Bell v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,812

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; J. PATRICK WALTERS, judge. Opinion filed May 3, 2019.
Affirmed.

Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, for appellant, and Gregory E. Bell,
appellant pro se.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before LEBEN, P.J., BUSER and STANDRIDGE, JJ.

PER CURIAM: A jury convicted Gregory E. Bell of four felonies, including
voluntary manslaughter for the shooting death of Antonio Judice. Bell filed a K.S.A. 60-
1507 motion alleging numerous claims of ineffective assistance of trial and appellate
counsel, and the district court summarily denied relief. On appeal, we affirmed the
district court's ruling in part but reversed and remanded the case to the district court for
an evidentiary hearing on whether trial counsel was ineffective in failing to interview and
subpoena three witnesses who could have testified in Bell's defense. Following an
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evidentiary hearing on this issue, the district court concluded that counsel's decision not
to have the witnesses testify was the result of an informed strategic decision and that
there was no reasonable probability of a different verdict even if the witnesses had
testified. On appeal, Bell challenges the district court's ruling and raises additional
ineffective assistance of counsel claims.

FACTS

The relevant facts underlying Bell's conviction are set forth in our opinion in State
v. Bell, No. 101,903, 2011 WL 3444200, at *1 (Kan. App. 2011) (unpublished opinion):

"In the early morning hours 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."

The district court sentenced Bell to a controlling 274-month prison term. We affirmed
Bell's convictions on direct appeal. See Bell, 2011 WL 3444200, at *20.

In April 2012, Bell filed a K.S.A. 60-1507 motion alleging, in relevant part,
ineffective assistance of trial counsel. The district court conducted a nonevidentiary
hearing and ultimately concluded that Bell was not entitled to relief. On appeal to this
court, Bell argued that trial counsel was ineffective in several respects, including for
failing to interview and subpoena several witnesses who could have testified in his
defense. A panel of this court affirmed the district court's ruling in part but reversed and
remanded the case to the district court for a determination of whether counsel's failure to
present testimony from Bell's sisters, LaQuitta Bell and Rayshon Bell, and Bell's cousin,
Gnett Johnson, was part of a reasonable trial strategy or constituted ineffective assistance
of counsel. Bell v. State, No. 111,662, 2015 WL 6832758, at *4-6 (Kan. App. 2015)
(unpublished opinion). Specifically, the panel reasoned:

"In their statements, each of the [women] 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 [and
cousin] 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.
[Citation omitted.]" 2015 WL 6832758, at *6.

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In May 2017, the district court held an evidentiary hearing, where the parties
presented testimony from the three women, in addition to testimony from Bell and his
trial counsel, Steven Mank.

Rayshon Bell

Rayshon testified that on February 22, 2008, she arrived at Lightning Joe's with
LaQuitta, Johnson, Bryant, and Bell. Rayshon said that everyone in the group besides
Bell became involved in an altercation with Judice that started inside the club and later
moved outside. According to Rayshon, Bell was not outside but was in front of her, in the
doorway of the club. Rayshon claimed she heard gunshots fired from behind the group
and also heard a female voice yelling, "'Maurice, quit shooting.'" Rayshon said she was
close to Judice when the shots were fired and saw him fall to the ground. Rayshon
claimed that she then saw Bell run out of the club and that he was on the opposite side of
the parking lot from where the shots were fired. Rayshon admitted she did not see who
shot Judice. Rayshon said she did not see Bell pointing a gun out of the passenger
window of a white car or see Bell shoot Judice. Rayshon admitted that when she spoke to
law enforcement after the shooting, she refused to provide a statement. Rayshon said that
before Bell's trial, she told Mank that she had been at the scene of the shooting and that
Peters, not Bell, was the shooter. Rayshon claimed she was never subpoenaed to testify
and never had any further conversation with Mank or his investigators after she told him
Peters was the shooter.

Contrary to Rayshon's assertion that she was never subpoenaed to testify, the State
introduced into evidence a subpoena reflecting that the State personally served Rayshon
on September 8, 2008. Rayshon acknowledged she was in custody in Las Vegas during
Bell's trial.


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LaQuitta Bell

LaQuitta testified to a similar version of events relating to the fight with Judice
and someone firing gunshots from behind the group. LaQuitta also claimed to hear a girl
say, "'Maurice, stop shooting.'" LaQuitta said she saw Peters with a gun after Judice was
shot. LaQuitta also said that Bell was inside the club when the shooting occurred and that
she never saw Bell with a gun. LaQuitta declined to give a statement to law enforcement
but later told Mank what she recalled about the shooting. Like Rayshon, LaQuitta was in
a Las Vegas jail at the time of Bell's trial.

