Sampson v. State

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NOT DESIGNATED FOR PUBLICATION

No. 113,653

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOHN SAMPSON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed September 9,
2016. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., HILL and ATCHESON, JJ.

ATCHESON, J.: After an evidentiary hearing, the Sedgwick County District Court
denied John Sampson relief on a habeas corpus motion that alleged his appointed lawyer
had inadequately represented him in a jury trial resulting in his convictions for felony
murder, aggravated robbery, and aggravated burglary. Sampson contends the district
court should have found the lawyer's performance constitutionally deficient for failing to
properly preserve an alibi defense and for failing to file a pretrial motion to suppress
statements he gave police. We conclude the purported deficiencies neither influenced the
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jury verdicts nor materially prejudiced Sampson in some other way, and we, therefore,
affirm the district court.

The jury convicted Sampson in February 2009. The trial evidence showed that
Sampson and his son Corey Logan forced their way into an apartment in Wichita in 2007
in the hopes of taking a large amount of cash and marijuana. Joey Smith, the son of
Sampson's then-girlfriend, waited for them in Sampson's truck. According to the
evidence, Sampson intended to use the money and drugs to settle a debt. Logan testified
that Sampson beat and then shot a man who lived in the apartment. The man died from
those injuries. Smith testified that when Sampson returned to the truck, he said he had
shot someone. After the three returned to Sampson's house, they disposed of their
clothing, a handgun, and other potential evidence.

During trial, the State also called as a witness Sampson's girlfriend at the time of
the crime. The two were also coworkers at a Wichita manufacturing company. At trial,
the woman testified she ran into Sampson at work the day of the crime and described him
as "looking pretty stressed out," pale, and shaking. She went on to explain that Sampson
then told her he had killed someone.

The State called a Wichita police department detective who, along with a second
officer, interviewed Sampson twice in November 2007. During the first interview,
Sampson said he knew about the break-in and murder but was not involved. He identified
Logan, Smith, and Smith's brother as the culprits. In the second interview, Sampson
admitted he drove Logan and Smith to the apartment but claimed he waited outside the
entire time. We discuss the circumstances of the interviews later in connection with the
point Sampson has raised on appeal.

Sampson neither testified in his own defense nor called any other witnesses. The
jury convicted Sampson of felony murder, aggravated robbery, and aggravated burglary.
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The district court later sentenced Sampson to life in prison with no parole for at least 20
years plus a consecutive sentence of 120 months. The Kansas Supreme Court considered
Sampson's direct appeal and found no trial errors warranting reversal of the convictions.
State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013).

Sampson then timely filed a motion for habeas corpus relief, as provided in K.S.A.
60-1507, on the grounds his trial lawyer's representation was constitutionally deficient
thereby violating his right to counsel protected in the Sixth Amendment to the United
States Constitution. The district court appointed a new lawyer to represent Sampson on
his 60-1507 motion. After hearing testimony from Sampson and his trial lawyer and
considering other evidence, including the record compiled in the criminal case, the
district court denied Sampson's motion. Sampson has appealed the ruling, and that is
what we have in front of us.

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. 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, Sampson 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, Sampson must identify both substandard lawyering and resulting legal
prejudice. As the United States Supreme Court and the Kansas Supreme Court have
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noted, review of the representation should be deferential and hindsight criticism tempered
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).

As we have indicated, Sampson identifies on appeal two ways he says his trial
lawyer's representation fell below the constitutionally required standard and materially
influenced the jury to find him guilty. We first take up the alibi defense and then the
admissibility of his statements to the Wichita police, adding facts as necessary.

As provided in K.S.A. 22-3218, a defendant who "proposes to offer evidence"
supporting an alibi defense must serve a written notice on the State at least 7 days before
trial stating "where defendant contends he was at the time of the crime[.]" The notice
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must also contain the names of witnesses the defendant intends to call in support of the
alibi. Defendants need not file notices if their only evidence of alibi will be their own
testimony. K.S.A. 22-3218(1). The State is then obligated to file a reciprocal notice
identifying witnesses it may call to rebut the alibi. The statute does not speak to
disclosure or exchange of documentary evidence related to an alibi. If a defendant fails to
give statutorily sufficient notice, K.S.A. 22-3218(4) directs that he or she "shall not be
permitted to offer evidence to the effect he [or she] was at some other place at the time of
the crime charged."

