IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 97,652
LISA BOLDRIDGE,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1. The Sixth Amendment to the United States Constitution guarantees in all criminal prosecutions that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." This Sixth Amendment right to counsel is made applicable to state proceedings by the Fourteenth Amendment to the Constitution. The right to counsel guaranteed by these provisions is the right to effective assistance of counsel.
2. A defendant in a criminal trial has a constitutional right to representation that is free from conflicts of interest.
3. Allegations of ineffective assistance of counsel, whether based on claims of deficient performance or on a conflict of interest, involve mixed questions of fact and law. This court therefore reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.
4. To demonstrate that a conflict of interest resulted in ineffective assistance of counsel, a defendant has the burden of proving that a conflict of interest affected the adequacy of the attorney's representation. A defendant who can demonstrate that a conflict of interest affected the adequacy of his or her counsel's representation need not demonstrate prejudice in the traditional sense, which requires the defendant to prove that counsel's deficient performance affected the outcome of the trial, due to the difficulty of establishing such a claim in cases based on conflicting loyalties.
5. Under the Code of Judicial Conduct, Rule 601A, Application of Code D(3) (2008 Kan. Ct. R. Annot. 675), a pro tempore part-time judge should not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto except as otherwise permitted by the Kansas Rules of Professional Conduct (KRPC) 1.12(a) (2008 Kan. Ct. R. Annot. 487).
6. Under KRPC 1.12(a) (2008 Kan. Ct. R. Annot. 487), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or any other adjudicative officer or law clerk to such a person as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceedings give informed consent confirmed in writing.
7. Structural error only occurs in very limited circumstances where errors defy analysis by harmless-error standards because they affect the framework within which the trial proceeds.
8. A person does not have standing to challenge an inquisitional subpoena for phone records because that person does not have a reasonable expectation of privacy in his or her phone records.
9. To support a claim of ineffective assistance of counsel, a defendant must demonstrate (1) that counsel's performance was deficient and (2) that counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. The benchmark for judging any claim of ineffectiveness as to counsel's performance must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
10. An appellate court reviews a district court's admission or exclusion of hearsay statements for an abuse of discretion. A district court always abuses its discretion when its decision goes outside the legal framework or fails to properly consider statutory limitations. For this reason, appellate courts review de novo whether a district court applied the correct legal standards when ruling on the admission or exclusion of evidence.
11. The theory behind the hearsay rule is that when a statement is offered as evidence of the truth asserted in it, the credibility of the asserter is the basis for the inference and therefore the asserter must be subject to cross-examination.
12. Evidence of an out-of-court statement that is not being offered to prove the truth of the matter stated is not hearsay under K.S.A. 60-460.
13. Judicial scrutiny of counsel's performance when reviewing a claim for ineffective assistance of counsel must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.
14. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his or her client.
Review of the judgment of the Court of Appeals in an unpublished opinion filed June 13, 2008. Appeal from Atchison district court; PHILIP C. LACEY, judge. Judgment of the Court of Appeals affirming the district court on the issues subject to our grant of review is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions to the district court. Opinion filed September 11, 2009.
Jean K. Gilles Phillips, of Paul E. Wilson Defender Project, University of Kansas School of Law, of Lawrence, argued the cause and was on the briefs for appellant.
Rex L. Lane, special prosecutor, of Atchison, argued the cause, and Paul J. Morrison, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, C.J.: Lisa Boldridge's first-degree murder conviction and hard-50 sentence were affirmed by this court on direct appeal. State v. Boldridge, 274 Kan. 795, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003). Her case comes before us again on our grant of Boldridge's petition for review of the Kansas Court of Appeals' decision regarding her K.S.A. 60-1507 motion. A divided panel of the Court of Appeals affirmed the district court's denial of her motion regarding ineffective assistance of trial counsel, finding that Boldridge was adequately represented by counsel during the trial of her case. Boldridge v. State, No. 97,652, unpublished opinion filed June 13, 2008. Judge Greene dissented, explaining that he interpreted the record to demonstrate "multiple and egregious errors of trial counsel [that] truly undermined [his] confidence in the outcome of Lisa Boldridge's trial." Boldridge, slip op. at D-1 (Greene, J., dissenting). We granted Boldridge's petition for review, which only raised issues of ineffective assistance of counsel at trial. We now reverse the decision of the Court of Appeals affirming
the district court on the issue involving the admissibility of hearsay evidence, reverse the decision of the district court on that same issue, affirm both courts on the other claims regarding ineffective assistance of counsel at trial, and remand the case with directions to the district court for further proceedings consistent with our opinion.
