IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 93,654
ROGER DRACH,
Appellant,
v.
LOUIS BRUCE and STATE OF KANSAS,
Appellees.
SYLLABUS BY THE COURT
1. When reviewing the denial of a K.S.A. 60-1507 motion following an evidentiary hearing before the district court, the appellate court reviews the factual underpinnings of the district court's decision by a substantial competent evidence standard and applies a de novo standard when reviewing the district court's decision. The ultimate denial of the 60-1507 motion involves a legal question requiring independent appellate review.
2. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.
3. The right to present witnesses to establish a defense is guaranteed under the Sixth Amendment right to compulsory process. It is fundamental to a fair trial, and denial of the right is a denial of due process under the Fourteenth Amendment to the United States Constitution. Defendants have a right to testify in their own behalf. The decisions which are to be made by the accused after full consultation with counsel are: (1) what plea to enter; (2) whether to waive jury trial; and (3) whether to testify on his or her own behalf.
4. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry are mixed questions of law and fact on appeal requiring de novo review.
5. With no objection to inadequate factual findings, the trial court is presumed to have made all necessary factual findings to support its judgment.
6. The district court was in the better position to weigh the credibility of the witnesses, and this court does not pass on the credibility of witnesses or reweigh conflicting evidence.
7. The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her. This constitutional provision does not preclude the admission of all out-of-court statements. In determining the admissibility of hearsay exceptions, the court must also consider the requirements of the Confrontation Clause of the United States Constitution. The Confrontation Clause can operate to bar the admission of evidence that would otherwise be admissible under an exception to the hearsay rule if confrontation requirements are not met.
8. Kansas appellate courts have applied a three-step analysis for determining whether a change in the law should be applied retroactively in a criminal case under collateral attack. First, the court must determine whether the movant has properly raised the issue in his or her collateral attack. Supreme Court Rule 183(c) (2005 Kan. Ct. R. Annot. 228) limits the issues that may be raised in a collateral attack. Second, the court determines whether the case was final when the new law was established. If a case was final when the new law was established, the general rule is that the new law will not be applied to cases on collateral attack. Third, if the case was final before the new law was established, the court must determine whether any exception to the general rule against retroactive application applies.
9. A new rule of constitutional criminal procedure is not applied retroactively on collateral review unless (1) it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to prosecute, or (2) it is a watershed rule requiring the observance of those procedures that are implicit in the concept of ordered liberty.
10. New rules of procedure generally do not apply retroactively. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Because of this more speculative connection to innocence, we give retroactive effect to only a small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. That a new procedural rule is fundamental in some abstract sense is not enough; the rule must be one without which the likelihood of an accurate conviction is seriously diminished. This class of rules is extremely narrow.
11. The new Confrontation Clause analysis set forth in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), is not a watershed rule entitled to retroactive application on collateral appeal because it was not one without which the likelihood of an accurate conviction is seriously diminished.
12. Under Kansas law, where an appeal is taken from the sentence imposed and/or a conviction, 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. Where a defendant's claim has not been raised at trial or on direct appeal, such a default prevents the defendant from raising the claim in a second appeal or in a collateral proceeding.
13. When a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsideration will not normally be given to such questions. Ordinarily, under the law of the case doctrine, once an issue is decided by the court, it should not be relitigated or reconsidered unless it is clearly erroneous or would cause manifest injustice.
14. Res judicata, rather than the law of the case doctrine, applies to issues raised in a K.S.A. 60-1507 civil proceeding which have previously been resolved by a final appellate court order in his or her criminal proceeding.
15. A K.S.A. 60-1507 motion cannot be used as a substitute for a second appeal, absent a showing the trial error affected constitutional rights and a showing of exceptional circumstances.
Appeal from Finney district court, MICHAEL L. QUINT, judge. Opinion filed June 9, 2006. Affirmed.
Jeremiah J. Kidwell, of Kansas City, Missouri, argued the cause, and Dennis J.C. Owens, of Kansas City, Missouri, was with him on the briefs for appellant.
Lois K. Malin, assistant county attorney, argued the cause, and John P. Wheeler, Jr., county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Roger Drach's convictions of first-degree premeditated murder, aggravated battery with great bodily harm, and criminal possession of weapons in this marital homicide case were upheld in State v. Drach, 268 Kan. 636, 1 P.3d 864 (2000). Drach appeals the denial of his K.S.A. 60-1507 motion alleging that counsel was ineffective by depriving him of the right to testify on his own behalf and that his convictions were based on inadmissible hearsay evidence in violation of the Confrontation Clause. We disagree and affirm.