Gnett Johnson

Johnson's testimony was consistent with that of Rayshon and LaQuitta. Johnson
claimed Bell was inside the club when the gunshots were fired from behind the group in
the parking lot. Johnson never saw Bell with a weapon, shooting a gun, or fighting with
Judice. Johnson heard a voice behind her say, "'Maurice, stop shooting. You shot him.'"
Johnson conceded, however, that she did not see who the shooter was and did not see
anyone fire a gun. Johnson refused to give a statement to law enforcement but told Mank
what she had observed and that she wanted to testify at Bell's trial. According to Johnson,
Mank told her that she was hostile and that he did not want her to testify. Johnson said
she did not attend Bell's trial because she was working.

Gregory Bell

Bell testified that when the shots were fired, he was outside the bar and had
followed the crowd across the parking lot as the fight between his sisters, his cousin, and
Judice continued. Bell claimed the shots came from the other side of the parking lot. Bell
said he saw Peters shoot into the crowd and heard Peters' sister yell, "'Maurice, quit
shooting.'" Bell denied possessing a gun or shooting Judice.

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Bell claimed he told Mank that he wanted his sisters and cousin to testify at trial
and was under the impression that their testimony was going to be part of his defense.
Bell testified that his sisters and cousin "definitely" would have testified if Mank had
asked them to. Bell said he also told Mank about additional witnesses and other evidence
that would corroborate their version of events, but he believed Mank failed to explore or
use any of this evidence at trial. Bell said he was baffled that Mank relied on Espinoza—
who testified that Bryant shot Judice—as a defense witness because Bell specifically had
told Mank that Espinoza was lying.

Bell claimed that he would have testified at trial if his sisters and cousin had
testified. Bell said that without their testimony, there was no evidence to corroborate his
story.

Steven Mank

Mank testified he had been a criminal defense attorney for 31 years and he had
tried around 250 cases and handled hundreds of murder cases throughout his career.
Mank did not have Bell's case file because he had given it to Bell's appellate attorney,
whom Mank was unable to locate before the hearing. In lieu of the case file, Mank used
trial transcripts and notes and other correspondence from his computer to refresh his
memory about Bell's case and his representation of Bell.

Mank did not specifically recall meeting with Rayshon, LaQuitta, and Johnson,
but his notes reflected that he met with Bell's entire family for six hours about a month
before trial. Mank recalled that he was hesitant to call the three women as witnesses
because they were active participants in the events leading up to the shooting and he
would not have wanted to subject them to cross-examination by the prosecutor. Mank
also noted that the women were related to Bell, which compromised their credibility.
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Mank recalled trying to subpoena Johnson in the event her testimony was needed, but the
subpoena was not served.

Mank testified that the ballistics evidence showed there were at least three guns
fired on the night of the shooting and that there was conflicting evidence about who the
shooter was. Espinoza, who testified for the State, testified that he saw a gun in Bryant's
hand. In light of evidence implicating Bryant as the shooter, Mank testified that his trial
strategy was to focus on Bryant. Mank recalled there was evidence that Peters shot a gun
that night, but there was no specific evidence showing that Peters shot Judice. Instead,
Mank believed the evidence showed that Peters was exchanging gunfire with someone in
a car and that the gunfire was not directed toward Judice. Mank agreed, in hindsight, that
it was possible the jury's verdict could have been different if the jury had heard testimony
from Bell's sisters and cousin. Mank testified, however, that he had to make a judgment
call and that he made decisions in Bell's case based on his experience and the way the
evidence came in. Mank felt that the State's witnesses were helpful to Bell and believed
that the evidence was overall favorable to the defense.

After hearing the above testimony and considering arguments from the parties, the
district court held that Bell was not entitled to relief on his ineffective assistance of
counsel claim. The court found that Mank's choice not to present testimony from
Rayshon, LaQuitta, and Johnson was an informed, strategic decision and that even if they
had testified, there was no reasonable probability of a different outcome. The court also
declined to consider Bell's additional claims of ineffective assistance of counsel as
outside the scope of the remand order. Bell timely appeals.

ANALYSIS

On appeal, Bell argues the district court erred in denying his claim that Mank was
ineffective by failing to present testimony from Rayshon, LaQuitta, and Johnson. Bell
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also argues Mank was ineffective in several additional respects. We address each of Bell's
arguments in turn.