The break-in occurred sometime before 1:30 a.m. on July 10, 2007. Sampson, 297
Kan. at 290. Sampson's trial lawyer did not file an alibi notice. At trial, the lawyer
intended to rely on three documents the district court admitted as evidence: (1) A
timesheet from Sampson's job that seems to show he clocked in at 8:25 p.m. on July 9,
2007, and clocked out at 12:57 a.m. on July 10; (2) an e-mail sent from Sampson's work
station at 2:47 a.m. on July 10; and (3) a second e-mail sent from the work station at 3:15
a.m. The timesheet did not show Sampson clocking back in. The trial lawyer offered the
timesheet as a defense exhibit during his cross-examination of the detective who obtained
it from Sampson's employer. The State offered the e-mails as exhibits.

The lawyer wanted to argue to the jury that the documents indicated Sampson had
been at work when the crime happened. The State objected during the closing argument
on the grounds Sampson had failed to give notice of an alibi defense. In a bench
conference, the district court noted that the documents had been admitted as evidence.
But the district court prohibited Sampson's trial lawyer from arguing the documents
indicated Sampson had an alibi.

At the 60-1507 hearing, Sampson's trial lawyer testified that he concluded he did
not need to file an alibi notice because he intended to call no witnesses on the point and
that the purpose of the documents was to demonstrate that the State's witnesses had
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conspired to frame Sampson. The district court ruled Sampson's trial lawyer had offered a
reasoned strategic decision for not filing the notice. Therefore, according to the district
court, the trial lawyer's representation was constitutionally sufficient in that respect.

The district court's conclusion seems less than fully satisfactory. First, the
language of K.S.A. 22-3218(1) fairly clearly requires a defendant to file an alibi notice
unless the only evidence he or she offers to support the defense will be his or her own
testimony. Granted, nobody has found an appellate court decision holding that a
defendant has to file a notice if he or she intends to offer only documentary evidence of
an alibi. But the statute does not especially lend itself to that interpretation. Nor would
that reading be consistent with the purpose of giving notice.

The accuracy of an alibi is difficult to challenge without forewarning of the place
the defendant claims to have been. That is true whether the supporting defense evidence
comes from witnesses or documents—say, a certified copy of a parking ticket for the
defendant's car on the day of the crime in a far distant city. The parking ticket would be
circumstantial evidence supporting an alibi suggesting the defendant to have been in that
city with the car. But the defendant might have loaned his or her car to someone else or
might have parked the day before and returned to the place of the crime by bus,
commercial airline, or some other means. Those possibilities would take time to
investigate, hence the requirement for advance notice.[*]

[*]The exception to the notice requirement for a defendant's own testimony as the
sole evidence supporting an alibi has at least a couple of policy justifications. First,
advance notice arguably intrudes upon the right against self-incrimination protected in
the Fifth Amendment to the United States Constitution. A demonstrably false alibi would
be highly incriminating. Second, a defendant's exculpatory testimony—whether about an
alibi or some other defense—is inherently vested with self-interest and may be carefully
scrutinized by jurors for that reason alone. See Johnson v. State, No. 109,169, 2014 WL
1362929, at *8 (Kan. App. 2014) (unpublished opinion); Bell v. State, 284 Ga. 790, 794-
95, 671 S.E.2d 815 (2009) (noting "the self-evident fact" that a criminal defendant's
interest in outcome of case bears on credibility); People v. Barney, 176 Ill. 2d 69, 73, 678
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N.E.2d 1038 (1997) ("The notion that the possibility of conviction may color a
defendant's testimony is so basic, so rooted in common experience and human nature,
that it would be taken into account by the jurors whether the prosecutor mentioned it or
not."); State v. Hobbs, 713 N.W.2d 884, 887 (Minn. App. 2006) (prosecutor may point
out defendant's interest in outcome of case in arguing credibility to jury).

