Briseno v. State

NOT DESIGNATED FOR PUBLICATION

No. 117,778

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

PATRICIO BRISENO,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed November 16,
2018. Affirmed.

David H. Matthews, of Kansas City, for appellant.

Michelle Fuchs McFarlane, assistant district attorney, Mark A. Dupree Sr., district attorney, and
Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., PIERRON and LEBEN, JJ.

PER CURIAM: In 2009, Patricio Briseno was sentenced to life in prison for first-
degree premeditated murder and three counts of attempted first-degree murder. The
charges arose after a passenger in an SUV fired at some boys standing outside; the State
charged Briseno with being the driver.

After the Kansas Supreme Court affirmed his convictions and sentence, Briseno
filed a habeas corpus claim under K.S.A. 60-1507 alleging that his trial counsel had been
ineffective. The district court held an evidentiary hearing and denied the motion.
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Briseno argues on appeal that his counsel was ineffective because his attorney:
(1) was inexperienced in defending felony cases; (2) should have pursued an alibi defense
at trial; (3) should have requested additional jury instructions; (4) inadequately handled
evidence of an eyewitness identification; and (5) wasn't adequately prepared for trial.
After our review of the record, we find that Briseno's attorney provided constitutionally
adequate representation. We will summarize our view of the issues here, with a more
detailed ruling later in this opinion.

While this trial was the attorney's first murder trial, she zealously represented
Briseno. The district court found that her decision not to pursue an alibi defense was a
deliberate one because the attorney thought the evidence in this case—testimony that
Briseno was picking his brothers up from school when the murder happened—would
have had credibility issues. That was a reasonable strategic decision, one a defense
attorney can properly make.

Next, Briseno argues that his attorney should have requested a jury instruction that
his "mere presence or association" with someone committing a crime doesn't necessarily
mean he was involved and that merely being a gang member doesn't mean someone
committed murder. We find nothing unreasonable in the attorney's failure to ask for the
"mere presence or association" instruction: Briseno didn't present a defense suggesting
that he was merely present when a crime was committed but wasn't involved in its
commission of the crime. Instead, his defense was that he wasn't present at all. Since
Briseno's defense wasn't based on his having been present but a mere bystander, the
attorney's failure to ask for this instruction wasn't unreasonable. And gang membership
was the alleged motive for the shooting, so it was a central issue that the jury had to
consider.

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As for Briseno's claim regarding the eyewitness-identification testimony of one
key witness, his attorney did a thorough cross-examination of the witness. And Briseno's
general claims that his attorney didn't spend enough time preparing for trial doesn't take
us anywhere. Even if his attorney's preparation was inadequate (which hasn't been
shown), Briseno also would have to show that this impacted the trial in some significant
way. He has not done so.

In short, Briseno did not show that his trial counsel's representation fell below an
objective standard of reasonableness. Nor did he show that any inadequacy in the
attorney's representation materially hurt his defense. We therefore affirm the district
court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts of the criminal case against Briseno were set out in the
Kansas Supreme Court's 2014 decision in his direct appeal. State v. Briseno, 299 Kan.
877, 879-81, 326 P.3d 1074 (2014). We will briefly recount them here.

In 2009, a group of four teenage boys were gathered in front of a Kansas City,
Kansas, home when a black SUV approached the house and a person in the SUV started
shooting. One of the bullets fired from the SUV struck and killed 13-year-old Ricardo
Zamora. Another bullet hit one of the other boys; he recovered. The two other boys
weren't hit.

Briseno and his codefendant, Juan Lopez, were tried together in October 2009.
Lopez was acquitted, but the jury convicted Briseno of one count of first-degree murder
and three counts of attempted first-degree murder.