Ineffective assistance relating to Rayshon, LaQuitta, and Johnson as witnesses

Bell contends that Mank's failure to present testimony from Rayshon, LaQuitta,
and Johnson constituted deficient performance and that he suffered prejudice as a result.

An appellate court exercises a mixed standard of review when reviewing an appeal
from the district court's denial of a K.S.A. 60-1507 motion after a full evidentiary
hearing. We review the district court's findings of fact to determine whether the findings
are supported by substantial competent evidence and are sufficient to support the court's
conclusions of law. Appellate review of the district court's ultimate conclusions of law is
de novo. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013). An appellate court
reviews the district court's factual findings and legal conclusions on claims of ineffective
assistance of counsel under the same standard of review. See State v. Butler, 307 Kan.
831, 853, 416 P.3d 116 (2018).

To prevail on a claim of ineffective assistance of counsel, a movant must establish
(1) that the performance of defense counsel was deficient under the totality of the
circumstances and (2) prejudice, i.e., that there is a reasonable probability the jury would
have reached a different result absent the deficient performance. Sola-Morales v. State,
300 Kan. 875, 882-83, 335 P.3d 1162 (2014) (citing Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).

Judicial scrutiny of counsel's performance on a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). The reviewing
court must strongly presume that counsel's conduct fell within the broad range of
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reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987
(2014). "[T]he [movant] bears the burden of demonstrating that trial counsel's alleged
deficiencies were not the result of strategy." Sola-Morales, 300 Kan. at 888. To establish
prejudice, the movant must show a reasonable probability that, but for counsel's deficient
performance, the outcome of the proceeding would have been different, with a reasonable
probability meaning a probability sufficient to undermine confidence in the outcome.
State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015).

Although the right to make key decisions such as what plea to enter, whether to
waive a jury trial, or whether to testify belong to the defendant, strategic and tactical
decisions are within the exclusive province of defense counsel. Flynn v. State, 281 Kan.
1154, 1163, 136 P.3d 909 (2006). "'[S]trategic decisions made by trial counsel based on a
thorough investigation are virtually unchallengeable.'" Fuller v. State, 303 Kan. 478, 488,
363 P.3d 373 (2015). The decision whether to call a particular witness is a matter of trial
strategy so long as counsel conducted some investigation and had enough information
upon which to base that decision. Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733
(1972); State v. Lewis, 33 Kan. App. 2d 634, 648, 111 P.3d 636 (2003). "Even though
experienced attorneys may disagree on the best tactics or strategy, deliberate decisions
based on strategy may not establish ineffective assistance of counsel." Flynn, 281 Kan. at
1165.

Here, the district court ultimately found that Bell did not meet the first prong of
the Strickland test because Mank's performance was not deficient. In reaching this
conclusion, the district court found that Mank's decision not to call the three witnesses at
issue was a legitimate trial strategy:

"Under the first prong of the Strickland test, the testimony from the remand
hearing definitively shows that Mank did not provide objectively unreasonable
representation. The law allows for him to dictate what witnesses are called, provided he
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makes informed strategic decisions. Here, the evidence presented at the remand hearing
definitively shows that Mank made an informed strategic decision not to call the three
women as witnesses. All witnesses at the remand hearing agreed that Mank was informed
about the proposed testimony of the three women, and movant testified that he and Mank
had discussed their proposed testimony in the context of possible defenses. Gnett even
testified that Mank told her that she was hostile and would not be called as a witness. The
decision not to call the three female witnesses was simply one within Mank's purview as
trial counsel, drawing upon his experience and the evidence presented. Movant may not
now second guess Mank's informed strategic decision in hindsight and attempt to
undermine Mank's choice to employ the most basic and valid defense that a defense
attorney can employ—capitalizing on perceived weaknesses and inconsistencies in the
State's evidence to create reasonable doubt.
"Also, a review of the evidence at the remand hearing shows that Mank had
plenty of reason to be concerned about the testimony from the three female witnesses.
The evidence at trial established that Maurice was shooting a gun that night. But at the
remand hearing, the three female witnesses testified that they did not see the shooting
occur. They merely heard someone yelling after the fact. And each witness claimed that
movant was not outside when the shooting occurred. Yet, the video evidence at trial
showed that movant was involved in the altercation outside, and movant testified at the
remand hearing that he was outside in the crowd during the fight before the shooting.
Also, despite being certain that Maurice was the shooter and that movant was inside the
building, none of the three female witnesses provided the police with such information;
instead, they allowed movant to stand trial for crimes that he could not possibly have
committed under their version of events. The three female witnesses lacked credibility
and would have been exposed by the prosecutor, just as Mank feared. If they had taken
the stand and the jury perceived them to be liars, it would have undermined the entire
case by removing any chance of acquittal or a lesser verdict. Mank was authorized and
justified in making the judgment call regarding the three female witnesses."