We note that the Court of Appeals also held that Boldridge was inadequately represented by counsel at sentencing. Based on this conclusion, the Court of Appeals vacated Boldridge's sentence and remanded her case to the district court for resentencing. Slip op. at 19-20. The question of inadequacy of counsel at sentencing is not before us, and the decision of the Court of Appeals is final as to Boldridge's arguments relating to her attorney's performance at sentencing. Boldridge's sentence is therefore vacated. If the district court determines on remand that Boldridge is not entitled to a new trial, she must be resentenced in accordance with the Court of Appeals opinion.
In her petition for review, Boldridge claims that her constitutional right to counsel at trial was violated in a number of ways.
First, Boldridge contends she was given inaccurate legal advice by her trial counsel, Charles Tuley, that violated her right to effective assistance of trial counsel. In particular, Boldridge asserts Tuley did not understand that his client could be convicted as an aider and abettor if she was charged in the complaint as a principal. Boldridge alleges that, based on this misunderstanding, Tuley advised her to waive her right to a jury trial, as the court would better comprehend this legal argument. Boldridge also claims this advice by counsel caused her to forego a change of venue granted by the trial court since she was planning on having a bench trial; instead, her trial took place in Atchison County where the killing had occurred.
In addition to her claims regarding counsel's inaccurate legal advice, Boldridge claims counsel's performance at trial was constitutionally defective because he failed to rebut evidence of her prior convictions with information regarding the long history of domestic abuse inflicted on her by her former husband (the victim of the underlying murder). She also claims her counsel's cross-examination of the prosecution's star witness was constitutionally deficient and denied her a fair trial.
Boldridge also contends her trial counsel could not provide constitutionally effective performance because he labored under actual conflicts of interest that divided his loyalties. Finally, Boldridge claims cumulative error denied her right to a fair trial.
Trial Counsel's Alleged Conflicts of Interest
Before any consideration of the questions involving advice given to Boldridge by counsel or counsel's alleged deficient and prejudicial performance in representing her at trial, we take up as a threshold issue the question of counsel's alleged conflicts of interest.
The Sixth Amendment to the United States Constitution guarantees in "all criminal prosecutions" that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." This Sixth Amendment right to counsel is made applicable to state proceedings by the Fourteenth Amendment to the Constitution. See Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). This court has explained that the right to counsel guaranteed by these provisions is the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 [1984]). Similarly, a defendant in a criminal trial has a constitutional right to "representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 101 S. Ct. 1079 (1981).
Allegations of ineffective assistance of counsel, whether based on claims of deficient performance or on a conflict of interest, involve mixed questions of fact and law. This court therefore reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo. See State v. Gleason, 277 Kan. 624, 644-45, 88 P.3d 218 (2004).
To demonstrate that a conflict of interest resulted in ineffective assistance of counsel, a defendant has the burden of proving a reversible conflict--that is, (1) a conflict of interest (2) that affected the adequacy of the attorney's representation. See Mickens v. Taylor, 535 U.S. 162, 168, 152 L. Ed. 2d 291, 122 S. Ct. 1237, reh. denied 535 U.S. 1074 (2002); Gleason, 277 Kan. at 650. A defendant who can demonstrate that a conflict of interest affected the adequacy of his or her counsel's representation need not demonstrate prejudice in the traditional sense, which requires the defendant to prove that counsel's deficient performance affected the outcome of the trial, due to the difficulty of establishing such a claim in cases based on conflicting loyalties. See Mickens, 535 U.S. at 174.
Appointed Counsel Acting as Pro Tempore Judge
Boldridge argues that Tuley's representation fell below the objective standard of reasonableness guaranteed by the Sixth and Fourteenth Amendments because, prior to his appointment as her counsel, he had acted as a pro tempore part-time judge in Atchison County in May 2000 on matters directly related to her first-degree murder prosecution. The record discloses that while serving as pro tempore judge, Tuley signed various inquisitional subpoenas to obtain telephone records in the criminal investigation that eventually resulted in a charge of first-degree murder against Boldridge. The records acquired as a result of those subpoenas were later used as evidence against Boldridge at her murder trial to corroborate the testimony of other witnesses regarding various telephone calls Boldridge made around the time of the murder.