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The Kansas Supreme Court affirmed Briseno's convictions in 2014. Briseno, 299
Kan. at 889. Briseno then filed a habeas corpus claim under K.S.A. 60-1507 arguing that
his trial had been unfair because his retained attorney, Jean Ann Uvodich, had been
ineffective. The claims specific to this appeal are that Uvodich was ineffective because:
(1) she didn't file a motion in limine to prevent the jury from hearing evidence of an
eyewitness identification of Briseno; (2) she "had very little experience in conducting jury
trials prior to representing defendant for First Degree Murder"; (4) she was inadequately
prepared for trial; (5) she "failed to investigate alibi witnesses that could have testified that
Petitioner was at another location at the time of the murder"; and (6) she failed to request
jury instructions "limiting the jury's use of evidence relating to gang membership" and
"instruct[ing] the jury that 'mere association with the principals who actually commit the
crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an
aider or abettor.'"

The district court held an evidentiary hearing, and we'll provide a brief overview
of that testimony here. We will add additional details as we discuss the specific claims
presented on appeal.

Briseno called five witnesses: Briseno; Briseno's brothers, Ignacio and Jose;
Debera Erickson, the attorney who represented codefendant Juan Lopez at trial; and
Gayle Kershaw, an employee of the county sheriff's department. Briseno said that
Uvodich's consultation with him had been insufficient and that he had told her that he had
been picking his brothers up from school when the murder took place. Ignacio and Jose
testified that Briseno had, indeed, picked them up from school that day, in neighboring
Johnson County, at about the time of the murder. Erickson testified about some perceived
deficiencies in Uvodich's representation and experience. Kershaw testified about the
dates and times jail records showed Uvodich had met with Briseno before trial.

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The State called Uvodich. She testified about her experience and the decisions she
made about how to approach Briseno's defense.

The district court denied Briseno's motion in a 27-page opinion. The court
concluded that Uvodich had provided an adequate defense under constitutional standards.
The court separately concluded that even if some of the points Briseno complained about
had been below objective standards for criminal representation, there was no prejudice to
Briseno.

Briseno has appealed to our court.

ANALYSIS

When the district court has conducted an evidentiary hearing on a habeas claim
under K.S.A. 60-1507, as it did here, we apply a two-part standard of review, asking
(1) whether the district court's factual findings are supported by substantial evidence and
(2) whether those findings are sufficient to support the district court's conclusions of law.
White v. State, 308 Kan. 491, 504, 421 P.3d 718 (2018); see Bellamy v. State, 285 Kan.
346, 354-55, 172 P.3d 10 (2007). Substantial evidence is evidence that a reasonable
person would find sufficient to support a conclusion. White, 308 Kan. at 504. We owe no
deference to the district court's conclusions of law, so we must independently determine
whether habeas relief should have been granted based on the facts found by the district
court that are supported by substantial evidence. 308 Kan. at 504; see Bellamy, 285 Kan.
at 354-55.

Under K.S.A. 2017 Supp. 60-1507(b), a district court shall set aside a defendant's
conviction if, among other reasons, "there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack." One such constitutional right is the Sixth Amendment's right to counsel, which
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includes the right to effective counsel. Strickland v. Washington, 466 U.S. 668, 686, 669,
694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Thus, ineffective assistance of counsel is a
denial or infringement of constitutional rights that renders a judgment vulnerable to
collateral attack (that is, an action separate from the original case or direct appeal).
See K.S.A. 2017 Supp. 60-1507(b).

When a defendant seeks to set aside the result of a criminal trial on the ground that
the defense attorney provided inadequate assistance, the defendant has the burden to
show (1) that the attorney's work was below minimum standards and thus was
constitutionally deficient and (2) that the attorney's substandard work prejudiced the
defense. Mattox v. State, 293 Kan. 723, Syl. ¶ 1, 267 P.3d 746 (2011). Since these tests
were initially outlined in Strickland, courts call them the Strickland standards; the two
parts of the test are commonly called the performance prong and the prejudice prong. 293
Kan. at 725-26. To meet the prejudice prong, Briseno has to show that but for his
attorney's deficient performance, there's a reasonable probability that the trial's outcome
would have been different. State v. Cheatham, 296 Kan. 417, Syl. ¶ 6, 292 P.3d 318
(2013). When reviewing claims of ineffective assistance of counsel, "judicial scrutiny of
counsel's performance is highly deferential, and a strong presumption exists that counsel's
conduct is reasonable." Shumway v. State, 48 Kan. App. 2d 490, 497, 293 P.3d 772
(2013).

