2012) (unpublished opinion), rev. denied 297
Kan. 1253 (2013). In the lead opinion, Judge Pierron declined to reach the sufficiency
question, reasoning that because Nelson's lawyer had not specifically objected to the
instruction on reckless second-degree murder the invited error doctrine precluded review
on appeal. 2012 WL 1919859, at *4-6. But see State v. Logsdon, 304 Kan. 3, 31, 371
P.3d 836 (2016) (failure to object to jury instruction does not in and of itself trigger
invited error rule). Judge Buser bypassed invited error and found the evidence at the third
trial required the district court to instruct on reckless second-degree murder, consistent
with K.S.A. 22-3414(3). 2012 WL 1919859, at *16-17. Judge Buser, therefore, joined in
the judgment affirming the conviction because the evidence taken in the best light for the
State justified the guilty verdict. Judge Green dissented and would have reversed the
reckless second-degree murder conviction, finding insufficient evidence to support it as a
matter of law. 2012 WL 1919859, at *24.[*]

[*]The panel addressed other issues Nelson raised on direct appeal, but they do not
factor in his 60-1507 motion. We need not extend this opinion by outlining them. The
inquisitive reader may peruse those issues in Judge Pierron's lead opinion in the direct
appeal. That same reader will find a wealth of detail about the underlying facts across
those three opinions.

With the help of a new lawyer, Nelson pursued his 60-1507 motion. The district
court held an evidentiary hearing in March 2015. The only witnesses to testify were Julie
McKenna, who represented Nelson during all three trials, and Christina Trocheck of the
Saline County Attorney's office, who represented the State in the third trial. The district
court issued a lengthy written order denying the motion. Nelson has appealed, and that is
what we have in front of us.


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LEGAL ANALYSIS

Nelson contends McKenna's representation of him leading up to and during the
third trial fell below the standard of competence required to satisfy the right to counsel
guaranteed criminal defendants in the Sixth Amendment to the United States
Constitution. On appeal, he cites two purported deficiencies: (1) McKenna failed to
object to the district court's decision to instruct the jurors on reckless second-degree
murder; and (2) McKenna failed to preserve any issue arising from the unavailability of
Kashif Wilson, one of the people riding in the car from which Nelson allegedly fired the
handgun, to testify at the trial. After setting out some governing legal principles, we
consider each claim in turn.

When reviewing the denial of a 60-1507 motion after a full evidentiary hearing, an
appellate court accepts the district court's findings of fact to the extent they are supported
with substantial competent evidence. The appellate court exercises unlimited review of
the determinative legal issues in light of those factual findings. Bellamy v. State, 285 Kan.
346, 355, 172 P.3d 10 (2007).

To demonstrate constitutionally ineffective assistance of the lawyer handling his
criminal case in the district court, Nelson must show the representation fell below an
objective standard of reasonableness resulting in legal prejudice, meaning there probably
would have been a different outcome had the representation been adequate. Strickland v.
Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see
Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and
stating Strickland test for ineffective assistance); see also Haddock v. State, 282 Kan.
475, 512-13, 146 P.3d 187 (2006) (stating Strickland test and Chamberlain standard of
review). In short, Nelson must identify both substandard lawyering and resulting legal
prejudice. As the United States Supreme Court and the Kansas Supreme Court have
noted, review of the representation should be deferential and hindsight criticism tempered
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lest the evaluation of a lawyer's performance be unduly colored by lack of success
notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689-90; Holmes
v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should counsel's representation
be considered substandard when he or she investigates the client's circumstances and then
makes a deliberate strategic choice among multiple options. Strickland, 466 U.S. at 690-
91.

In general, the courts look at a lawyer's overall performance in representing a
criminal defendant in determining whether the Sixth Amendment right to counsel has
been satisfied, meaning that a minor mistake or even a number of minor mistakes do not
breach that duty. See Harrington v. Richter, 562 U.S. 86, 110-11, 131 S. Ct. 770, 178 L.
Ed. 2d 624 (2011); Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574, 91 L.
Ed. 2d 305 (1986); Bland v. Hardy, 672 F.3d 445, 450 (7th Cir. 2012) ("[T]he question
under Strickland is not whether the lawyer made a mistake, even a serious one; it is
whether the lawyer's overall performance was professionally competent."). But a single
error causing sufficiently substantial legal harm to the defendant to call into question an
adverse outcome at trial or on appeal will suffice. See Miller v. State, 298 Kan. 921, 938-
39, 318 P.3d 155 (2014) (applying Strickland test to error by lawyer handling direct
criminal appeal).

Failure to Object to Jury Instruction

For his first point, Nelson attempts to characterize as constitutional error
McKenna's failure to object to the district court's decision to instruct on reckless second-
degree murder as a lesser degree of intentional second-degree murder. At the outset, we
mention that this case is governed by the criminal code as it was before the recodification
that went into effect in 2011, since the shooting happened in 2008. Under the earlier
code, reckless second-degree murder was a lesser degree of homicide measured against
intentional second-degree murder, so a jury instruction on it would have been legally
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appropriate. State v. Jones, 27 Kan. App. 2d 910, Syl. ¶ 4, 8 P.3d 1282 (2000)
(recognizing reckless second-degree murder to be lesser degree of intentional second-
degree murder); see State v. Plummer, 295 Kan. 156, 164, 283 P.3d 202 (2012) (legally
appropriate to instruct on theft as lesser degree of robbery despite differing elements).

