Schumacher v. State

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NOT DESIGNATED FOR PUBLICATION

No. 114,969

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TODD D. SCHUMACHER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wichita District Court; ROBERT J. FREDERICK, judge. Opinion filed February 10,
2017. Affirmed.

William K. Rork and Matthew R. Williams, of Rork Law Office, of Topeka, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., GREEN, J., and BURGESS, S.J.

Per Curiam: Todd D. Schumacher moved for relief under K.S.A. 60-1507,
arguing that the prosecutor at his jury trial violated his rights under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. The trial court
summarily denied his K.S.A. 60-1507 motion for two reasons. First, the trial court held
that Schumacher's argument was barred under the doctrine of res judicata. Second, the
trial court held that Schumacher had failed to plead persuasive exceptional circumstances
allowing him to collaterally attack the alleged trial error under K.S.A. 60-1507. On
appeal, Schumacher argues that the trial court erred because his argument was not barred
under the doctrine of res judicata, his exceptional circumstances arguments were
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persuasive, and his underlying Confrontation Clause violation argument was meritorious.
Nevertheless, all of Schumacher's arguments are unpersuasive. As a result, we affirm the
trial court's summary denial of Schumacher's K.S.A. 60-1507 motion.

In State v. Schumacher, 298 Kan. 1059, 1060-66, 322 P.3d 1016 (2014), our
Supreme Court explained the underlying facts of Schumacher's first-degree premeditated
murder trial and conviction as follows:

