Bell v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 111,662

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GREGORY E. BELL,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed November 6,
2015. Affirmed in part, reversed in part, and remanded with directions.

Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., STANDRIDGE, J., and BURGESS, S.J.

Per Curiam: Gregory E. Bell appeals from the trial court's judgment denying his
K.S.A. 60-1507 motion without holding an evidentiary hearing. On appeal, Bell contends
that the district court should have held an evidentiary hearing on his claim that his trial
counsel was ineffective. We find that several of Bell's arguments lack merit. Moreover, it
appears that some of the decisions made by Bell's trial counsel were done—or not done—
as a result of trial strategy. However, we simply cannot determine from the record on
appeal whether trial counsel made a tactical decision to not call Bell's sisters as witnesses.
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Thus, we affirm in part, reverse in part, and remand this matter for an evidentiary
hearing.

FACTS

The facts from Bell's underlying criminal case were previously set forth in State v.
Bell, No. 101,903, 2011 WL 3444200, at *1 (Kan. App. 2011) (unpublished opinion),
rev. denied 293 Kan. 1108 (2012):

"In the early morning hour of February 22, 2008, Lightning Joe's, a nightclub in
Wichita, had just closed and its patrons were congregating in the parking lot. [Antonio]
Judice and [Maurice] Peters were in the parking lot when Bell's sisters, who were angry
at Judice, confronted him. This was the second altercation within a relatively short period
of time between Bell's sisters and Judice. What happened next was controverted, but the
unfortunate result was that Judice was shot and killed and Peters was wounded.

"At trial, more than 30 witnesses testified to their versions of the events
surrounding the shootings. Many of the events were recorded on video surveillance
cameras both inside and outside the club but the video recordings and numerous still
images taken from them were not included in the record on appeal. Moreover, none of the
trial exhibits were added to the record.

"One consistent fact at trial was that at about the time of Judice's altercation with
Bell's sisters in the parking lot, a white or silver sedan drove up near Judice. Testimony
indicated that Bell was a passenger and his brother, Arthur Bryant, was the driver of the
sedan. Bell and Bryant may or may not have exited the sedan, but William Banks
testified, with some equivocation, that Bell shot Judice. On the other hand, another
witness, Steven Espinoza, testified that Bryant shot Judice. Judice died a few hours after
the shooting.

"At trial, Peters testified with some equivocation that Bell had shot him from the
passenger side of the sedan. Other witnesses testified the passenger in the sedan
(sometimes identified as Bell) was shooting as the sedan drove away from the scene.
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"At the conclusion of the trial, the jury found Bell guilty of the voluntary
manslaughter of Judice, attempted voluntary manslaughter, and (alternatively) aggravated
battery of Peters, and criminal possession of a firearm."

On direct appeal, Bell raised several issues: (1) whether the district court erred by
excluding alleged admissions on recorded telephone calls between Bryant and other
people as well as in statements made by Bryant to his jailhouse cellmate; (2) whether the
district court erred by engaging in ex parte communication with the jury by reading back
testimony outside of Bell's presence; (3) whether the district court improperly warned
Bell that if he chose to testify that he would be subject to cross-examination on any
subject thereby frightening Bell into not testifying; (4) whether the involuntary
manslaughter instruction—which applied if the jury did not agree on Bell being guilty of
voluntary manslaughter—operated to preclude the jury from considering the lesser
included offense of involuntary manslaughter; (5) whether the verdict form for the
aggravated battery charge was deficient because it did not explicitly identify one crime as
the principal offense and the other as the lesser included offense; and (6) whether
cumulative error denied him a fair trial. The Court of Appeals rejected each claim of
error, except for the claim regarding an ex parte communication with the jury, which the
court found to be harmless. 2011 WL 3444200, at *11-13.

On April 17, 2012, Bell filed a K.S.A. 60-1507 motion and an accompanying
memorandum of law alleging ineffective assistance of trial and appellate counsel as well
as prosecutorial misconduct. After Bell terminated his first two attorneys, the district
court appointed a third attorney to represent Bell.