We are disinclined to say that a dubious interpretation of a statute with particular
importance in a given case plainly amounts to a strategic decision insulated from habeas
corpus review. See State v. Cheatham, 296 Kan. 417, 443-45, 292 P.3d 318 (2013)
(defense lawyer's conduct at trial may be deemed ineffective where proffered strategic
explanation could be characterized as something between "a misunderstanding of the
law" and simply "nonsensical"). The trial lawyer's misinterpretation of the alibi notice
statute probably should not be written off as a legitimate strategic determination. Cf. State
v. Thomas, 26 Kan. App. 2d 728, 732, 993 P.2d 1249 (1999) (trial counsel's performance
"unreasonable" for failing to file notice of alibi when a family member of defendant
would have testified in support of claim), aff'd 270 Kan. 17, 11 P.3d 1171 (2000).

Second, even assuming Sampson's trial lawyer actually wanted to offer the
documents to establish some conspiracy against Sampson, they would only do so if they
tended to show that Sampson did not participate in the break-in. And, in turn, they would
do that only if they indicated he had been at work then. So the documents would
necessarily support an alibi within the meaning and requirements of K.S.A. 22-3218.
That is to say, the conspiracy theory and an alibi defense were so inextricably linked as to
be inseparable. Both depended on and would be furthered only by the accuracy of the
documents.

We, therefore, assume without deciding that Sampson's trial lawyer fell below the
standard of care required in Strickland by failing to give notice of an alibi in conformity
with K.S.A. 22-3218, at least to the extent the claim depended upon the timesheet offered
and admitted as a defense exhibit. No one has suggested that Sampson should be excused
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from the notice requirements of K.S.A. 22-2318(1) because the alibi argument either
rested, in part, on evidence the State introduced or could have been presented from that
evidence alone. That is, the e-mails the State offered as evidence indicated Sampson may
have been at work about 2 hours after the crime. And K.S.A. 22-2318 applies when the
defense offers evidence of an alibi. We need not and do not explore that possibility.

In any event, Sampson must also demonstrate material prejudice to obtain habeas
corpus relief. His challenge falters on that requirement.

The jurors got to review the documents during their deliberations, and his trial
lawyer pointed them out during closing argument. The trial lawyer simply couldn't
connect the dots for the jurors. More importantly, perhaps, the documents did not create
an especially strong alibi. Assuming the jurors accepted them for what they purport to
represent, they merely bracket the time of the crime by a fairly wide margin. In other
words, they, at best, showed Sampson was at work and left before the crime and returned
sometime afterward. They created roughly a 2-hour window during which Sampson was
gone from work and during which the break-in took place. Sampson has presented no
evidence to suggest it would have been unlikely, let alone impossible, for him to have
had time to participate in the break-in if he left work just before 1 a.m. and returned about
2:45 a.m. In short, the alibi is vulnerable on its face.

In addition, of course, there was overwhelming evidence implicating Sampson in
the break-in. Testimony from both Logan and Smith placed Sampson at the center of the
crimes. The testimony of his former girlfriend as to his admission to her was highly
incriminating. Finally, of course, the jury heard from the police detective that Sampson
implicated himself. As we discuss momentarily, Sampson has failed to present a valid
argument that his own statements should have been excluded as evidence at trial.
Accordingly, the trial record strongly supports the jury's verdicts of guilty. Any lawyer
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error limiting the presentation of the weak alibi defense did not materially contribute to
that outcome.

For his other point on appeal, Sampson contends his trial lawyer should have
challenged the admissibility of the statements he gave the law enforcement officers in
November 2007, particularly the second one in which he directly implicated himself in at
least assisting in the break-in and the resulting homicide. By way of background, the
record indicates Sampson was being held temporarily at the state prison in Hutchinson
when he met with the detectives. It is undisputed that Sampson had requested a meeting
with law enforcement agents to share information he had about the break-in and
homicide. Sampson apparently hoped to leverage that information for favorable treatment
of other criminal issues he faced. Details about those issues are not immediately apparent
from the record.