"[T]he evidence presented at Schumacher's trial showed that on March 22, 2010,
Schumacher learned that his ex-wife Ann was seeking child support and full custody of
two of the couple's three children. The following morning, Schumacher went to Ann's
home before the children left for school. Schumacher had a brief conversation with Ann
at the door of the home before pulling a gun out of his jacket and firing it at Ann, killing
her instantly as their 15-year-old daughter watched nearby. Afterward, Schumacher drove
to the Wichita County Sheriff's Office and turned himself in. More specifically, the
evidence presented at trial showed as follows.
. . . .
"At the time of these events, Schumacher and Ann's 17-year-old daughter,
Megan, lived with Schumacher. Megan testified that on the evening of March 22, 2010,
her aunt, Laura Schumacher, called to tell her that Schumacher was upset and drunk and
had threatened to kill Ann. But Megan testified, '[Laura] said that [Schumacher] stated
that, but I don't know. He just was really upset about what had happened.' Nevertheless,
Megan sent a text message to a cousin that evening: 'Well, I guess mom filed for full
custody and dad is going to kill her.'
"When Megan woke up on the morning of March 23, 2010, she saw that
Schumacher had sent her a text about 2 a.m. as he was leaving Gerstberger's home. In the
text, Schumacher told Megan she was his 'everything' and he loved her. Schumacher was
not home when Megan got up that morning.
"Schumacher and Ann's 15-year-old daughter, M.S., testified that she and her
brother were both still at Ann's home when Schumacher arrived the morning of the
shooting. As M.S. prepared to go to a neighbor's home where she had a ride to school,
she saw Schumacher just outside the front door talking to Ann. M.S. heard her parents
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arguing and decided to stay in the living room where she sat on the arm of a chair so she
could still see her parents.
"During the confrontation between her parents, M.S. recalled that she had a small
camera in her pocket. M.S. knew a custody battle was pending so when she heard
Schumacher making false statements, she held the camera by her side and turned on the
its video function.
"M.S. heard Ann tell Schumacher that he was harassing her, and Schumacher
replied, '[S]o this is harassment[?]' Ann responded, '[Y]eah, this, this is harassment.'
According to M.S., at this point Schumacher unzipped his jacket, stepped forward into
the house, put his hand on Ann's shoulder, and pressed a gun underneath her chin. Ann
gasped, and the gun fired. M.S. testified Ann immediately fell to the floor. Schumacher
then went to his pickup and 'after awhile he drove off.'
"The State admitted M.S.'s video and played it for the jury. M.S. testified she did
not 'flaunt' the camera, so the focus darts around the room and the audio is partially
obscured as M.S. apparently covers or scrapes the microphone. The State introduced, and
the district court admitted, multiple copies of the recording, including an enhanced,
audio-only version intended to reduce background noise.
"The video shows Ann standing just inside the front door speaking to
Schumacher, who cannot be seen. At one point, Ann says to Schumacher, 'I'm not going
to get into it,' to which Schumacher replies, 'Well, you can't hang up the phone now. You
can't file phone harassment charges on me.' Ann then asks, 'Why?' The next few
statements are inaudible until Ann sighs and clearly says, 'Wow, what an example you're
being for your kids right now.' After a few moments of unintelligible conversation,
Schumacher then says, 'Here's your fucking example, right here.' Ann gasps, and the gun
can be heard firing. In the last portion of the recording, the two children can be heard
screaming and clamoring as they try to help Ann.
"The 911 dispatcher for the area testified that she received a call from M.S. at
8:18 a.m. and sent law enforcement to Ann's address. Four minutes later, Schumacher
walked into the sheriff's office where the dispatcher sat, threw up his hands, said, 'Call
[the sheriff], I'm here,' and then sat down in a chair. The dispatcher testified that at one
point before the undersheriff arrived and took Schumacher into custody, Schumacher
chuckled.
"Jamie Oeberst, M.D., the chief medical examiner at the Sedgwick County
Regional Forensic Science Center, examined Ann and determined that a single gunshot
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wound to her neck and head caused her death. Based on the stippling, or gunpowder
deposited on the body, Dr. Oeberst determined the shot that killed Ann was fired from a
distance of only 1 to 3 feet.
. . . .
"Case agent John Nachtman testified he photographed the scene of the shooting
and collected, viewed, and enhanced the video from M.S.'s camera. Nachtman also
searched the vehicle Schumacher normally drove and found a Smith and Wesson .22
caliber gun, ammunition for the Smith and Wesson, and a case for a Ruger revolver that
used .357 caliber ammunition.
"KBI firearm and tool mark examiner Zachary Carr testified about his
examination of the Ruger and explained that in order to fire the weapon, 'the hammer has
to be manually pulled to the rear to cock it' and then 'the trigger has to be moved
rearward.' He later emphasized, 'This firearm will not fire unless this hammer is pulled
back. You can pull the trigger all you want, nothing will happen.' Further, Carr testified
that approximately 3 3/4 pounds of pressure is required to pull the trigger.
"Carr further testified his examination of the bullet fragments taken from Ann's
body showed they were fired from the Ruger found in Schumacher's pickup. At defense
counsel's urging, Carr provided gloves so jurors could examine the Ruger during
deliberation.
"Schumacher testified in his own defense and initially discussed several events
preceding Ann's shooting. Schumacher explained that after he and Ann divorced, they
initially shared custody, with the children living with him for a month and then with Ann
for a month. According to Schumacher, because of the stress of the divorce and his
farming operation, his mental health deteriorated in 2009. Schumacher testified that in
December 2009, his friend Troy Wright found Schumacher in his pickup with the Ruger
cocked. According to Schumacher, he had twice raised the gun to his own temple but
could not pull the trigger. After this incident, Schumacher spent several days in the
Greeley County Hospital.
"Schumacher further testified that on another unspecified occasion he tried to
commit suicide by taking medication and drinking alcohol but Laura found him alive.
Further, he solicited quotations for life insurance policies to provide for his children
because he 'wasn't going to be around.'
"Schumacher conceded that he was upset when he received the custody
paperwork from Ann on March 22, 2010, but he claimed he did not remember threatening
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Ann. He said he was drunk that day, and after he left [a friend's] home, he went to his
own home and looked at some bills, which further depressed him because for quite some
time he had been borrowing $3,000 a month to cover his personal and farming operation
expenses.
"Schumacher decided to kill himself with 'one special bullet,' a single shot from
his Ruger. According to Schumacher, he purchased both the special bullet and the Ruger
from his college roommate and he always kept the Ruger cocked and with him because of
a fear that he would get trapped in a fiery car accident and not be able to get out.
"Schumacher testified he initially went to a pasture to kill himself but then
decided that Ann should know what she was doing to him, so he decided to go to her
house and shoot himself on the front porch after the kids had left for school. Schumacher
realized when he arrived at Ann's home that his son and daughter had not left for school.
Nevertheless, he claimed that since he had made up his mind to kill himself, he did not
leave. Schumacher testified that when he 'went to shoot' himself, he heard a bang and
realized what happened, so he walked away to turn himself in. Schumacher denied that he
intended to kill Ann."