On January 14, 2014, the district court conducted a nonevidentiary hearing during
which Bell's 60-1507 counsel was primarily focused on arguing that the State had not
provided Bell and his trial counsel with all the video evidence from the nightclub on the
evening of the shooting. Bell's 60-1507 counsel also briefly argued that trial counsel did
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not review the necessary video footage with Bell before trial. During the State's response,
it introduced the State's Trial Exhibit 30-A, which contained the full security video from
the night of the shooting and Trial Exhibit 30-B, which contained the edited version
played during trial. Notably, the State pointed out that the video evidence introduced at
trial and provided to Bell throughout the case had never included video evidence of the
shooting but is from several cameras positioned at the entrance and on the outside of the
nightclub showing various people coming and going from the club. Ultimately, district
court adopted the State's arguments on all issues except in regards to the video evidence.

On February 12, 2014, the district court conducted a brief hearing in which the
State and Bell's 60-1507 counsel confirmed that the State had previously provided Bell
with the entire video evidence from the evening of the shooting. The district court then
restated that it was adopting the State's arguments for its ruling. On February 21, 2014,
the district court entered a detailed order denying Bell's K.S.A. 60-1507 motion. Bell
thereafter filed a timely notice of appeal.

ANALYSIS

Issues Presented

On appeal, Bell raises four claims of ineffective assistance of trial counsel: (1)
whether trial counsel failed to investigate and review the video tape fully with him; (2)
whether trial counsel failed to interview and subpoena several witnesses who could have
testified in his defense; (3) whether trial counsel failed to move to suppress Maurice
Peters' eyewitness identification; and (4) whether trial counsel failed to fully investigate
and utilize ballistics evidence introduced at trial. The remaining claims that he raised
below but failed to brief—such as prosecutorial misconduct and ineffective assistance of
appellate counsel—are deemed to be waived and abandoned. See State v. Boleyn, 297
Kan. 610, 633, 303 P.3d 680 (2013).
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Standard of Review

When a movant files a K.S.A. 60-1507 motion, a district court has three options:

"(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing." Fischer v. State, 296 Kan. 808, 822-23, 295 P.3d 560 (2013).

Our standard of review depends upon which of these options the district court
chose. When the district court reviews the motion, files, and records; holds a preliminary
hearing, and summarily denies a K.S.A. 60-1507 motion—as occurred here—we are in as
good of a position as the district court to consider the merits. We, therefore, exercise
unlimited review. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).

In accordance with K.S.A. 60-1507(b), the movant must establish by a
preponderance of the evidence that either: (1) "the judgment was rendered without
jurisdiction"; (2) "the sentence imposed was not authorized by law or is otherwise open to
collateral attack"; or (3) "there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack." K.S.A. 60-1507(b); Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 287).

A movant bears the burden to prove that his or her K.S.A. 60-1507 motion
warrants an evidentiary hearing. To do so, the movant's contentions must be more than
conclusory; the movant must state an evidentiary basis in support of the claims or the
basis must be evident from the record. Grossman v. State, 300 Kan. 1058, 1062, 337 P.3d
687 (2014). Once the movant satisfies this burden, a court must "'grant a hearing, unless
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the motion is "second" or "successive" and seeks similar relief.'" 300 Kan. at 1062
(quoting Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 [2011]).

Bell's collateral attack centers on several allegations of ineffective assistance of
trial counsel. Both our federal and state Constitutions guarantee the right of a criminal
defendant to the effective assistance of counsel. State v. Brown, 300 Kan. 565, 574-75,
331 P.3d 797 (2014). To establish ineffective assistance of counsel, the defendant must
show (1) that counsel's performance was constitutionally deficient, which requires a
showing that counsel made errors so serious that counsel's performance was less than that
guaranteed by the Sixth Amendment to the United States Constitution; and (2) that
counsel's deficient performance prejudiced the defense, which requires a showing that
counsel's errors were so severe as to deprive the defendant of a fair trial. State v. Coones,
301 Kan. 64, 70, 339 P.3d 375 (2014).