Briseno argues in this appeal that his trial counsel was ineffective in five specific
ways that prejudiced him at trial. We discuss each one separately.

Uvodich's Lack of Felony-Trial Experience

Briseno begins by arguing that Uvodich wasn't competent to undertake his case
because of her limited experience in trying felony cases. Uvodich testified that she had
tried five or six jury trials as a defense attorney before she was retained by Briseno's
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family. Of those trials, none were felony cases but she was the lead defense attorney in
each one. Briseno argues that Uvodich wasn't competent to represent him during his
murder trial because she hadn't defended a murder trial before she tried Briseno's case.

The problem with this claim is that just because Uvodich hadn't defended a murder
charge in a jury trial before doesn't mean that she provided deficient representation.
Briseno still must point to specific things that Uvodich did or failed to do that were below
minimum standards.

Briseno compares his case to one our court handled in the past, Larson v. State,
No. 90,603, 2004 WL 1443901 (Kan. App. 2004) (unpublished opinion). In that case,
Larson claimed he was prejudiced by the fact that his jury trial was the first his attorney
had tried. Our court rejected that claim, explaining that Larson's attorney "obtained
assistance and guidance from senior members of his firm. He secured several possible
plea offers from the State, filed several pretrial motions, made objections, effectively
cross examined witnesses, and called several witnesses on his client's behalf. He made a
coherent and logical closing argument." 2004 WL 1443901, at *5. Our court concluded
that Larson hadn't been prejudiced simply because it had been his attorney's first jury
trial. 2004 WL 1443901, at *5.

Briseno says that unlike the attorney in Larson, Uvodich wasn't assisted by other
attorneys in preparing for the trial. It's true that Uvodich didn't testify that she received aid
from other attorneys, but Larson doesn't suggest that failing to seek guidance from more
experienced attorneys is a dispositive factor in proving ineffective assistance. Instead of
focusing solely on whether Larson's attorney had help preparing for trial, it considered the
other steps that the attorney took in preparing. In this regard, the assistance Uvodich gave
Briseno is similar to the assistance Larson received. Like Larson's attorney, Uvodich filed
pretrial motions to keep evidence out of the trial and responded to the State's pretrial
motions. She made objections at trial and extensively cross-examined the State's witnesses.
8

And she made coherent and logical closing arguments in which she fully explained her
theories of defense and pointed out weaknesses in the State's case.

Briseno also notes that Uvodich didn't have the experience required in the
Wyandotte County District Court to be appointed to represent an indigent defendant in a
similar case. Here, though, Briseno's family retained Uvodich to represent him rather than
asking the court to appoint counsel for him on the basis that he couldn't afford to hire an
attorney. It's certainly appropriate for the court to set standards for appointed counsel to
make sure that those who are appointed are well qualified for the specific type of case. But
that doesn't mean that a defendant who hires counsel without the same qualifications or
experience will automatically be entitled to a new trial simply based on the attorney's lack
of some past experience. Briseno must show that Uvodich actually failed to provide
adequate representation in some respect. We move on, then, to Briseno's specific claims of
deficient performance.

Failure to Present Witnesses to Support an Alibi Defense

Briseno claims Uvodich's representation was deficient because she didn't pursue a
potential alibi defense. Specifically, Briseno contends that Uvodich's failure to
investigate the potential alibi defense amounted to ineffective assistance of counsel
because the evidence "should have [been] submitted to the jury that [Briseno] could not
have been involved [in the murder] because he was picking up his siblings from school,"
evidence that "may have resulted in an acquittal." The State counters that Uvodich's
decision not to pursue an alibi defense was a reasonable strategic decision.