Additionally, several witnesses corroborated that Schumacher had suicidal
tendencies. Nevertheless, Schumacher's girlfriend, sister-in-law, and friend, who all
spoke with Schumacher the day before he killed Ann, testified that Schumacher had told
them that he planned on killing Ann because of the custody situation.

The jury ultimately convicted Schumacher of first-degree premeditated murder
and endangering a child. The trial court sentenced Schumacher to a controlling sentence
of 25 years to life imprisonment.

On direct appeal to our Supreme Court, Schumacher raised many issues, including
whether the trial court erred by denying his new trial motion because the prosecutor
committed misconduct during closing arguments. Our Supreme Court analyzed
Schumacher's prosecutorial misconduct argument as follows:

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"[W]e consider Schumacher's argument that the prosecutor committed misconduct in
suggesting the jury compare the sound of the gun cocking to the clicking sound heard on
the video just before the shooting. Schumacher contends this was error because the State
failed to establish through expert testimony that the sound the jury heard on the video
was the same sound made when the prosecutor cocked the gun in open court during his
rebuttal.
"The prosecutor devoted much of his rebuttal closing argument to discussing and
replaying the video taken by M.S. and arguing the video contains an audible 'click,' which
the prosecutor asserted was the sound of Schumacher cocking the gun. More specifically,
the prosecutor argued the sound of a cocking gun is 'very distinctive,' and he cocked the
weapon a total of nine times throughout his rebuttal argument. At one point, Schumacher
objected, arguing that the prosecutor's assertion that the click heard on the video was the
sound of Schumacher's gun cocking was a fact not in evidence.
"We have reviewed the videos and note that the unenhanced video does contain
an audible 'click' about 45 seconds into the video in the middle of a statement made by
Schumacher just moments before he shoots Ann: 'Here's your fucking example, [click],
right here.'
"Preliminarily, we note that Schumacher's argument appears to be premised on
two inaccuracies. First, Schumacher emphasized that because the audio had been
enhanced, the State should have been required to put on expert testimony to compare the
two sounds. But a review of the recordings reveals that the clicking noise is distinctly
more audible on the unenhanced version of the recording than on the enhanced version,
which was designed to eliminate background noises and highlight the conversation
between Schumacher and Ann.
"Second, Schumacher's argument is based in part on the fact that the prosecutor
was the first person to demonstrate in open court the sound of the gun cocking. However,
citing to the transcript, the State suggested in its response brief that defense counsel first
cocked the gun for the jury during his closing argument. When questioned by this court
during oral argument about the State's assertion, Schumacher's appellate counsel, who
also was his trial counsel, adamantly denied that he had done so, exclaiming, 'No way did
I cock that gun. Absolutely, positively not.'
"But our review of the record reveals that the State is correct. Despite his strong
denial, defense counsel did in fact cock the gun for the jury during his closing argument
and did so prior to the prosecution cocking the gun. Specifically, while explaining how
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Dr. Oeberst's and Carr's testimonies supported Schumacher's accidental shooting defense,
defense counsel said, 'If I want to kill somebody and I'm standing there on the front porch
. . . and I pull out a gun and it is already cocked, (cocking gun), no matter [what] . . . it
has to be up, gun up.' Further, it was defense counsel who suggested the jurors be given
gloves so that they could examine the gun and operate it themselves.
"Thus, as the State points out, before the prosecutor ever cocked the gun for the
jury and asked the jury to listen to the sound of the click, the gun had been cocked by
defense counsel. Further, the video in which the clicking sound can be heard had been
played for the jury and introduced into evidence. Thus, the real issue is whether the
prosecutor commented on a fact not in evidence by asking the jury to compare two
sounds in evidence.
"Our caselaw does not support Schumacher's suggestion that the prosecutor
asked the jury to draw an inference 'akin to a scientific conclusion' by asking it to find
that the clicking sound heard on the recording was the sound of the gun being cocked.
[Citations omitted.]
"Similarly, the facts of this case are not comparable to circumstances in which
we have found that the prosecutor commented on or stated facts not in evidence.
[Citations omitted.]
"Instead, the prosecutor here simply asked the jury to compare the sound heard in
the courtroom with the sound on the video. Further, the prosecutor reminded the jury it
could 'decide what that sound [on the video] is.' Under these circumstances, we find the
trial court correctly concluded that the prosecutor fairly commented on the evidence and
did not commit misconduct when he suggested that the clicking sound heard when the
gun was cocked was the same clicking sound heard on the video just prior to Schumacher
shooting Ann." Schumacher, 298 Kan. at 1070-72.