Even though an instruction on a lesser included offense may be legally
appropriate, the facts of the particular case must support giving the instruction in that
case. To warrant a jury instruction on a lesser offense, a party requesting the instruction
must point to record evidence that, if believed, would permit the jury to return a guilty
verdict on that offense. State v. Hill, 290 Kan. 339, 355-56, 228 P.3d 1027 (2010). The
district court has a statutory duty to instruct jurors on any lesser included offense
supported in the evidence. K.S.A. 22-3414(3). And the district court has to fulfill that
obligation even if no request for an instruction on the lesser included offense has been
made. Likewise, a defendant cannot release the district court from that duty through a
request that the jurors not be instructed on otherwise legally and factually appropriate
lesser included offenses. State v. Cordray, 277 Kan. 43, 53-54, 82 P.3d 503 (2004); State
v. Balbirnie, No. 106,849, 2013 WL 3455772, at *3 (Kan. App. 2013) (unpublished
opinion), rev. denied 298 Kan. 1204 (2014). Basically, K.S.A. 22-3414(3) precludes a
defendant from pursuing an all-or-nothing strategy that would force a jury to choose
between convicting him or her of the charged crime and finding him or her not guilty of
anything, even though the evidence might well support some lesser offense. See Cordray,
277 Kan. at 53-54.

Given those principles, so long as some evidence supported a guilty verdict for
reckless second-degree murder, the district court had to instruct the jury on that crime
even if McKenna had objected. In other words, an objection from McKenna would have
made no difference, and the failure would not have prejudiced Nelson. Accordingly, we
have examined the trial record to determine if the evidence justified the district court's
decision to give a reckless second-degree murder instruction.
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We find there was adequate evidence for an instruction and, in turn, to uphold the
jury's verdict. Our analysis essentially aligns with Judge Buser's concurring opinion in
Nelson's direct appeal. The evidence showed the shooter reached back through the open
window of the moving car and fired a handgun in the general direction of the victim.
Based on the trial evidence, the shooter said nothing leading up to or during the incident
to betray any particular criminal intent.

As codified in K.S.A. 21-3402(b), reckless second-degree murder required the
State to prove Nelson killed "unintentionally but recklessly under circumstances
manifesting extreme indifference to the value of human life." The criminal act itself—
here, firing the handgun—may be intentional and deliberate. State v. Deal, 293 Kan. 872,
885, 269 P.3d 1282 (2012). But the criminal actor—here, Nelson—must have undertaken
the act without an intent to kill. 293 Kan. at 885. The circumstances, nonetheless, have to
evince "extreme indifference" to the imminent danger the act poses to human life. 293
Kan. at 884. By contrast, a defendant acting with an intent to kill would be guilty of
intentional second-degree murder, as defined in K.S.A. 21-3402(a), if the act resulted in
the death of another person.

In this case, the evidence was consistent with the shooter firing the handgun in the
vicinity of the victim without necessarily intending to kill or even hit the victim—
prompted, perhaps, by a desire to scare or intimidate the victim. The trial evidence did
not show the shooter carefully aimed the gun. Nor did the shooter say something
manifesting a desire to kill the victim. That evidence conforms to an unintentional killing.
At the same time, firing a handgun from a moving car even in the general vicinity of
another person indicates a marked indifference to potentially fatal consequences. A
handgun, after all, is a deadly weapon. And in firing more or less indiscriminately toward
someone, the shooter disregards the real and imminent danger a bullet may strike that
person inflicting a life-threatening injury. The circumstances bear a close resemblance to
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the classic example of a depraved-heart murder, the common-law antecedent to reckless
second-degree murder: firing a rifle at a moving passenger train, resulting in the death of
one of the occupants. See Wilkerson v. State, 336 P.3d 1188, 1195-96 (Wyo. 2014)
(citing that example and also intending to fire a shot near someone to scare him or her but
aiming poorly and instead striking the individual, inflicting a fatal injury).

Given the trial evidence, the district court had a duty under K.S.A. 22-3414(3) to
instruct the jurors on reckless second-degree murder whether or not McKenna objected.
As we have indicated, McKenna's failure to object—whatever the reason—made no
difference in how the trial unfolded or in how the jurors properly should have been
instructed. Nelson has no constitutional complaint as to his legal representation on that
score, since he suffered no prejudice. His 60-1507 motion presented no grounds for relief
in that respect.

Failure to Preserve Issue of Unavailable Witness

As part of a motion for a new trial following Nelson's convictions, McKenna
submitted an affidavit from Wilson stating that Nelson was not in the car at the time of
the shooting. Wilson had been charged as coconspirator in the shooting, since he had
been in the car. Because his own case remained unresolved, Wilson did not testify at any
of Nelson's trials. Sometime after Nelson's third trial and before the hearing on Nelson's
new trial motion, Wilson entered a plea to a reduced charge. At the motion hearing,
McKenna argued Wilson had been unavailable as a witness at Nelson's third trial and his
testimony would have materially affected the outcome to Nelson's benefit. Accordingly,
McKenna contended that Wilson's testimony should be considered newly discovered
evidence.