At the evidentiary hearing on Briseno's habeas claim, Briseno said that he had
originally told Detective Willie Jenkins that he had picked up both his brothers and his
sister, but later said he had only picked up his brothers. The State presented evidence at
Briseno's murder trial that his sister hadn't been at school that day at all, which undercut
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the statement Briseno had initially given to Jenkins. Briseno also testified at the habeas
hearing that during the investigation, he had told Uvodich that he had been picking up his
brothers when the murder happened but that she never discussed the possibility of his
brothers testifying as witnesses.

Both of Briseno's brothers, Ignacio and Jose, testified at the hearing. Ignacio, who
was 11 years old at the time of the murder, told the court that his brother had picked both
him and Jose up from school on the day of the murder. Ignacio denied having ever met
Uvodich or having been "questioned by law enforcement about [his] presence with [his]
brother on that day." Jose, who was 13 years old at the time of the murder, also said his
brother had picked him up from school on the day of the murder and that he had never
spoken with Uvodich.

Uvodich was asked during her testimony if she had ever discussed a potential alibi
defense with Briseno. She emphasized that Briseno had never personally protested to her
that he couldn't have committed the crime because he had been on an innocent errand at
the time:

"You know[,] it was interesting because when I met with the family, they talked about
that my client had been taking the kids to school at that time. However, when I met with
my client, he never suggested that he was anywhere taking or picking his siblings up
from school and the police reports and the investigation reports . . . show that the children
had missed school that day, so it is not like I walked into a room to discuss with my client
and he was, like, '[O]h, my [G]od, I can't believe they're charging me with this? I was
clearly at school picking up my brother.' That is not at all what I heard and . . . I wanted
to be sure that we weren't suborning any kind of perjury and that we weren't going to put
the credibility of my witnesses on the line . . . ."

Later during her testimony, Uvodich again emphasized that Briseno never suggested to
her that he had been picking up his brothers when the murder took place.
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Uvodich admitted that she didn't speak with Briseno's brothers about the matter.
But she also testified that neither Briseno nor his family ever approached her and asked
her to consider the alibi-witness testimony. Likewise, Uvodich said that she didn't recall
Briseno or his family asking that she speak with Briseno's brothers about whether Briseno
was, in fact, picking them up from school when the murder took place. When asked
whether she had any concerns regarding a potential alibi defense of Briseno picking up
his brothers from school, Uvodich explained that her "concerns came down to . . .
credibility and whether [she] would be able to present an alibi defense that was truthful
. . . especially after reviewing various records." She concluded by saying she felt
presenting an alibi defense could be potentially damaging to Briseno because of
credibility issues.

Uvodich also described her theories of defense for trial and explained how the
alibi defense didn't fit with her overall trial strategy. Although Uvodich said "there is a
possibility I should have focused more on [the potential alibi defense]," she explained
how that wasn't the major focus or strategy of her defense and "felt that [pursuing that
defense] could be damaging to [Briseno] because of credibility issues." Rather, she
described her defense theories as lack of identification, lack of evidence regarding
Briseno's role in the murder, whether Briseno's vehicle was the vehicle involved, and the
fact that the medical examiner testified that the fatal shot could not have come from the
street. When describing her preparation for the trial, Uvodich emphasized her attempting
to create reasonable doubt, saying that she

"basically took the evidence that [she] had and was trying very diligently to make sure
that because I believed that we had a very good opportunity to provide reasonable doubt
and that reasonable doubt had to do with a lot of things, including the vehicle, including
. . . the lack of identification, lack of anybody's fingerprints on these bullets, all of the
things that were missing."