Basically, Sampson says he suffers from bipolar disorder, and he was not given his
usual medications at the prison when he spoke to the detectives. He faults his trial lawyer
for not investigating his mental state at the time the detectives questioned him. At the 60-
1507 hearing, Sampson testified he felt as if he were on "a roller coaster" during the
period he spoke with the detectives and agreed he was "having extreme ups and downs."

A confession given law enforcement officers should be excluded as evidence if the
defendant did not act freely and voluntarily. The ultimate issue is whether the statements
reflect the product of a free and independent will, i.e., did the individual act voluntarily?
See State v. Gilliland, 294 Kan. 519, Syl. ¶¶ 3, 4, 276 P.3d 165 (2012); State v. Stone,
291 Kan. 13, 21, 237 P.3d 1229 (2010); State v. Shumway, 30 Kan. App. 2d 836, 841-42,
50 P.3d 89, rev. denied 274 Kan. 1117 (2002). In short, on a motion to suppress, the
district court must examine the totality of the circumstances surrounding the making of
the statements. Among the factors to be considered in assessing voluntariness are: "(1)
the accused's mental condition; (2) the duration and manner of the interrogation; (3) the
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ability of the accused on request to communicate with the outside world; (4) the accused's
age, intellect, and background; (5) the fairness of the officers in conducting the
interrogation; and (6) the accused's fluency with the English language." Gilliland, 294
Kan. 519, Syl. ¶ 3; see Stone, 291 Kan. at 21. A government agent may induce an
involuntary statement through improper threats of harm, promises of benefit, a
combination of the two, or other undue influence over the suspect. Hutto v. Ross, 429
U.S. 28, 30, 97 S. Ct. 202, 50 L. Ed. 2d 194 (1976); State v. Brown, 286 Kan. 170, 174,
182 P.3d 1205 (2008). If a law enforcement officer exploited a suspect's mental illness or
infirmity, a district court could properly exclude the resulting statement. See United
States v. Preston, 751 F.3d 1008, 1024 (9th Cir. 2014).

Similarly, the State may be barred from introducing a defendant's statement given
law enforcement officers during a custodial interrogation if the defendant could not
understand a Miranda advisory or voluntarily waive his or her Miranda rights. The
general factors guiding the determination of whether a defendant understood and
knowingly waived those rights before speaking with law enforcement officers are the
same as those bearing on the voluntariness of the resulting statement. State v. Mattox, 280
Kan. 473, Syl. ¶ 3, 124 P.3d 6 (2005); State v. Paulson, No. 108,795, 2015 WL 6444314,
at *23 (Kan. App. 2015) (unpublished opinion), rev. denied 304 Kan. ___ (April 21,
2016).

Again we assume without deciding both that Sampson's trial lawyer failed to
investigate the status of Sampson's mental health and specifically his bipolar condition in
November 2007 and that the failure amounted to constitutionally deficient representation.
Sampson has presented no evidence in support of his 60-1507 motion that he incurred
material prejudice as a result. At the hearing, Sampson simply testified that he was on
what he described as an emotional roller coaster when he spoke with the detectives. He
did not testify that he failed to understand what the detectives were saying to him or that
he felt compelled for any reason to answer their questions. Sampson, of course, initiated
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contact with the police in hopes of securing a deal on another criminal matter, suggesting
he was in command of his faculties. The detectives did not seek Sampson out and press
themselves on him.

Moreover, Sampson offered no testimony at the 60-1507 hearing from a
psychiatrist or psychologist to the effect that he likely was in such a decomposed mental
state in November 2007 that he could not comprehend what was going on or could not
have exercised sufficient free will to cut off any questioning. Nothing in the record
developed during the criminal case or in support of the 60-1507 motion suggests any
valid grounds for suppressing Sampson's statements. Accordingly, even if Sampson's trial
lawyer had filed a motion to suppress those statements before trial, the motion would
have been denied. Sampson can show no prejudice, since the trial evidence would have
been unchanged.

Having reviewed the issues Sampson has raised on appeal, we find no error in the
district court's ultimate conclusion in denying the 60-1507 motion.

Affirmed.