The district court denied that aspect of the new trial motion because McKenna had
failed to comply with the procedure outlined in State v. Littlejohn, 236 Kan. 497, 502-03,
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694 P.2d 403 (1984), for dealing with potential witnesses who likely would invoke their
privilege against self-incrimination if called to testify—making them unavailable. With a
brief discussion that cites no authority or any detailed rationale, the Littlejohn court
accepted the State's argument that an affidavit from a witness such as Wilson could not
be considered newly discovered evidence. The court held that to preserve the "new
evidence" issue, a defendant either had to subpoena the potential witness for trial and
have that person invoke his or her privilege against self-incrimination in a hearing outside
the jury's presence or had to request a continuance of the trial until the witness had been
adjudicated on his or her own pending charges, thereby eliminating the legal basis for
asserting the privilege. 236 Kan. at 502-03. McKenna had done neither in addressing
Wilson's unavailability as a witness in the third trial.

In his 60-1507 motion, Nelson argued that McKenna's failure to follow the
directive in Littlejohn amounted to a deprivation of constitutionally adequate
representation, since Wilson's affidavit could not be considered in securing a new trial or
raised as a reason for reversing his convictions on direct appeal. Nelson also suggested
that had McKenna requested a continuance of his third trial for the purpose of securing
Wilson's testimony, the district court might have granted the request. In considering
Nelson's 60-1507 motion, the district court rejected that argument on the grounds that the
factual assertions in Wilson's affidavit were of "suspect" credibility.

The hearing transcript on the 60-1507 motion, however, demonstrates another
more basic problem that undermines Nelson's position. Nelson produced no admissible
evidence at the hearing to establish prejudice as required under the second step in the
Strickland analysis. Wilson's affidavit was inadmissible for that purpose.

At the hearing, Wilson, on the advice of his own lawyer, refused to testify about
the affidavit or to repeat its substantive content. He effectively invoked his right against
self-incrimination as to those topics. That left Nelson without any admissible evidence at
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the hearing to show that he had not been in the car at the time of the shooting. When
Wilson refused to testify, he became unavailable as a witness. See K.S.A. 60-459(g)(1).
Wilson's affidavit constituted hearsay under K.S.A. 60-460, and it did not fit within any
exception, so the district court properly declined to consider it. Had Wilson testified at a
deposition or an earlier hearing, that testimony would have been admissible. K.S.A. 60-
460(c). But the hearsay exceptions do not permit the use of an affidavit from a person
who is unavailable to testify at an evidentiary hearing—admitting the affidavit would
deprive the opposing party of any opportunity to cross-examine the affiant. See State v.
Franco, 49 Kan. App. 2d 924, 936, 319 P.3d 551 (2014) (appearance on witness stand
with attendant cross-examination creates powerful mechanism for unveiling inaccuracies
and fabrications); In re Guardianship and Conservatorship of L.M.H., No. 108,297, 2013
WL 2395900, at *13 (Kan. App. 2013) (unpublished opinion) (Hearsay is generally
considered unreliable because, in part, the declarant does not appear in court and,
therefore, avoids the rigor of cross-examination to test the reliability of his or her
statements.).

Accordingly, Nelson failed to offer admissible evidence at the hearing on his 60-
1507 motion to suggest he had not been in the car at the time of the shooting. Without
that evidence from Wilson, he could not establish any demonstrable prejudice in how
McKenna dealt with Wilson—that is, a reasonable possibility that the result of his third
trial somehow would have been different. For that reason, Nelson's point warrants no
relief, and the district court properly rejected it.

An affidavit, like the one from Wilson, may be used to support a request for an
evidentiary hearing on a 60-1507 motion assuming it contains relevant information to
which the affiant could testify at the hearing. A district court reviews the motion and the
supporting materials to determine if they present a colorable basis for relief. If so, the
district court is to schedule a hearing to "determine the issues and make findings of fact
and conclusions of law." K.S.A. 60-1507(b). At the hearing, the movant must prove his
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claims with testimony, documents, and other materials admissible under the rules of
evidence. At that stage, an affidavit, standing alone, does not present or constitute
admissible evidence supporting substantive relief. The same evidentiary constraints
would be true for a motion for a new trial. That is, an affidavit could warrant an
evidentiary hearing, but the affiant would then have to testify at the hearing. So at any
evidentiary hearing on Nelson's new trial motion, the district court could not have
considered Wilson's affidavit in determining whether to order a new trial. Nothing in the
record suggests Wilson was prepared to testify at the new trial hearing. We may
reasonably assume he would have declined to do so, as he did at the 60-1507 hearing.

Having worked through the issues Nelson has raised on appeal, we conclude that
the district court reached the proper result in denying the 60-1507 motion.

Affirmed.