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The district court held that Uvodich had provided effective counsel and that her
decision to not pursue the potential alibi defense had been a strategic decision made so as
not to jeopardize the credibility of the defense case. The court heard the testimony of
Briseno's brothers, Jose and Ignacio, and found that testimony "remarkably similar,"
suggesting that it was too similar to have been truthful. The court also noted questions
about Briseno's credibility on this subject and that Briseno's mother and sister didn't testify
at the habeas hearing. The court concluded that Uvodich had done some investigation of
the alibi defense but "had concerns about credibility and possible untruthful testimony."
The court also found that she had "legitimate concerns about the truthfulness of her client's
initial statements to the police," apparently referring to his initial statement (disproven by
the State) that he had also picked up his sister that day. The court concluded that her failure
to call the brothers to testify at trial didn't constitute deficient performance.

In some cases, an attorney's failure to investigate, contact, or provide notice of
alibi witnesses has been found to be ineffective assistance of counsel. See, e.g., State v.
James, 31 Kan. App. 2d 548, 553-55, 67 P.3d 857 (2003); State v. Thomas, 26 Kan. App.
2d 728, 731-32, 993 P.2d 1249 (1999), aff'd 270 Kan. 17, 11 P.3d 1171 (2000); State v.
Sanford, 24 Kan. App. 2d 518, 522-23, 948 P.2d 1135 (1997). But when a defendant's
trial counsel conducts a thorough investigation of the facts, witnesses, and law and
concludes, as a matter of strategy, not to call an alibi witness, the representation is
presumed to be effective. See Shumway, 48 Kan. App. 2d at 499-500, 512-13.

We note that the facts in James and Sanford are different from those here. In
James, "appellant testified he repeatedly asked [his attorney] to contact his divorce
attorney . . . as to possib[le] theories of defense." 31 Kan. App. 2d at 554. Here, on the
other hand, Uvodich testified that Briseno never asked her to investigate a potential alibi
defense of picking up his brothers. Also, it appears that the attorney in James didn't make
a strategic decision to not pursue an alibi defense. Rather, the attorney simply reasoned
12

that the potential witness didn't want to testify. 31 Kan. App. 2d at 553. That's not why
Uvodich didn't pursue Briseno's potential alibi defense. Instead, her decision was
informed by her concern that the testimony could have credibility problems. The same
goes for Sanford, where—unlike Uvodich's strategic decision not to pursue an alibi
defense—there was no indication that Sanford's attorney made a deliberate decision to
not investigate the potential alibi witnesses. See Sanford, 24 Kan. App. 2d at 525.

Here, the district court that heard the testimony of Briseno and his brothers
regarding the alibi defense concluded that Uvodich had "legitimate concerns about the
truthfulness of her client's initial statements to police" and "concerns about credibility and
possible untruthful testimony" regarding the alibi defense. The court found that Uvodich
made a conscious choice not to pursue the alibi defense. As she testified in the
evidentiary hearing, she "felt that it could be damaging to [Briseno] because of credibility
issues." The district court's conclusion that Uvodich knew about the potential alibi
witnesses but made a conscious choice to not pursue that line of defense is supported by
the evidence.

In addition, Uvodich used the State's witnesses to pursue a middle ground here,
presenting some information about the potential alibi to the jury without presenting
defense witnesses whose credibility could be seriously challenged. At trial, Detective
Jenkins testified for the State that Briseno said he had picked up his brothers and sister
from school on the day of the murder. Jenkins also said that Briseno "later recanted . . . and
said that his sister got out [of school] early and that his mom had picked her up." On cross-
examination, Jenkins said that "[Briseno] didn't say he picked [his sister] up" but that "he
normally picks his sister up at 2:40." Further, during both opening and closing arguments,
Uvodich addressed the fact that Briseno had told Jenkins that he was picking up his
brothers at the time of the murder. While that claim could have been stronger had Jose and
Ignacio given credible supporting testimony, it also could have evaporated had their
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credibility been successfully challenged. We agree with the district court that Uvodich's
decision was a reasonable strategic choice, not deficient representation.