The record discloses that at the time of his appointment, Tuley had spoken with Boldridge about his service as a pro tempore judge and his involvement with subpoenas for "telephone records." Counsel explained that he never reviewed any documents in conjunction with the Boldridge's murder case. When Boldridge was asked by the district court at the appointment hearing whether she had discussed the nature of her counsel's involvement as a pro tempore judge with him, Boldridge indicated that Tuley had explained his pro tempore service "in depth" and that Boldridge saw no conflict in Tuley representing her during her trial for murder.
Boldridge related during her K.S.A. 60-1507 hearing that Tuley (who died prior to the K.S.A. 60-1507 hearing) told her that his previous service as a pro tempore judge "wasn't really a big deal" and that he happened to be sitting on the bench the day the subpoenas needed to be signed since the full-time judges in the area were out of town. While Boldridge explained that counsel advised her of the conflict initially, she was never given an opportunity to discuss the ramifications of the conflict with another attorney. She testified at the hearing on her motion that she waived the conflict because she "was under the impression it really wasn't that big of a deal."
The district court concluded Boldridge had presented no evidence at the K.S.A. 60-1507 hearing that Tuley was operating under a conflict of interest that called for an automatic disqualification and that Boldridge waived any objections to the alleged conflict on the record. The Court of Appeals majority agreed, noting that Boldridge "cite[d] no authority prohibiting the waiver of a conflict of interest," that Boldridge "knew of Tuley's pro tem judicial service in signing the subpoenas for phone records," and that Boldridge "specifically waived that conflict so Tuley could represent her in the criminal case." Boldridge, slip op. at 10.
Boldridge now argues that our decision in State v. Rice, 227 Kan. 416, 607 P.2d 489 (1980), requires that we reverse her conviction of first-degree murder due to her counsel's prior actions a pro tempore judge. Rice involved allegations by a defendant that his defense counsel had operated under an unconstitutional conflict of interest because one of the defense counsel's partners in his law firm also served as a part-time municipal judge. We explained in Rice that "[e]arly opinions of the advisory section of the ethics committee of the Kansas Bar Association have held that a lawyer holding a position as a part-time municipal judge, city attorney or county attorney would be precluded from representing criminal defendants in all courts. [Citation omitted.]" 227 Kan. at 420-21. Quoting another ethics committee report, Rice noted:
"'Lawyers holding part-time positions as Judges or Prosecuting Attorney, should, of course, never appear as counsel for defendants in criminal matters in the Courts in which they have responsibility. It is the opinion of the Committee, however, that they may be far enough removed that they can appear in other Courts, in which they have no substantial responsibility, as counsel for criminal defendants without giving an appearance of impropriety.'" 227 Kan. at 421.
The Rice court recognized that there was currently "no specific provision in the Code [of Professional Responsibility] prohibiting representation of defendants in criminal cases by the partners or associates of a judge or prosecutor." 227 Kan. at 420. But the court also noted that "this has long been a problem of courts and judges who have the responsibility to appoint counsel for indigent defendants." 227 Kan. at 420. Rice continued:
"It is often stated that such representation may give an appearance of impropriety and therefore should be carefully avoided under Canon 9, DR 9-101 (225 Kan. cix). On the other hand, it is the duty of every lawyer to assist the legal profession in fulfilling its duty to make legal counsel available. Thus, in any particular case there is a necessity to balance the conflicting duties and make a determination on an individual case by case basis." 227 Kan. at 420.
Applying these standards to the facts before it, Rice concluded that "there was no conflict of interest and . . . no appearance of impropriety" in the proceedings that would have disqualified the defendant's counsel. 227 Kan. at 422.
We note that despite its finding that a conflict of interest did not arise in that case, Rice emphasized that even if the defendant demonstrated that his defense attorney was acting under a conflict of interest, there must be some "showing of prejudice," as a "'mere allegation of a conflict of interest of counsel is not sufficient to show a denial of an accused's constitutional right to the effective assistance of counsel.'" 227 Kan. at 422 (quoting State v. Gross, 221 Kan. 98, Syl. ¶ 2, 558 P.2d 665 [1976]). Because no conflict existed in that case, Rice did not discuss the subsequent prejudice assessment in greater detail.
Boldridge claims that Rice supports her argument that lawyers acting as part-time judges should "never" represent criminal defendants in courts where they serve. She argues that her counsel's actions in this case--previously serving as a judge and authorizing the issuance of subpoenas in the very case against her--were especially improper and require reversal of her first-degree murder conviction regardless of the effect on the outcome of the case.