Roger Drach was convicted of first-degree premeditated murder, aggravated battery with great bodily harm, and criminal possession of weapons in connection with the death of his wife, Deanne Drach. A summary of the facts giving rise to the charges and convictions as set forth in our State v. Drach, 268 Kan. 636, decision follows:
"Deanne died on August 19, 1994, as a result of a gunshot wound to the chest. This case was not commenced until nearly 2 years after her death. The main issue at trial was whether Deanne had committed suicide or had been murdered by Drach.
"Drach claimed Deanne committed suicide, that he was not in the room when she was shot, and that he found her on the bed after he heard the shot. The State's expert witnesses testified the wound could not have been self-inflicted. Drach's expert witnesses testified they were 99.5% certain the wound was self-inflicted.
. . . .
"After review of the extensive record (18 volumes, the longest of which is 291 pages), two relevant facts emerged: Deanne had an affair 28 years before her death, and she had been abused since her husband discovered the affair shortly after it occurred.
"At trial, there was much hearsay evidence of abuse suffered throughout the 34-year-marriage, none of which is pinned down by time or date.
"When Deanne's body was examined at the scene, she was on the bed in the southeast corner of the room. The gun that was used to shoot her was in the northwest corner of the room. The gun was a derringer. Both parties' experts testified the bullet had been fired from the top barrel. Yet, the top barrel had a live round with a dented primer in it and an empty cartridge in the bottom chamber.
"Both old and new blood stains consistent with Deanne's blood were found throughout the house, in Deanne's purse, in her clothing, and in Drach's car, which would indicate Deanne had been abused for a long period of time.
"When Deanne's body was examined, she was lying in fresh blood but had dried blood on her arms and back. She had a 2.5 centimeter laceration on the back of her head that went to the bone, two black eyes, a laceration above the right eye, and bruises all over her body. X-rays revealed new fractures of the 9th, 10th, and 11th ribs.
"Two autopsies revealed old fractures of the 7th, 10th, 11th, and 12th ribs on the right side; a healing fracture of the left ulna; a fracture of the right arm that had recently been refractured; and a gunshot wound to the left arm.
"Drach gave accounts of what happened that did not appear to be accurate. For example, in discussing a broken window, Drach said he had to break into the house because he did not have his key. Law enforcement officers testified the window was broken from the inside out. Drach testified that Deanne had facial bruises when he checked her out of the hospital. Three witnesses testified, however, that Deanne had no visible marks on her when they last saw her, including the discharging nurse at the hospital.
"Drach also said he thought Deanne was drinking again when she died. The autopsy report showed her blood alcohol concentration was .000. Drach also told officers Deanne got her gun out of her car the day she was shot. Her car was in storage at Dodge City at all pertinent times and had been for some time." 268 Kan. at 637-39.
In the original appeal affirming Drach's convictions and sentences, we rejected Drach's argument that the marital discord evidence admitted by the district court as res gestae was inadmissible hearsay because it fell under the marital discord exception. We also concluded that such evidence was not violative of the Confrontation Clause because the statements had particular guarantees of trustworthiness under Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531(1980). 268 Kan. at 648-51.
On October 12, 2004, Drach filed an amended K.S.A. 60-1507 motion claiming that trial counsel was ineffective in failing to inform him of the right to testify on his own behalf and failing to object to prejudicial marital discord testimony. He also claimed that his convictions were based on hearsay testimony which violated the Confrontation Clause under both Roberts and Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).
An evidentiary hearing on the motion was held on October 22, 2004. After hearing testimony from Drach and his trial counsel Richard Marquez and John Lindner, the district court denied the motion, finding overwhelming evidence existed that Drach was informed of his right to testify on his own behalf and that his hearsay claims were resolved against him in his direct criminal appeal and are bound by res judicata in his 60-1507 motion. The court further concluded that Crawford should not be applied retroactively to cases on collateral review, that the marital discord testimony was not testimonial under Crawford, and that Crawford does not apply under the doctrine of equitable forfeiture because Drach was responsible for Deanne's death. The defendant timely appealed, and we transferred this case on our own motion pursuant to K.S.A. 20-3018(c).