Under the first prong, Bell must show that counsel's representation fell below an
objective standard of reasonableness. See State v. Betancourt, 301 Kan. 282, 306, 342
P.3d 916 (2015). In doing so,

"'[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
[Citation omitted.] 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. Because of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be considered sound trial
strategy." [Citation omitted.] There are countless ways to provide effective assistance in
any given case. Even the best criminal defense attorneys would not defend a particular
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client in the same way. [Citation omitted.]'" Coones, 301 Kan. at 70 (quoting Strickland
v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).

See State v. Kelly, 298 Kan. 965, 969-70, 318 P.3d 987 (2014).

Under the second prong, the defendant must demonstrate "'a reasonable
probability that, but for counsel's deficient performance, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. A court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge or jury.'" State v. Edgar, 294 Kan.
828, 838, 283 P.3d 152 (2012) (quoting Bledsoe v. State, 283 Kan. 81, 90-91, 150 P.3d
868 [2007]). In the context of a K.S.A. 60-1507 motion, courts review ineffective
assistance of counsel claims de novo. Robertson v. State, 288 Kan. 217, 227, 201 P.3d
691 (2009).

Trial Counsel's Efforts to Review Video Evidence with Bell

Bell first argues that his trial counsel failed to fully investigate or review with him
the video evidence from the nightclub. Although Bell acknowledges that the State did, in
fact, provide Bell's 60-1507 counsel with true and accurate copies of the video admitted
during trial, he claims that "without testimony from trial counsel, there were no facts
established to reach legal conclusions concerning Mr. Bell's claims." Otherwise, Bell
does not cite any authority to support his claim that his trial counsel was ineffective for
failing to review the video evidence with him. See State v. Tague, 296 Kan. 993, 1001,
298 P.3d 273 (2013) (failing to support a point with pertinent authority or show why it is
sound despite a lack of supporting authority or in the face of contrary authority is akin to
failing to brief the issue).

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Included in a trial counsel's responsibility to make strategic and tactical decisions
is the duty to reasonably investigate or to reasonably conclude that a particular
investigation is unnecessary. Shumway v. State, 48 Kan. App. 2d 490, 505, 293 P.3d 772
(2013), rev. denied 298 Kan. 1203 (2013) (citing State v. Hedges, 269 Kan. 895, 914, 8
P.3d 1259 [2000]).

In the present case, the evidence reveals that Bell had an opportunity to review the
video evidence before trial. On September 23, 2008, the district court entered an order for
special visitation permitting a person from the trial counsel's office to visit Bell "for the
purpose of reviewing a video in the defendant's case." As such, we hold that Bell has not
met his burden to show that there is an evidentiary basis supporting his claim that trial
counsel's representation fell below an objective standard of reasonableness. See Flynn v.
State, 281 Kan. 1154, 1163-64, 136 P.3d 909 (2006).

Failure to Call Particular Witnesses

Bell next contends that trial counsel should have called Brian Lee as a witness at
trial. In addition, he contends that his sisters, LaQuita Bell, Rayshawn Bell, and Gnett
Johnson, as well as his brother, Arthur Bryant, should have been called as witnesses at
trial. According to Bell, all these witnesses would have testified that he was not the
shooter.

Generally, it is "'within the province of a lawyer to decide what witnesses to call,
whether and how to conduct cross-examination, and other strategic and tactical
decisions.'" Sola-Morales, 300 Kan. at 887 (quoting Thompson v. State, 293 Kan. 704,
716, 270 P.3d 1089 [2011]). But when counsel lacks the information to make an
appropriate decision because of a lack of investigation, a "trial strategy" argument is
inappropriate. Thompson, 293 Kan. at 716. Bell bears the burden of showing that trial
counsel's actions were not the product of strategy. See Sola-Morales, 300 Kan. at 888.
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At the outset, we note that the record reveals that trial counsel subpoenaed Bryant
as a witness. However, Bryant was ultimately unavailable to testify because he invoked
his Fifth Amendment right to remain silent. Therefore, trial counsel cannot be faulted for
Bryant's absence as a witness.