We find the district court's conclusion that Mank's decision not to call the three
witnesses was a legitimate trial strategy is supported by substantial competent evidence.
At the evidentiary hearing, Rayshon, LaQuitta, and Johnson each testified that they were
involved in an altercation with Judice before the shooting. All three women refused to
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speak with law enforcement thereafter. Testimony from the women would have been
subject to considerable scrutiny given their involvement in the underlying altercation and
their refusal to speak with law enforcement.

Bell suggests that there would have been no risk to presenting the women's
testimony, claiming he would have been no worse off than he was by its omission. But
this argument ignores the fact that the version of events presented by the three women
was contrary to other evidence presented at trial and, even more significantly, contrary to
Bell's own testimony at the evidentiary hearing. The women each testified that Bell was
inside the club during the altercation when shots were fired from behind them by an
unknown shooter. Although the video from the club is not included in the record on
appeal, the court's November 6, 2017 journal entry on remand reflects that surveillance
from that video placed Bell in the parking lot at the time of the shooting. And Bell's own
testimony at the evidentiary hearing placed him in the parking lot behind the fight when
the shooting occurred. Mank testified to his belief that the State's evidence had
weaknesses and inconsistencies and that his strategy was to highlight those weaknesses in
order to establish reasonable doubt. Introduction of testimony from the three women that
was contrary to the video evidence and Bell's own testimony could have undermined
Bell's case.

Bell argues that testimony from his sisters and cousin was necessary to refute the
testimony of Banks, who identified Bell as the shooter. But Mank was able to challenge
Banks' credibility during cross-examination by eliciting testimony that Banks had
consumed "six or seven drinks" and was "a little drunk" when he witnessed the shooting.
Mank also established that Banks did not identify Bell as the shooter at the preliminary
hearing and only decided to provide that information to law enforcement after he was
involved in another, unrelated shooting.

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Simply put, there is substantial competent evidence in the record to support the
district court's conclusion that Mank's performance was not deficient. Mank made a
reasonable strategic decision not to present testimony from Rayshon, LaQuitta, and
Johnson after investigation revealed that their respective testimonies would not benefit,
and in fact may harm, Bell's case. Given our finding that Mank's performance was not
deficient, we need not reach Bell's arguments alleging prejudice as a result of deficient
performance. The district court did not err in denying Bell's ineffective assistance of
counsel claim.

Additional ineffective assistance of counsel claims

Bell also complains that Mank was ineffective by (1) failing to utilize alleged
exculpatory video evidence; (2) failing to investigate Kevin Heard, Casey Haines, and
Michael Schrader as potential defense witnesses; (3) failing to investigate 911 dispatch
tapes; and (4) failing to communicate with him before trial. Bell suggests that these
claims may be addressed because they relate back to his original K.S.A. 60-1507 motion.

But these issues were not included in the mandate issued to the district court on
remand and are therefore not properly before us for review. See Kelly, 298 Kan. at 971
(issues not raised before district court cannot be raised on appeal). Generally, on remand
for further proceedings after a decision by an appellate court, the district court must
proceed in accordance with the mandate and is prohibited from entertaining issues
beyond the scope of the mandate. State v. Collier, 263 Kan. 629, 636, 952 P.2d 1326
(1998); see State v. DuMars, 37 Kan. App. 2d 600, 603, 154 P.3d 1120 (2007) (on
remand, district court is obligated to effectuate mandate and may consider only "those
matters essential to the implementation of the ruling of the appellate court").
"Interpretation of an appellate court mandate and the determination of whether the district
court complied with it on remand are both questions of law subject to de novo review."
State v. Morningstar, 299 Kan. 1236, 1240-41, 329 P.3d 1093 (2014).
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This court's mandate remanded Bell's ineffective assistance of counsel claim to the
district court "for an evidentiary hearing in order to decide whether the failure to call
[Rayshon, LaQuitta, and Johnson] was part of a reasonable trial strategy or constituted
ineffective assistance of counsel." Bell, 2015 WL 6832758, at *6. Based on this language,
the sole purpose of the remand was for the district court to determine whether Bell's
ineffective assistance of counsel claim relating to Mank's failure to offer testimony from
the three women had merit. Any additional claims of ineffective assistance of counsel do
not relate to the limited purpose for which the case was remanded to the district court.
Like the district court, we similarly are precluded from addressing Bell's additional
claims of error.

Affirmed.