The defendant raises two arguments on appeal: (1) Defense counsel was ineffective by depriving Drach of the right to testify on his own behalf; and (2) inadmissible hearsay marital discord evidence was admitted at trial in violation of the Confrontation Clause under Roberts and Crawford.
K.S.A. 60-1507 Standard of Review
When reviewing the denial of a K.S.A. 60-1507 motion following an evidentiary hearing before the district court, the appellate court reviews the factual underpinnings of the district court's decision by a substantial competent evidence standard and applies a de novo standard when reviewing the district court's decision. The ultimate denial of the 60-1507 motion involves a legal question requiring independent appellate review.
"Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [In other words,] substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]" State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).
(1) Sixth Amendment Right to Testify
Background
Before the defense rested at trial, Drach had a discussion with his two trial attorneys, Richard Marquez and John Lindner, concerning testifying on his own behalf. The attorneys did not agree whether Drach should testify. Lindner thought the defense did not have "enough" without his testimony, and Marquez was concerned that Drach would lose his temper on the stand and that Drach might have to admit that a battery had occurred. Although Drach made statements that he was paying Marquez to decide if he should testify, both attorneys confirmed that Drach was informed that it was his decision whether to testify and that Drach himself decided that he would not testify. Drach argues that he did not feel like it was his decision to make and the reason why he did not testify was because Marquez did not want him on the stand.
Prior to the State's rebuttal, the district court asked Drach if he understood his Fifth Amendment right against self-incrimination and that it was his decision alone whether to testify on his own behalf. Drach replied that he understood and had decided not to testify. The defense rested without Drach testifying on his own behalf.
During the State's rebuttal, Karen Althaus testified that her husband had an affair with Deanne 25 years earlier. In July 1972, Drach discovered the affair and forced Deanne into the Althauses' home at 1 a.m. Drach was enraged and pointing a gun at a crying Deanne whose clothing was torn. Drach stated that Deanne had confessed to him and he wanted Mr. Althaus to do the same. He made Deanne swear on a Bible to the number of times they had sex, and he struck her across the face demanding to know what happened. Althaus testified that Drach said he had four bullets and that he would kill Deanne and himself because there was no reason to live. He forced Deanne to call her parents, confess her unfaithfulness, and tell them goodbye. He told her parents to drive to Hutchinson to say goodbye to their daughter, and they left the Althaus residence.
At the 60-1507 hearing, Drach testified that he decided he wanted to testify when Althaus was called as a rebuttal witness. He claimed he twice said, "'Mr. Marquez, she is lying. I've got to testify, I've got to do something.'" Drach said that Marquez waived his hand and said, "'Sit down, sit down.'" Drach did not testify following rebuttal, nor did he talk to his lawyers about their failure to let him testify or raise the issue with the court.
Marquez testified that he did not remember Drach asking to testify during rebuttal. He did recall that Drach got agitated saying the testimony never happened and Marquez tried to calm him down to prevent the jury from seeing him upset. When Marquez asked Drach about Althaus' testimony, Drach first denied knowing who she was and then said that they were friends. Lindner was on his feet objecting to the rebuttal testimony and did not hear the conversation. Lindner was never aware that day that Drach had expressed a desire to testify.
Subsequently during the jury instruction conference, Drach did not express to the district court that he wished to testify when the district court asked if he would like an instruction concerning his decision not to testify at trial. Instead, Drach requested that such an instruction be given.
Discussion
Drach first claims that he was denied his constitutional right to testify on his own behalf through ineffective assistance of counsel. In denying Drach's K.S.A. 60-1507 motion raising this issue, the district court reasoned:
"3. The first claim of the Plaintiff is that he was not informed of his right to make the decision to testify or not, during the trial. The evidence is overwhelming that he was told on numerous times that it was his decision and he chose not to testify.
A. During the Arraignment, the Journal Entry and the statement of Defense Counsel both confirm that Mr. Drach was told that 'He has the right to testify, but only if he/she so desires.'
B. Both defense counsel confirmed that Mr. Drach was told of his right to make the decision and that both stated that it was his decision, after consulting with his attorneys that he would not do so.
C. That at the conclusion of the defense's case, the Court inquired of the Defendant, Mr. Drach, as follows:
'The Court: Mr. Drach, do you understand that you have the Fifth Amendment privilege against self-incrimination, and that's your decision alone whether you wish to testify. And you've made that decision; is that correct sir?
'Roger Drach: Yes, sir.