In regards to Lee, it appears that trial counsel made a sound strategic decision not
to call him as a witness. The record reveals that on May 6, 2008, the district court entered
an order authorizing Bell to hire a private investigator. Lee claims in his affidavit that he
spoke with a private investigator over the phone to whom he described the shooter as
"about six foot tall, dark skinned, heavy set with braids in his hair." Lee asserts that he
arrived at the nightclub about half an hour before closing time and that he did not go
inside, knowing it was about to close. Lee claims that he was outside of the nightclub's
doors trying to pick up women leaving the club when he saw and spoke briefly with Bell
before the shooting. However, video surveillance indicates that Lee and his friends
entered the nightclub shortly before Bell exited.

In addition, Lee claims that he was standing outside of the club within 6 feet of
Bell when the shots were fired. But again video surveillance shows that Lee did not leave
the nightclub until after the shooting had taken place. It is understandable why trial
counsel would not have chosen to use Lee's testimony when the State easily would have
been able to impeach it. "Strategic choices based on a thorough investigation of the law
and facts are virtually unchallengeable." Flynn, 281 Kan. at 1157.

Unfortunately, we cannot glean much from the record on appeal regarding trial
counsel's decision not to call one or all of Bell's sisters as witnesses. Although the State
accurately points out that the purported affidavits from LaQuita, Rayshawn, and Gnett,
provided by Bell in support of his 60-1507 motion do not qualify as affidavits, Bell was
not required to provide an affidavit at this stage of the proceedings. See Swenson v. State,
284 Kan. 648, 656, 162 P.3d 808 (2007). He needed to only "'set forth a factual
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background, names of witnesses or other sources of evidence to demonstrate that
[movant] is entitled to relief.'" Baker v. State, No. 111,709, 2015 WL 3632331, at *8
(Kan. App. 2015) (unpublished opinion) (quoting Sullivan v. State, 222 Kan. 222, 223-
24, 564 P.2d 455 [1977]), (petition for rev. filed June 30, 2015).

In their statements, each of the sisters essentially state that they witnessed the
shooting; that Bell was not the shooter; that they were willing to testify on Bell's behalf;
and that they spoke with trial counsel but he never asked them to testify. Certainly, there
may have been a legitimate reason why trial counsel decided not to call Bell's sisters as
witnesses. However, we are simply unable to determine this based on the record as it now
exists. Thus, we are obligated to remand this matter to the district court for an evidentiary
hearing in order to decide whether the failure to call these witnesses was part of a
reasonable trial strategy or constituted ineffective assistance of counsel. See State v.
Weber, 297 Kan. 805, 816, 304 P.3d 1262 (2013).

Failure to Suppress Testimony of Maurice Peters

Bell also contends that his trial counsel was ineffective for failing to move to
suppress the testimony of Maurice Peters—one of the victims who identified Bell as the
shooter. Here, jury instruction 22 provided the instruction on eyewitness identification
testimony. Notably, the instruction told the jury to consider the "degree of certainty
demonstrated by the witness at the time of any identification of the accused." See State v.
Mitchell, 294 Kan. 469, 479-81, 275 P.3d 905 (2012) (holding that it is error to instruct
the jury on the degree of certainty factor and discouraging its future use). However, Bell
did not raise the issue on direct appeal or in his K.S.A. 60-1507 motion. See Boleyn, 297
Kan. at 633 (an issue not briefed by the appellant is deemed waived and abandoned).

Moreover, Bell's sole authority is Mitchell, which he only cites in passing for the
proposition that "[c]onsidering [Peters' statement that he was 90 percent sure of his
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identification] and the prejudice it is now recognized to cause, it would seem a more
effective defense to have [Peters'] testimony withheld from the jury." The failure to
support a point with pertinent authority or show why it is sound despite a lack of
supporting authority or in the face of contrary authority is akin to failing to brief the
issue. Tague, 296 Kan. at 1001. Bell has, therefore, abandoned the point.

Regardless, trial counsel would have been unable to establish that Peters'
eyewitness identification was inadmissible. Kansas courts use a two-step process when
determining whether an eyewitness identification is admissible. They first examine
whether the police procedure used to obtain the identification was unnecessarily
suggestive, and if so, courts then consider whether there was a substantial likelihood of
misidentification under the totality of the circumstances surrounding the identification.
Mitchell, 294 Kan. at 476; see State v. Cruz, 297 Kan. 1048, 1061, 307 P.3d 199 (2013)
(concluding that "unnecessarily" is the proper qualifier for "suggestive").