On April 27, 2015, Schumacher moved for relief under K.S.A. 60-1507. In his
memorandum in support of the K.S.A. 60-1507 motion, Schumacher emphasized that
whether his gun was cocked before he shot and killed Ann was a material fact in dispute
at trial. Again, at trial, Schumacher had argued that the gun was already cocked, meaning
that the clicking sound heard on the recordings was not the sound of him cocking the gun.
According to Schumacher, the alleged fact that his gun was already cocked increased the
likelihood that he accidently shot Ann.
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In his K.S.A. 60-1507 motion, Schumacher reemphasized that the State never
presented expert testimony regarding whether the click sound heard on the recordings
was actually the sound of him cocking the gun. Schumacher asserted that because there
was no expert testimony, he was unable to cross-examine any expert on whether the click
was actually the sound of the gun being cocked. Schumacher argued that the prosecutor's
statement about the click on the recordings being the sound of his gun cocking was
misconduct, which "resulted in a violation of his Sixth Amendment right to confront
witnesses." Schumacher alleged that "the prosecutor's misconduct so infected the trial
with unfairness as to make the resulting conviction a denial of due process." Schumacher
further recognized that he was raising a trial error that required him to plead exceptional
circumstances. Schumacher asserted that exceptional circumstances existed because our
Supreme Court erred in deciding his direct appeal.

The State responded that the trial court should summarily deny Schumacher's
K.S.A. 60-1507 motion without an evidentiary hearing under the doctrine of res judicata.
The State asserted that Schumacher had raised the same prosecutorial misconduct
argument in his direct appeal. The State further responded that there were no exceptional
circumstances allowing Schumacher to make his trial error challenge under K.S.A. Last,
the State emphasized that the trial court was not in a position to overrule our Supreme
Court's rulings regarding the absence of prosecutorial misconduct.

Schumacher countered that his motion was not barred under the doctrine of res
judicata because he was raising a different legal claim. Schumacher argued that "instead
of prosecutorial misconduct, [he was] rais[ing] a violation of his Sixth Amendment right
to confront witnesses." Schumacher denied that he alleged prosecutorial misconduct in
his original motion. Schumacher argued that the prosecutor violated his Sixth
Amendment right to confront witnesses by making the comment about the clicking sound
in the recordings being the sound of him cocking the gun. He also reiterated his
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arguments regarding why exceptional circumstances to consider his trial error challenge
under K.S.A. 60-1507 existed.

On November 5, 2015, the trial court summarily denied Schumacher's K.S.A. 60-
1507 motion. The trial court found that Schumacher had "completely ignore[d] [] that a
direct appeal was taken by him, and [his] claim [was] one that he either did raise, or
could have and should have raised." Thus, the trial court held that Schumacher's motion
was barred under the doctrine of res judicata. The trial court further held that
Schumacher's arguments regarding why exceptional circumstances existed failed and
were barred under the doctrine of stare decisis. Then, the trial court adopted the State's
arguments and analysis in response to Schumacher's K.S.A. 60-1507 motion.