Failure to Request Jury Instructions

Briseno claims that Uvodich rendered ineffective assistance of counsel when she
failed to ask for two jury instructions: (1) a jury instruction on mere presence or
association and (2) a jury instruction limiting the jury's consideration of Briseno's gang
affiliation.

We first note that Briseno's argument on this issue is limited to a single paragraph
citing a single case:

"In addition to her failure to pursue an alibi claim, Uvodich also failed to ask for
important jury instructions to limit evidence of gang affiliation and on mere presence [or]
association. The Court in State v. Llamas said, 'The "mere presence" or association
language of an aiding in abetting instruction should be given if and only if that is a theory
of the defense.' State v. Llamas, 296 Kan. 246 (2013). In this case, the Defendant argued
alibi, misidentification and that the co-defendant was the shooter. However, that would
not prohibit him from making the argument that if the jury found that Appellant was
driving the vehicle that he is not guilty simply because of mere association of the shooter.
Therefore, it was an error for Ms. Uvodich not to request such an instruction. Similarly,
failure to request an instruction limiting the gang membership was an error which
prejudiced [Briseno]."

While Briseno has raised two potential jury instructions, he has not provided a
particularly well-developed argument about the need for either of them, let alone provide
authority for the proposition that an attorney's failure to request them constitutes
constitutionally inadequate representation. We could reject his claims about jury
instructions for the failure to adequately brief them. See State v. Williams, 298 Kan.
1075, 1083, 319 P.3d 528 (2014) (reciting the rule that "[w]hen a litigant fails to
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adequately brief an issue it is deemed abandoned"). Because of the serious nature of the
case, we will nonetheless discuss these potential instructions.

The first instruction Briseno says Uvodich should have requested is that mere
presence or association with another person who commits a crime doesn't constitute
evidence that a person was aiding or abetting the other person in committing that crime.
See State v. Llamas, 298 Kan. 246, 258-59, 311 P.3d 399 (2013). The district court
concluded that Uvodich didn't err in not requesting a mere presence or association jury
instruction because Briseno didn't present a defense based on the theory that he had
merely been present in the car when shots were fired so "such an instruction would not
have been either required or requested." The court supported its conclusion by explaining
that

"the evidence was that Briseno was the driver of the vehicle from which the fatal shots
were fired [and] the defense presented was misidentification/victim killed by shots not
fired from vehicle/alibi. Briseno did not testify at trial. He did not claim he was present
and driving but did not know his passenger was going to shoot at anyone."

The Llamas case Briseno cites is consistent with the trial court's ruling. In it, our
Supreme Court said that it would be good practice to include mere association or
presence language in a jury instruction "when a defense is based on the theory that a
defendant was merely present and did not actively aid or abet a crime." 298 Kan. at 261.
But Briseno didn't present such a defense—and even now he contends he was picking up
his brothers, not driving the car from which shots were fired. Since Briseno didn't present
a mere presence or association defense, Uvodich didn't err by not requesting mere
presence or association language in the jury instructions.

Briseno also suggests, albeit very briefly, that Uvodich should have requested "an
instruction limiting the gang membership." We presume that Briseno's claim is that
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Uvodich should have asked for an instruction limiting the jury's consideration of
evidence that he was a member of a specific gang that was said to be in conflict with
another gang whose members included the boys who were fired upon. The district court
noted that a pretrial hearing was held regarding gang-related evidence, determining that it
was relevant and what evidence could be presented. The court also noted that "all of the
parties were acutely aware that gang membership and activities were the motivating
factor in this homicide."