Under the first step, identification procedures are unnecessarily suggestive if
officers conducting the proceeding give the witness information that highlights one of the
individuals before the witness makes a selection or the officers made suggestions about
who the witness should select. State v. Corbett, 281 Kan. 294, 305, 130 P.3d 1179
(2006). "In particular, a photo lineup is unnecessarily suggestive if the individuals
depicted do not fit within the witness' description or if there is a gross disparity between
the defendant's photograph and the others." State v. Lewis, 299 Kan. 828, 842, 326 P.3d
387 (2014).

Furthermore, courts are confident that juries have the knowledge and experience to
determine the reliability of eyewitness identifications. State v. Lopez, 299 Kan. 324, 329-
30, 323 P.3d 1260 (2014). If the district court instructs the jury on the proper eyewitness
reliability factors and defense counsel engages in "'vigorous cross-examination and
persuasive argument . . . dealing realistically with the shortcomings and trouble spots of
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the identification process,' the defendant's rights are protected." Corbett, 281 Kan. at 306
(quoting State v. Warren, 230 Kan. 385, 395, 635 P.2d 1236 [1981]).

Here, Detective Loren Johnson, of the Wichita Police Department, interviewed
Peters the morning after the shooting while he was recovering in the hospital. Around 3
p.m. that day, Detective Johnson returned to the hospital and presented Peters with a
series of 14 photographs of individuals police had learned that day may have been
involved in the shooting. Included in the series was a November 15, 2005, photograph of
Bell and a January 9, 2007, photograph of Bryant. Peters initially identified Bell as the
driver of the car and Bryant as the shooter. At some point, Peters also watched the video
surveillance from the nightclub with another detective. Peters later identified Bell as the
shooter and Bryant as the driver. Peters stated that he was only 90 percent certain that
Bell was the shooter. During trial, Peters explained why he was only 90 percent certain:

"Because, um, when I go back over it in my mind and stuff, and look at all these
photos, I mean, that's the closest description I can fit. It wasn't that many people there. So
it ain't like it's a lot of people I got to pick through. I mean, it was this three, put their
lineups up, and I showed them, I told them exactly what I knew. I mean, I never met him
in my life, it's not like, you know, I knew him and I just wanted him to go to jail, or be in
trouble, or anything like that, it wasn't nothing like that. But 90 percent of me tell me
that's him."

Shortly thereafter, trial counsel cross-examined Peters at length about his
recollection of the events, including his identification of Bell. At one point, the following
exchange took place between trial counsel and Peters:

"Q. So when people weren't telling you who it was, you identified Arthur as the
passenger?

"A. Uh-huh. I didn't even know his name.

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"Q. What do you mean, you said Arthur was the shooter, and he's Greg (indicating);
right?

"A. Well, I told them that, um, I believe I told them that he was the driver because he had
short hair. And that, um, Arthur was the one who shot me.

"Q. That Arthur was the passenger, and he was the one that shot [you]?

"A. Off identification; yes.

"Q. So the first identification you gave was that Arthur shot you?

"A. Yeah.

"Q. And then later, Espinoza told you the guy's name who shot you is Arthur Bryant?

"A. Yeah.

"Q. Did he tell you that it was a white car?

"A. Uh-huh; I knew that.

"Q. You did?

"A. Yeah, I knew that.

"Q. How come, when you met with the detectives, you told them it was a silver Chevy
Malibu?

. . . .

"Q. And was that also then when you told them that the shooter was heavyset and had on
a blood shirt?

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"A. Um, I don't know, I think that was the first, the first detective that came in.

"Q. Okay. Which detective did you tell that the shooter had on a red shirt?

"A. I don't even know. I don't even remember that.