While there was no specific rule governing representation by part-time judges at the time of our decision in Rice, our Code of Judicial Conduct (2008 Kan. Ct. R. Annot. 645) has been modified to proscribe such conduct. At the time of Boldridge's murder trial, the Code of Judicial Conduct stated: "A pro tempore part-time judge . . . shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto except as otherwise permitted by Rule 1.12(a)" of the Kansas Rules of Professional Conduct (KRPC) (2008 Kan. Ct. R. Annot. 487). Code of Judicial Conduct, Rule 601A, Application of Code D(3) (2008 Kan. Ct. R. Annot. 675). KRPC 1.12(a) states:
"[A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or any other adjudicative officer or law clerk to such a person as an arbitrator, mediator or other third-party neutral, unless all parties to the proceedings give informed consent confirmed in writing." (2008 Kan. Ct. R. Annot. 487).
The revised Kansas Code of Judicial Conduct, 287 Kan. Advance Sheet No. 3 xi (2009), which became effective March 1, 2009, is even more explicit in its prohibition of such conduct, stating that "[a]n occasional part-time judge shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto." Rule 601B, Application of Code V(B) (2009 Kan. Ct. R. Annot. __).
The record establishes a conflict of interest in this case. Tuley's appointment as counsel for Boldridge in her trial for first-degree murder (and his acceptance of that appointment) after having authorized the issuance of subpoenas for telephone records in the investigation of that same murder case was clearly improper under the KRPC regulating attorneys and the Code of Judicial Conduct. Due to the nature of that conflict, the district court should not have appointed Tuley as Boldridge's counsel. Likewise, Tuley should have refused to accept an appointment that required an ethical violation. See KRPC 1.12(a).
We recognize that the Code of Judicial Conduct and the Kansas Rules of Professional Conduct for attorneys in this state provide for a waiver of such a conflict in circumstances where all parties give informed consent to the conflicted representation and where this consent is memorialized in writing. We must emphasize, however, that an oral statement by a defendant accepting counsel's appointment, without more, does not satisfy the waiver requirements. Although statements on the record by the court and the parties may in some instances substitute for the writing required by the KRPC, the record we examine today falls short of establishing any such waiver.
The hearing on Boldridge's waiver of the conflict was vague at best and did not explain the nature of the conflict at issue--that Tuley signed subpoenas authorizing government officers to obtain telephone records that would later be used as evidence of Boldridge's motive and opportunity at trial. Had this information been disclosed and the conflict more fully explored by the court and counsel, it is doubtful that Tuley would have been appointed to represent Boldridge. Boldridge testified at her K.S.A. 60-1507 hearing--the only proceeding where she was able to fully explain her understanding of the conflict in question--that she was "under the impression it really wasn't that big of a deal."
We conclude that the district court's rulings that Tuley's actions as a pro tempore judge in signing the subpoenas were "ministerial" and that Boldridge knowingly waived any conflict arising from those signatures were not supported by substantial evidence. The record does not support a conclusion that either party affirmatively waived or confirmed their consent to this conflicted representation in writing. Evidence presented at the K.S.A. 60-1507 hearing calls into question whether Boldridge truly appreciated the nature of Tuley's prior actions as pro tempore judge. For these reasons, we conclude that Boldridge has demonstrated that trial counsel acted under a conflict of interest when he accepted his appointment as her defense counsel. See State v. Dixon, 438 So. 2d 185, 185-86 (Fla. Dist. App. 1983) (finding that part-time prosecutor who signed defendant's indictment in grand jury proceedings could not subsequently serve as defendant's counsel at trial).
Nevertheless, the conflict found does not by itself entitle Boldridge to a reversal of her conviction. Structural error only occurs in very limited circumstances where errors "defy analysis by 'harmless-error' standards" because they "affect[] the framework within which the trial proceeds." Arizona v. Fulminante, 499 U.S. 279, 309-10, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); see United States v. Gonzalez-Lopez, 548 U.S. 140, 165 L. Ed. 2d 409, 126 S. Ct. 2557 (2006) (denial of right to counsel of choice); Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993) (denial of the right to a jury trial by giving a defective reasonable-doubt instruction); Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984) (denial of the right to a public trial); McKaskle v. Wiggins, 465 U.S. 168, 79 L. Ed. 2d 122, 104 S. Ct. 944 (1984) (denial of the right of self-representation); Holloway v. Arkansas, 435 U.S. 475, 488, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978) (denial of right to counsel when counsel was required by the court to simultaneously represent multiple defendants over counsel's objection); Gideon, 372 U.S. 335 (complete denial of right to counsel).