It is well established that gang-affiliation evidence is admissible when relevant;
evidence of motive in a murder case is certainly relevant. See State v. Molina, 299 Kan.
651, 656-57, 325 P.3d 1142 (2014); State v. Peppers, 294 Kan. 377, 390, 276 P.3d 148
(2012); State v. Jamison, 269 Kan. 564, 568, 7 P.3d 1204 (2000); Beard v. State, No.
116,697, 2018 WL 911394, at *2-3 (Kan. App. 2018) (unpublished opinion), rev. denied
October 30, 2018. And a limiting instruction telling the jury that evidence of gang
affiliation may only be considered for limited purposes is not required unless requested
and appropriate. Molina, 299 Kan. at 656. Here, the jury might have been told not to
consider the gang affiliation of Briseno and his codefendant on any issue other than their
potential motives in these crimes. But everyone understood that was exactly why the
gang-membership evidence was presented to the jury. We agree with the district court
that Briseno has not shown how a limiting instruction on the consideration of gang
affiliation "would have . . . assisted the jury" or "how he was prejudiced" for the lack of
such an instruction. Uvodich's failure to request this instruction didn't constitute
inadequate representation.

Challenging Key Eyewitness-Identification Evidence

One of the most important witnesses in the murder trial was Patrick Fischer. He
had been delivering mail in the neighborhood when the shots were fired. His testimony
was especially important because he was present and not connected with either gang.
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Before the shooting, Fischer observed a black SUV driving through. He told police
later that day that the driver was a young, Hispanic male with facial hair and that the
vehicle had four occupants. After the vehicle had passed behind him, he heard gunshots,
ducked behind a wall, and eventually looked back to see a gun sticking out of the
vehicle's rear passenger window. At a police photo lineup a few days later, he identified
Briseno as the driver with 70% certainty. But when he testified at a preliminary hearing
in the case, he wasn't able to identify Briseno in the courtroom.

Before trial, Uvodich filed a motion to suppress any identification testimony from
Fischer. She based the motion on several factors, suggesting that the police photo lineup
had been biased and also noting Fischer's later inability to identify Briseno at a court
hearing. But the district court denied her motion, leaving Fischer as an available witness
for trial.

At the trial, Uvodich was surprised when Fischer testified that he was "sure" and
"certain" that Briseno was, indeed, the driver. Briseno argues that her representation of
him was inadequate in challenging Fischer's testimony. He contends that her cross-
examination was inadequate (saying that it didn't cover all the factors set out in State v.
Hunt, 275 Kan. 811, 817-18, 69 P.3d 571 [2003], that a court uses to determine the
admissibility of eyewitness testimony) and that she failed to file a pretrial motion to
prevent the testimony. The district court rejected these claims, noting that Uvodich had
filed a motion to suppress Fischer's testimony and that she extensively cross-examined
him.

We can easily dismiss Briseno's claim that Uvodich should have filed another
motion on this issue. On appeal, Briseno's argument on that issue is limited to one
sentence: "She did not file a motion to suppress identification and did not pursue an
expert in identification before trial and she did not adequately cross examine Mr. Fischer
17

using the factors in Hunt." While Briseno makes additional argument about why the
cross-examination wasn't sufficient, that's all he provides on appeal about why Uvodich's
representation was inadequate for the failure to file further motions to prevent Fischer's
testimony or the failure to hire an expert to testify about why eyewitnesses are sometimes
wrong. That's insufficient to preserve these issues on appeal. See Williams, 298 Kan. at
1083. In addition, as the trial court noted, Uvodich did file a motion to keep Fischer's
identification testimony out of the trial. That motion, which argued that the police photo
lineup had been unduly suggestive and that Fischer's testimony was unreliable, was
denied. There's no reason to believe that a second motion would have been more
successful, and Briseno gives us no legal basis on which to conclude that the district court
should have kept Fischer from testifying to the jury.