Did the Trial Court Err by Summarily Denying Schumacher's K.S.A. 60-1507 Motion?

Schumacher's argument on appeal has three parts. First, Schumacher argues that
his claim concerning the alleged Confrontation Clause violation is not barred under the
doctrine of res judicata because, unlike in his direct appeal, he is not arguing that the
prosecutor made a statement of fact not in evidence that constituted prosecutorial
misconduct. Second, he concedes that he is using his K.S.A. 60-1507 motion as a vehicle
to challenge a trial error, but he argues that exceptional circumstances exist allowing him
to do so. Specifically, Schumacher argues that our Supreme Court's findings and rulings
in his direct appeal were so errant that exceptional circumstances exist. Third, he
contends that his underlying arguments about the alleged Confrontation Clause violation
have merit.
Standard of Review

Following the summary denial of a K.S.A. 60-1507 motion, an appellate court
exercises de novo review over whether the motions, files, and records of the case
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conclusively establishes that the movant is not entitled to relief. Sola-Morales v. State,
300 Kan. 875, 881, 335 P.3d 1162 (2014).

Res Judicata

"The doctrine of res judicata is a common-law rule of equity grounded in both
notions of justice and in sound public policy, each of which demands that a party not be
vexed with litigation twice on the same cause." Cain v. Jacox, 302 Kan. 431, 434, 354
P.3d 1196 (2015). "[T]he res judicata doctrine applies when a party collaterally attacks a
judgment or brings a second action arising from the same facts or circumstances against
one (or more) of the original parties." State v. Kleypas, 305 Kan. 224, 244, 382 P.3d 373
(2016). Four conditions must exist before a claim can be barred as res judicata: (1) same
claim; (2) same parties; (3) claims that were actually raised or could have been raised in a
prior proceeding; and (4) a final judgment on the merits. Cain v. Jacox, 302 Kan. at 434.
"[W]hen a criminal defendant files a direct appeal from his or her conviction and
sentence, 'the judgment of the reviewing court is res judicata as to all issues actually
raised; those issues that could have been presented, but were not presented, are deemed
waived.'" Woods v. State, 52 Kan. App. 958, 965, 379 P.3d 958 (2016) (quoting Drach v.
Bruce, 281 Kan. 1058, Syl. ¶ 12, 136 P.3d 390 [2006]).

Schumacher argues that res judicata does not bar his K.S.A. 60-1507 claim
because the legal claim he now raises is not the same as the legal claim he raised on
direct appeal. Schumacher argues that he is not challenging whether the prosecutor
committed misconduct. Instead, he argues that he is challenging whether the prosecutor
violated his right to confront witnesses under the Sixth Amendment to the United States
Constitution by making the statement that the clicking sound heard on the recording was
the sound of his gun cocking. Schumacher explains that the prosecutor's statement
violated the Confrontation Clause because it was a statement of fact, not supported by "an
expert firearm witness" or any other evidence at trial, meaning he had no ability to
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confront this statement of fact through cross-examination. Schumacher contends that this
claim is not the same as his claim on direct appeal because "a claim of prosecutor
misconduct based on the prosecutor's comment stating a fact not in evidence is not the
same as confrontation issues."

The State counters that the trial court correctly ruled that Schumacher's claim was
barred under the doctrine of res judicata. The State points out that on direct appeal
Schumacher challenged whether the prosecutor's statement regarding the clicking and
gun cocking sounds constituted misconduct because the "statement amounted to facts not
in evidence." Alternatively, the State argues that Schumacher's K.S.A. 60-1507 claim
about prosecutorial misconduct resulting in a Confrontation Clause violation could have
and should have been raised in his direct appeal.