Our review of our Supreme Court Rules and case law demonstrates that Tuley's conflict in previously serving as a pro tempore judge is not a structural error requiring automatic reversal. First, the Kansas Code of Judicial Conduct and Kansas Rules of Professional Conduct for attorneys recognize that a conflict similar to the one we now consider can be waived by informed consent in writing. Because the type of conflict we consider in this case is waivable by the parties, it does not create a structural defect. Furthermore, our decision in Rice explains that even where a defendant demonstrates that an attorney was acting under a conflict of interest in violation of ethical rules, there must be some "showing of prejudice" before that conflict will cause the court to reverse a conviction. 227 Kan. at 422. In other words, the conflict created by Tuley's representation in this case does not require automatic reversal; rather, it is subject to the modified prejudice analysis set forth by the United States Supreme Court in Mickens. See 535 U.S. at 168.
Thus, in order to prevail upon this issue, Boldridge must demonstrate that the conflict affected the adequacy of the attorney's representation. See Mickens, 535 U.S. at 168. Specifically, Boldridge argues that Tuley's previous service as a pro tempore judge affected his representation by foreclosing his ability to object to the admission of the phone records obtained by his signature.
The subpoenas signed by Tuley as pro tempore judge were inquisitional subpoenas for telephone records. In State v. Schultz, 252 Kan. 819, 850 P.2d 818 (1993), this court held that a defendant does not have standing to challenge an inquisitional subpoena for phone records because an individual does not have a reasonable expectation of privacy in his or her phone records. 252 Kan. at 834-35. This conclusion was based on United States Supreme Court precedent, which held that an individual has no legitimate expectation of privacy in information he or she voluntarily turns over to third parties. 252 Kan. at 822-24. Thus, telephone customers have no reasonable expectation of privacy in the telephone numbers they dial because they know that the phone company tracks those numbers and keeps records of calls made (as shown by a telephone customer's monthly statement). 252 Kan. at 834-35.
In Smith v. Maryland, 442 U.S. 735, 742-43, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979), the United States Supreme Court explained:
"[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must 'convey' phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. . . . Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret."
Under both this court's precedent in Schultz and the United States Supreme Court's decision in Smith, Boldridge could not challenge the inquisitional subpoenas for telephone records that Tuley authorized as a pro tempore judge because she had no expectation of privacy in those records. This outcome is true regardless of the identity of her trial counsel or of that attorney's previous involvement with the subpoenas in question.
Because Boldridge could not effectively challenge the inquisitional subpoenas or restrict access to her phone records, the fact that Tuley previously signed these subpoenas before his appointment had no effect on his ability to represent her during her trial. Boldridge's argument to this effect therefore fails. Boldridge has not shown that counsel's previous service as a pro tempore judge affected the adequacy of his representation at trial. Thus, counsel's service as a pro tempore judge is not a basis for reversal of Boldridge's conviction.
Previous Representation of the Victim by Counsel's Associate
Boldridge also claims that Tuley was unable to provide conflict-free representation because one of the attorneys working in his law firm, Robert Campbell, previously represented Kurt Boldridge (the murder victim) in a case that resulted in the termination of Boldridge's parental rights as to one of her sons. The district court determined that there was no conflict presented by Campbell's previous representation of Kurt because the previous case did not involve the same or a substantially related matter to the murder trial.
Boldridge does not argue that Tuley's firm's previous representation of Kurt in any way affected Tuley's representation of Boldridge during her murder trial. She merely asserts that Kurt's and her relationship was at the heart of the murder trial and that relationship also led to her various felony convictions that led to the previous termination action.
At best, the evidence presented at Boldridge's K.S.A. 60-1507 hearing demonstrated that there was a potential conflict of interest that arose out of Campbell's previous representation of Kurt. Because Boldridge did not in any way demonstrate that this potential conflict affected the adequacy of Tuley's representation, her claim for ineffective assistance of counsel based on an alleged conflict of interest does not provide a basis for relief.
Counsel's Legal Advice Regarding Aiding and Abetting
Boldridge's primary argument in her K.S.A. 60-1507 motion is that her defense counsel Tuley provided ineffective assistance of counsel at trial because he gave her inaccurate legal advice that caused Boldridge to waive her right to a jury trial and also caused her to forego a requested change of venue. Boldridge asserts that Tuley made her believe she could not be convicted of murder if she did not pull the trigger and that a judge would understand this legal argument better than a jury would. In other words, Boldridge asserts that Tuley incorrectly advised her that because she had been charged as a principal, she could not be convicted on an aiding-and-abetting theory. Boldridge further claims that because Tuley relied on an incorrect und