Webster v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,096

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DAVID TAYLOR WEBSTER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed June 16,
2017. Affirmed.

Ian T. Otte, of Herlocker, Roberts & Herlocker, L.L.C., of Winfield, for appellant.

Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON and BRUNS, JJ.

Per Curiam: After an evidentiary hearing, the Cowley County District Court
denied David Taylor Webster's habeas corpus challenge to his conviction for intentional
second-degree murder, finding his lawyer competently represented him in the criminal
jury trial. The district court found that the lawyer representing Taylor made a reasonable
tactical decision in advising Webster not to testify to a self-defense scenario that
conflicted with an earlier account of the incident he had given law enforcement officers.
During the trial, Webster agreed with that advice and chose not to testify. Webster now
contends he received constitutionally deficient legal representation during the trial as a
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result. As we explain, we disagree and, therefore, affirm the district court's ruling denying
Webster relief under K.S.A. 60-1507.

In late March 2009, Webster argued with his live-in girlfriend at their home. Their
argument became heated. Webster struck the woman and strangled her to death. He then
hid the body at another location. At the insistence of his girlfriend's adult daughter,
Webster made a missing person's report with the local police the next day. The officer
taking the report questioned that version of events because he saw the woman's purse,
keys, and car at the residence.

Alerted that Webster and his girlfriend had been upset with each other, a detective
then spoke with Webster. Webster initially told the detective that he and his girlfriend
argued and made up. He said he had no idea where his girlfriend had gone. A short time
later, Webster called the detective to set up another meeting. At that meeting, Webster
told the detective his girlfriend had physically attacked him, furiously punching him and
kicking him. According to Webster's account, he "snapped" as he fought back—only to
realize after he had regained his senses that he had strangled his girlfriend. Webster then
showed law enforcement officers where he had taken the body.

The State charged Webster with intentional first-degree murder. Webster and his
court-appointed lawyer later met with the detective and the county attorney. During that
meeting, Webster said that his girlfriend had attacked him with a hunting knife and he
acted in self-defense.

During the jury trial in January 2010, the prosecutor presented the statement
Webster gave the detective shortly after the killing in which he confessed to having
snapped while fending off his girlfriend's assault. Webster chose not to testify in his own
defense. Outside the presence of the jury at the conclusion of the State's case, the district
court informed Webster that he had the right to testify or not and the decision was his to
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make personally, taking into account his lawyer's advice. The district court also told
Webster that if he testified the prosecutor could cross-examine him. Webster asked for
time to visit with his lawyer. The jurors had already been excused for lunch, so Webster
spoke with his lawyer during that break. Following the recess but before the jurors
reassembled in the courtroom, Webster told the district court he did not intend to testify.

The district court instructed the jury on intentional first-degree murder and the
lesser offenses of intentional second-degree murder and voluntary manslaughter based
upon a killing done in the heat of passion. The jury returned a verdict on the fourth day of
trial finding Webster guilty of second-degree murder. At a later hearing, the district court
sentenced Webster to serve 285 months in prison. This court affirmed the verdict and
sentence on direct appeal. State v. Webster, No. 104,908, 2012 WL 2148165 (Kan. App.
2012) (unpublished opinion), rev. denied 296 Kan. 1136 (2013).

Webster timely filed a motion with the district court for habeas corpus relief, as
provided in K.S.A. 60-1507, alleging constitutional defects in the criminal proceedings,
including the trial. The district court appointed a new lawyer to represent Webster and in
June 2014 held an evidentiary hearing on the motion. Webster and his trial lawyer in the
criminal case were the only witnesses at the hearing. On September 23, the district court
issued a detailed memorandum opinion denying Webster's 60-1507 motion. Webster has
appealed the denial of his motion, and that is what we have before us.

On appeal, Webster contends his trial lawyer provided constitutionally deficient
representation by not more vigorously pursuing self-defense during the jury trial. Before
analyzing that issue, we set out legal principles guiding review of habeas corpus
challenges on appeal.

Procedurally, when the district court conducts an evidentiary hearing, we evaluate
the district court's rulings using a bifurcated standard that accords deference to findings
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of fact supported by substantial evidence and reserves unlimited review of legal
conclusions. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015); Bellamy v. State,
285 Kan. 346, 353, 354-55, 172 P.3d 10 (2007).