The State is correct. To begin with, although Schumacher asserts that he is not
raising a claim of prosecutorial misconduct, this unappealing technicality is incorrect. In
his K.S.A. 60-1507 motion, Schumacher explicitly stated that his claim was as follows:

"Schumacher maintains, as he did on direct appeal, [that] prosecutorial
misconduct deprived him of a fair trial. Schumacher additionally contends prosecutorial
misconduct, which occurred during the closing arguments, resulted in a violation of his
Sixth Amendment right to confront witnesses, and the prosecutor's misconduct so
infected the trial with unfairness as to make the resulting conviction a denial of due
process."

It was only after the State responded to Schumacher's K.S.A. 60-1507 motion, arguing
that his claim of prosecutorial misconduct was barred by res judicata, that Schumacher
abruptly discarded his prosecutorial misconduct claim. Indeed, after the State's response,
Schumacher emphasized that his claim involved a Confrontation Clause violation, not
prosecutorial misconduct.

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Yet, even on appeal, despite Schumacher's best efforts to advance his supposed
technicality between the prosecutorial misconduct claim and the Confrontation Clause
claim, it is evident that his claim still turns on the existence of prosecutorial misconduct.
For instance, in his appellant's brief, he contends that the "[s]tatements made by [the]
prosecutor during his summation, which present[ed] a fact not shown by the evidence,
den[ied] the essential right of confrontation." (Emphasis added.) See State v. Carter, 278
Kan. 74, 80, 91 P.3d 1162 (2004) (holding that a statement by a prosecutor on a fact not
in evidence constitutes misconduct).

Thus, Schumacher's K.S.A. 60-1507 argument has two parts. The first part of his
argument is that the prosecutor committed misconduct by comparing the clicking sound
on the recording and the sound of his gun cocking because this was a fact not in evidence.
The second part is that the misconduct led to a Confrontation Clause violation because he
"was unable to confront" the prosecutor's statements about the sounds because the
statement was about a fact not in evidence. This means that Schumacher cannot make his
Confrontation Clause violation argument without first successfully making his
prosecutorial misconduct argument. Stated another way, Schumacher's Confrontation
Clause argument can succeed only if the prosecutor committed misconduct by making a
statement on a fact not in evidence.

As set out in the facts section of this opinion, however, Schumacher challenged
whether the prosecutor's statement about the sounds constituted misconduct in his direct
appeal. Schumacher, 298 Kan. at 1069. Schumacher asserted that the prosecutor's
statement constituted misconduct, in part, because no expert testimony was presented to
establish the sound of the click on the recordings was the same as the sound of his gun
being cocked. He argued that this meant the prosecutor made a comment on a fact not in
evidence resulting in misconduct. Our Supreme Court rejected this argument because it
determined that the prosecutor never made a statement of fact not in evidence.
Schumacher, 298 Kan. at 1070, 1072.
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Accordingly, while Schumacher did not raise the second part of his current K.S.A.
60-1507 claim—the Confrontation Clause violation argument—on direct appeal, he did
raise the first part of his K.S.A. 60-1507 claim—the prosecutorial misconduct based on
making a statement of fact not in evidence argument—in his direct appeal. This means
that the first part of Schumacher's K.S.A. 60-1507 claims involves the same parties and
the same prosecutorial misconduct claim that he actually raised in his direct appeal,
which was rejected by our Supreme Court. Thus, all of the elements of res judicata exist.
Consequently, the first part of Schumacher's K.S.A. 60-1507 claim—the prosecutorial
misconduct based on making a statement of fact not in evidence argument—is barred. In
turn, the second part of Schumacher's K.S.A. 60-1507 claim—the Confrontation Clause
argument—is also barred under the doctrine of res judicata because this argument hinges
on Schumacher successfully establishing the first part of his claim.

Finally, as stated earlier, in res judicata, the first judgment is conclusive, not only
on all matters which were actually raised, but also on all matters which could have been
raised. Schumacher's argument that there was a Confrontation Clause violation is
premised on his belief that the prosecutor made a statement of fact not in evidence, which
was the same argument that he raised in his direct appeal. Thus, Schumacher could have
and should have raised his Confrontation Clause argument in his direct appeal. As a
result, his argument is barred under the doctrine of res judicata.

Affirmed.