'The Court: and it's your desire, then not to testify in this matter?
'Roger Drach: Yes sir.'"
"The right to present witnesses to establish a defense is guaranteed under the Sixth Amendment right to compulsory process. It is fundamental to a fair trial, and denial of the right is a denial of due process under the Fourteenth Amendment to the United States Constitution." State v. Finley, 268 Kan. 557, Syl. ¶ 1, 998 P.2d 95 (2000). Defendants have a right to testify in their own behalf. State v. Whitaker, 260 Kan. 85, 87, 917 P.2d 859 (1996). The "decisions which are to be made by the accused after full consultation with counsel are: (1) what plea to enter; (2) whether to waive jury trial; and (3) whether to testify in his own behalf." State v. McKinney, 221 Kan. 691, 694-95, 561 P.2d 432 (1977).
"'A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.'" State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]).
"Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry are mixed questions of law and fact on appeal requiring de novo review." State v. Griffin, 279 Kan. 634, Syl. ¶ 6, 112 P.2d 862 (2005).
Before the district court, Drach argued that he "was never informed by his trial counsel that he had the choice to testify on his own behalf." However, substantial evidence in the record on appeal establishes that Drach was advised of his right to testify at trial and decided to waive that right following full consultation with both his attorneys and the court before the defense rested. As such, Drach shifts gears and argues that the performance of Drach's counsel was deficient by refusing to allow him to testify freely on his own behalf on surrebuttal. Drach contends he could have countered Althaus' detrimental testimony by testifying that he and his wife were best friends with the Althaus couple, that he did not have a gun with him that night, that he never hurt his wife in 1972, that he went to the Althaus residence around 11 p.m., that he did not make the statements relayed by Althaus at trial, and that no violence occurred that night.
The determination of whether Drach asserted his right to testify during rebuttal amounted to a credibility contest between Drach and Marquez. Although the district court did not make specific findings in this regard, the district court's decision that Drach was informed of his right to testify contrary to his allegations otherwise demonstrates that it found Marquez' testimony more credible. See State v. Combs, 280 Kan. 45, 50, 118 P.3d 1259 (2005) ("With no objection to inadequate factual findings, the trial court is presumed to have made all necessary factual findings to support its judgment."). The district court was in the better position to weigh the credibility of the witnesses, and this court does not pass on the credibility of witnesses, reweigh conflicting evidence, and questions of credibility are resolved in favor of the State. State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000).
As the appellate court must accept as true the evidence and all inferences drawn from the evidence which tend to support the findings of the trial judge, Drach has not established that counsel's representation was deficient. Even if he had demonstrated a deficiency, Drach has not established prejudice by his inability to personally refute this testimony: Drach had presented 12 witnesses during his case in chief who testified that they had never seen Drach act in a violent manner toward Deanne. Clearly the jury by its verdict believed that Drach had been violent with Deanne.
(2) Admission of Marital Discord Testimony in Violation of the Confrontation Clause
Background
In a pretrial hearing, the defense challenged the admission of marital discord testimony on the grounds that it was inadmissible hearsay admitted as res gestae and presented a confrontation issue. The 60-1507 court responded that the Kansas Supreme Court had ruled upon those issues and had carved out a specific exception for marital discord cases. Although a plethora of marital discord evidence was introduced at trial, Drach points to the testimony of Lana Christensen, Carol Taylor, Janet Meyers, Marvelle Darough, Marvelle Sosa, and Dora Hermosillo as the hearsay witnesses in his K.S.A. 60-1507 motion. We summarized this evidence in the direct appeal as follows:
"Approximately 2 months before her death, Deanne went to St. Catherine's Hospital in Garden City. Deanne was inebriated, barefoot, not wearing her broken glasses, and her hair was in disarray. Drach was arrested for domestic battery. Deanne told Family Crisis Services workers [Christensen & Taylor] who testified at trial, that Drach had threatened her life. They also testified that Deanne had related to them that Drach had often beat her over the years and had repeatedly threatened her life over an affair that she had over 25 years previous. Deanne also reported to the workers that she had suffered broken ribs and arms over the years. Deanne further told the workers that she had been shot in the shoulder by Drach on a previous occasion. The workers observed a scar on Deanne's shoulder. Deanne told the workers that Drach had forbid her from seeking medical attention for most of these injuries.
"Deanne related the same facts to a counselor in Dodge City [Hermosillo] who testified at trial. The counselor testified that Deanne had told her about times when Drach hit her in the face, stomach, and arms.