There is nothing in the record on appeal indicating that police either suggested that
Peters select an individual or that police highlighted Bell or Bryant before Peters made
his selections. Moreover, Bell does not assert that the photographs failed to depict
individuals who generally fit within Peters' description or that there was a gross disparity
between Bell's photograph and the remaining photographs. Indeed, trial counsel stated
that he had no objection to the admittance of the photographs into evidence. Likewise,
there is nothing in the record to suggest that the video presented to Peters suffered from
similar defects. As such, trial counsel did not have any foundation on which to argue that
the lineup was unnecessarily suggestive. See State v. Levy, No. 94,012, 2006 WL
3772838, at *2, 4 (Kan. App. 2006) (unpublished opinion) (finding that a photographic
lineup of 6 to 10 photographs was not unnecessarily suggestive where the witness pointed
to 1 of the photographs and said that "it looked similar, but he wasn't for sure"), rev.
denied 283 Kan. 932 (2007).

Instead, Peters' fuzzy recollection of the shooter was properly addressed through
trial counsel's "vigorous cross-examination" of Peters. See Corbett, 281 Kan. at 306. As
such, trial counsel was not ineffective for failing to seek its suppression.

Moreover, the parties' arguments illustrate why courts are to avoid second-
guessing trial counsel's strategy. The State argues that it may have been a good strategy
by trial counsel to not challenge the admission of the testimony because it provided him
an opportunity to exploit the weakness of Peters' identification. On the other hand, Bell
argues that "it would seem a more effective defense to have [Peters'] testimony withheld
from the jury." "Even though experienced attorneys might disagree on the best tactics or
15

strategy, deliberate decisions based on strategy may not establish ineffective assistance of
counsel." Flynn, 281 Kan. 1154, Syl. ¶ 5. Such is the case here.

Utilization of Ballistics Evidence

Further, Bell contends that trial counsel was ineffective because he failed to obtain
expert ballistics testimony. Bell claimed in his K.S.A. 60-1507 motion that such
testimony would have impeached the credibility of William Banks' eyewitness testimony
and would have established that Judice "was not shot at close range because there was no
gunpowder residue on the clothing or body of the victim."

During trial, Gary Miller, a firearm toolmark examiner, testified regarding 17
cartridge casing that police recovered from the scene. Miller was able to trace the
cartridge casings to two handguns found at the scene and an unidentified weapon that was
never recovered. Miller never testified about the presence of gunpowder residue on
Judice. On cross-examination, trial counsel specifically asked Miller about the extent of
his testimony:

"Q. Now, based on what you know about the crime scene and the evidence that you've
been shown, you cannot tell anybody who fired the first shot?"

"A. No, I cannot.

"Q. And you cannot tell where the shots were fired from?

"A. No, I cannot."

Williams Banks—a witness to the shooting—also testified about his recollection
of the events. Although Banks had significant difficulty in remembering the order of the
events, he eventually identified Bryant as the driver and Bell as the shooter. At one point
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in the testimony, Banks said that he spoke with officers on the night of the shooting but
that he did not want to talk to them because he "didn't want to get involved in it." On
cross-examination, trial counsel established that Banks had consumed "six or seven
drinks" and was "a little drunk" when he witnessed the shooting. Trial counsel also
established that Banks did not identify Bell as the shooter at the preliminary hearing and
only decided to speak with law enforcement officers after he was involved in another,
unrelated shooting.

We believe that the district court properly denied Bell's claim for at least three
reasons. First, trial counsel specifically elicited during cross-examination that Miller
could not identify the shooter or the position of the parties when the shots were fired.
Second, Banks never testified to the precise location of parties at the time of the shooting,
and trial counsel did an excellent job of impeaching Banks' testimony. Third, Bell is
unable to demonstrate prejudice because he has failed to explain how an expert witness
may have provided meaningful testimony. See Kidd v. State, No. 111,234, 2015 WL
4460380, at *5-6 (Kan. App. 2015) (unpublished opinion) (defendant unable to show
how expert could provide meaningful testimony to counter coroner's testimony who
admitted that she could not discern the distance between the shooter and the victim);
Alderson v. State, No. 89,220, 2003 WL 22532936, at *3 (Kan. App. 2003) (unpublished
opinion) (defendant failed to demonstrate how a forensics expert could have presented
any meaningful testimony showing that the bullets the defendant fired could have caused
the victim's death). We, therefore, find that the trial counsel's representation did not fall
below an objective standard of reasonableness and that Bell is unable to show prejudice
regarding the utilization of a ballistics expert.

Affirmed in part, reversed in part, and remanded with directions.