We turn, then, to Briseno's complaint that Uvodich didn't adequately cross-
examine Fischer. As Briseno notes on appeal, Kansas courts traditionally look at eight
factors, first announced in the Hunt case, when determining whether eyewitness
testimony should be admitted at trial:

"(1) the opportunity of the witness to view the actor during the event; (2) the witness'
degree of attention to the actor at the time of the event; (3) the witness' capacity to
observe the event, including his or her physical and mental acuity; (4) whether the
witness' identification was made spontaneously and remained consistent thereafter, or
whether it was the product of suggestion; and (5) the nature of the event being observed
and the likelihood that the witness would perceive, remember, and relate it correctly. This
last factor requires the consideration of whether the event was an ordinary one in the
mind of the observer during the time it was observed and whether the race of the actor
was the same as the race of the observer. [Citation omitted.]" 275 Kan. at 817-18.

Briseno argues that Uvodich "did not adequately cross examine Mr. Fischer using the
factors in Hunt." But the Hunt factors were given to guide courts in deciding whether
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police had been unduly suggestive and led the witness to identify the suspect, not as a
guide to cross-examination of an eyewitness at trial.

From our review of the transcript, we agree with the district court that Uvodich
competently cross-examined Fischer. During her cross-examination, Fischer confirmed
that he had initially told officers that the only facial feature of the driver that he could see
"was that he had facial hair." Then, based on the statement he gave police at the time of the
photo lineup, Fischer confirmed that he had identified Briseno as the driver of the vehicle
with only 70% certainly. Uvodich went on to thoroughly question Fischer about the
discrepancy between Fischer's testimony at the preliminary hearing—when he said he
couldn't identify Briseno in the courtroom—and his testimony at trial. She also asked
Fischer about his statement to the police that the vehicle involved in the shooting was a
solid black SUV, which differed from his trial testimony that the SUV was two-toned.

General Trial Preparation

Briseno's final claim is that Uvodich's performance fell below an objective standard
of reasonableness because she didn't adequately prepare for trial. Like his earlier claim that
Uvodich didn't have enough experience to try a jury-trial murder case, this claim fails
because Briseno never shows how any lack of preparation led to any act or inaction by
Uvodich that fell below objectively reasonable standards.

First, Briseno says he only met with Uvodich four or five times for 15 to 20 minutes
each time, an insufficient time for an attorney to discuss plea options. But at his hearing,
Briseno admitted that "[Uvodich] told [him] the only way that [the State was] going to offer
me a plea is if I tell them what I know." He said he turned down that possibility because he
didn't know anything. Uvodich also testified that she discussed the possibility of a plea offer
if Briseno had been willing to "sit down and give them all of the information that he had in
the case," but that "[Briseno] did not want to consider any plea offers." Briseno doesn't point
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to any other evidence showing that the State even considered the possibility of a plea deal
with Briseno.

This was a case in which there were two defendants—Briseno, the alleged driver, and
Lopez, the alleged shooter. It might well have been the case that the State would have been
willing to make a deal with one of the defendants if he had agreed to testify truthfully and
had information that could be used against the other. But Briseno deliberately chose to
forego the chance to reach a plea agreement with the State, so there was no reason for
Uvodich to spend additional time with him discussing potential plea bargains.

Briseno also argues that he didn't have enough time with Uvodich to discuss trial
options, different types of defenses, the evidence against Briseno, or Briseno's rights.
Uvodich's time with Briseno seems small, but time spent at the courthouse before or after
hearings (and not at the jail) may not have been included.

But Briseno admitted that he and Uvodich discussed the motions she intended to file
and that they talked about the evidence against him. Uvodich's testimony and the trial
transcript supports the district court's finding that she was adequately prepared. She said
she reviewed all of the discovery and "discussed the testimony of various witnesses" with
Briseno. Uvodich also discussed how Briseno told her that he wanted to go to trial but
didn't want to testify in his own defense and how she spent time with Briseno to prepare
him for trial. Briseno has not shown any significant thing that Uvodich would have done
differently with additional preparation or additional time spent meeting with him.

We affirm the district court's judgment.