"Approximately 1 month before her death, Deanne was admitted to St. Joseph's Hospital in Wichita. A doctor [Meyers] testified that he noticed scars about her face and arms. Deanne told him that Drach had caused the scars." 268 Kan. at 648.
Additionally, Dr. Meyers referred Deanne to Marvelle Darrough, a therapist who testified at trial that she had learned of the spousal abuse while working with Deanne. Deanne described horrific beatings, being repeatedly threatened with a gun, and being burned with an iron. Darrough diagnosed her with battered woman syndrome with trauma syndrome. Marvelle Sosa, an addictions counselor with the hospital, testified that she remembered Deanne because she had endured a lot of "awesome" spousal abuse.
In the direct appeal, Drach argued that evidence of Deanne's statements about spousal abuse she had suffered at the hands of Drach constituted inadmissible hearsay and prior bad acts. We found that although the trial court had admitted the evidence on the grounds of res gestae, Kansas courts had consistently admitted evidence of marital discord even though it may fall under the traditional notion of hearsay or prior bad acts. We further noted that hearsay statements made by a deceased spouse declarant are admissible as evidence of marital discord if the trial court finds that the statements have particular guarantees of trustworthiness under Roberts. Finally, we found that the question of whether the admission of the evidence as res gestae violated the Confrontation Clause was moot because the evidence was admissible under the marital discord exception. 268 Kan. at 650-51.
In his K.S.A. 60-1507 motion, Drach argued the marital discord testimony presented by the above six witnesses admitted at trial was inadmissible hearsay which violated the Confrontation Clause under both Roberts and Crawford. The 60-1507 court ruled in relevant part:
"7. The fifth issue raised was the claim that the hearsay evidence presented by the six listed witnesses should not have been presented under the guidelines set out in Crawford v. Washington, 541 U.S. [36], 158 L. Ed. 2d 177, 124 S. Ct. [1354 (2004)]. The hearsay nature of the testimony was dealt with on direct appeal to the Supreme Court of Kansas and found to be acceptable as set out in that opinion. That opinion was not appealed further.
. . . .
"9. Where Mrs. Drach is unable to take the stand and be cross-examined, supposedly because she was dead at the hands of Roger Drach, such an equitable forfeiture of the Confrontation Clause is found to be proper. Under that evaluation, the reliance on the Crawford case would not be justified.
. . . .
"2. The hearsay nature of the testimony of Lana Christensen, Carol Taylor, Janet Meyers, Marvelle Darough, Marvelle Sosa and Dora Hermosillo was raised on direct appeal and the Supreme Court of Kansas found that such testimony was proper. The objection on hearsay testimony is by its nature, an objection on the basis of the right to confront one's accuser. To that extent, the Court finds that res judicata should apply to this argument. If the Supreme Court chooses to use the petition under K.S.A. 60-1507 as the vehicle to reverse itself, this Court feels it has the power to do so. Until then, this Court rules that the application must fail due to the fact that it has already been ruled on.
"3. The State argues that Mr. Drach failed to preserve the Confrontation Clause as a basis for the original appeal. This Court disagrees and rules that the issue was originally preserved and ruled on by the Supreme Court.
"4. The State further argues that Crawford should not be applied retroactively. This Court agrees that it should not, and that based upon Brown v. Uphoff, 381 F.3d 1219 (1st Cir. N.H.) August 19, 2004, and other reasoned authority, the decision of Crawford should NOT be retroactively applied.
"5. The Crawford case applies only to evidence that is testimonial in nature. Under the definitions as applied in Evans v. Luebbers, 371 F.3d 438 (8th Cir. MO) June 10, 2004, the testimony of the [six] witnesses complained of by Mr. Drach would not be deemed testimonial in nature and therefore not excluded under the ruling of the Crawford case."
Discussion
"The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her. This constitutional provision does not preclude the admission of all out-of-court statements. In determining the admissibility of hearsay exceptions, the court must also consider the requirements of the Confrontation Clause of the United States Constitution. The Confrontation Clause can operate to bar the admission of evidence that would otherwise be admissible under an exception to the hearsay rule if confrontation requirements are not met." State v. Lackey, 280 Kan. 190, Syl. ¶ 1, 120 P.3d 332 (2005), cert. denied 126 S. Ct. 1653 (2006).
At the time of trial in this case, a Confron