Substantively, a criminal defendant has the right to competent legal representation
as guaranteed in the Sixth Amendment to the United States Constitution. A colorable
claim of constitutionally inadequate legal representation presents an exceptional
circumstance warranting review of a criminal conviction, as provided in K.S.A. 60-1507,
even though the defendant has unsuccessfully challenged the conviction on direct appeal.
See Bledsoe v. State, 283 Kan. 81, 88-89, 150 P.3d 868 (2007). To obtain relief under 60-
1507, the movant must show his or her representation in the direct criminal case both fell
below an objective standard of reasonableness and resulted 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 State v.
Betancourt, 301 Kan. 282, 306, 342 P.3d 916 (2015) (restating Strickland test and citing
Chamberlain in assessing constitutionally inadequate legal representation in context of
new trial motion). As the United States Supreme Court and the Kansas Supreme Court
have explained, 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 treated as 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
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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, 111, 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).

The district court accepted the trial lawyer's hearing testimony regarding his
representation where there were conflicts with Webster's testimony. We are mindful of
that implicit credibility determination and do not tread upon it in our review. Webster's
trial lawyer plainly considered and evaluated a self-defense defense and discussed that
evaluation with Webster. Ultimately, the lawyer recommended against it, and Webster
followed that recommendation, as reflected in his decision not to testify at trial.

The lawyer concluded the jurors would be unlikely to accept Webster's self-
defense account in which his girlfriend ostensibly attacked him with a hunting knife.
First, the lawyer explained that Webster's self-defense version of the killing obviously
conflicted with how he explained the incident to law enforcement officers just after it
happened—the hunting-knife scenario emerged only after he had been charged. The
prosecutor would undoubtedly exploit such a major inconsistency to undermine
Webster's credibility in the eyes of the jurors. The lawyer also thought jurors would reject
that account because there was no independent evidence of a hunting knife. None of the
photographs of the crime scene showed a knife, and such a weapon wasn't mentioned in
any law enforcement reports.

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Moreover, killing someone by manual strangulation is difficult to square with self-
defense. The mechanism of death takes a considerable amount of time, and the victim is
rendered unconscious—and, thus, no longer a threat—well before the continued
application of force and loss of oxygen becomes fatal.

Those difficulties undercut an essential factual predicate for Webster's assertion of
self-defense or even imperfect self-defense as a form of voluntary manslaughter. That is,
the jurors could readily conclude there was no knife, so Webster could not have been
attacked with it.

The lawyer believed the stronger defense wove Webster's original account about
snapping into a mitigating circumstance that could lead the jurors to entertain doubts the
killing was premeditated—an element of the first-degree murder charge—or could lead
them to conclude the homicidal impulse was the product of heat of passion, supporting a
voluntary manslaughter verdict.

The lawyer also leaned against self-defense because it would be inconsistent with
those mitigating considerations. Self-defense entails a calculated decision that a situation
poses an immediate danger of great bodily injury or death necessitating a forceful
response that itself may leave the aggressor seriously wounded or dead. So a person
acting in self-defense intentionally kills with premeditation. The law, however, excuses
or justifies the killing because the person legitimately acts to protect himself or herself.
That state of mind is not considered criminally blameworthy and, if accepted, absolves
the person of guilt. See State v. Waller, 299 Kan. 707, 721, 328 P.3d 1111 (2014); State
v. Staten, No. 108,305, 2015 WL 423644, at *23 (Kan. App. 2015) (unpublished opinion)
(Atcheson, J., dissenting), aff'd 304 Kan. 957, 377 P.3d 427 (2016). If the jurors were to
reject Webster's evidence about his state of mind, they would be left to consider physical
acts that would satisfy the elements of first-degree murder—an intentional killing done
with premeditation. K.S.A. 21-3401; see Waller, 299 Kan. at 721.
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The lawyer testified that he discussed those strategic ramifications of a self-
defense defense with Webster and recommended against that approach to the jury trial.
According to the lawyer, Webster concurred with that assessment and, therefore, chose
not to testify.

In its memorandum opinion, the district court found the lawyer made a carefully
considered strategic recommendation that Webster accepted. On that basis, the district
court concluded that the lawyer had provided constitutionally adequate representation to
Webster. Accordingly, Webster could not establish an essential part of his habeas corpus
claim. We haven't anything of significance to add to the district court's assessment on that
score. The lawyer made a reasoned and reasonable strategic decision about how to defend
Webster against the first-degree murder charge. And, although it is not strictly speaking
part of the Strickland analysis, the strategy proved to be somewhat successful in that
Webster was acquitted of the most serious charge. He received a comparatively long
presumptive sentence on the lesser second-degree murder conviction largely because of
his criminal history. Because the trial strategy was constitutionally reasonable, we need
not and do not address the prejudice component of Webster's 60-1507 claim.

In short, Webster has failed to show that he was inadequately represented in his
jury trial. His trial lawyer acted well within the range of constitutional reasonableness in
weighing self-defense and advising Webster of the potential hazards of pursuing that
strategy in front of the jury. Webster, therefore, cannot meet the legal requirements for
relief under K.S.A. 60-1507.

Affirmed.