Davis v. State

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NOT DESIGNATED FOR PUBLICATION

No. 112,788

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOHN DAVIS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed December 11,
2015. Affirmed.

Craig A. Lubow, of Kansas City, for appellant.

Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., GARDNER, J., and JOHNSON, S.J.

Per Curiam: John Davis appeals the summary denial of his K.S.A. 60-1507
motion. On appeal, Davis argues that he was entitled to an evidentiary hearing on his
motion based on his allegations of ineffective assistance of trial counsel, sentencing
counsel, and appellate counsel. Davis requests that this court remand his case to the trial
court for a full evidentiary hearing on his K.S.A. 60-1507 motion. Nevertheless, there are
significant problems with Davis' arguments on appeal. As a result, we affirm the trial
court's summary denial of Davis' K.S.A. 60-1507 motion.

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In Davis' direct appeal, State v. Davis, No. 104,956, 2012 WL 2148167, at *1-2
(Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. 1132 (2013), this court
summarized the underlying facts of Davis' case as follows:

"On June 25, 2009, L.C., a sixteen-year-old foster girl, was taken to respite care
at the apartment of Brenda Davis in Kansas City, Kansas. At that time, L.C.'s permanent
foster parent was Pamela Brown. Brenda provided respite care for foster children,
meaning that she supervised children who couldn't be left alone while their foster parents
were working. L.C. spent the day at Brenda's apartment napping, running errands with
Brenda, and walking to a nearby park alone. After L.C. returned from the park, Brenda
told L.C. she was going to visit her cousin who lived in a different apartment in the same
building. During this visit, L.C. watched television in a bedroom in Brenda's apartment
with bunk beds and a bathroom. L.C. didn't remember seeing anyone else in the
apartment during this time.
"In the late afternoon, while L.C. was watching television, a man L.C. had never
seen before entered the room. L.C. described him as 5-foot, 4-inches tall with 'really dark'
skin, salt-and-pepper hair, sideburns, and a mustache that hooked into a beard. The man
was wearing a white tank top and beige pants. He asked L.C. what movies she liked to
watch. The man briefly left the room and then came back. He then pulled down his pants
and rubbed his penis on L.C.'s mouth. According to L.C, the man forced his penis into
her mouth until she gagged and the man then placed her left hand on his testicles and
said, '[Y]ou got a lot to learn 'cause men like their balls rubbed.' L.C. testified that she
was scared and 'fr[oze] up.' L.C. then pushed the man back. The man asked L.C., '[D]o
you eat cum?' and L.C. responded, '[N]o,' and, '[T]hat's nasty.' L.C. said the man then
went to the bathroom and ejaculated into the toilet. L.C. left the room as the man asked
her if she had a condom; she said the man also told L.C. that if she told anybody, he
would find her. L.C. ran outside to wait for Brown to pick her up.
"Brown picked up L.C. at approximately 5:30 p.m. Initially, L.C. was quiet and
somber. But later that evening, L.C. came to Brown in hysterics and begged Brown not to
take her back to Brenda's apartment. At first, L.C. refused to explain why because she
was worried that 'he'll find me.' But eventually L.C. told Brown about the events
described above. Brown immediately contacted the foster-care agency [the Kaw Valley
Center (KVC)] and the police. Police officers observed that L.C.'s story remained
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consistent throughout multiple interviews with different officers—even when officers
deliberately misstated L.C.'s allegations, L.C. would correct them.
. . . .
"Later that night, officers located John Davis—Brenda's cousin—in the
apartment's parking lot and took him into custody. His underwear, a pair of bluish-gray
boxers, matched L.C.'s description. The officers created a photo lineup that included
Davis. L.C. picked him out of the lineup without hesitation.
"At a 2-day jury trial beginning December 7, 2009, L.C., Brown, Brenda, and
various officers testified to the facts described above. Davis denied making any sexual
overtures or having any sexual relationship with L.C. He testified that he was in and out
of Brenda's apartment on the day in question, but he only briefly spoke to L.C. about
school and was never alone with L.C. or outside of Brenda's earshot. Davis speculated
that L.C., could have known the color of his underwear if she had seen him sleeping in
the apartment.
. . . .
"The jury found Davis guilty of aggravated criminal sodomy."

Following his conviction but before sentencing, Davis moved pro se for a new
trial. In this motion, Davis alleged that his trial attorney, Philip Sedgwick, provided
ineffective assistance of counsel. Based on Davis' motion, Sedgwick moved to withdraw
as Davis' counsel. The trial court allowed Sedgwick to withdraw. The trial court
appointed Joshua Allen to represent Davis on his motion for new trial and at sentencing.

The trial court held a hearing on Davis' new trial motion alleging ineffective
assistance of counsel. At the hearing, both Davis and Sedgwick testified. The trial court
denied Davis' motion, stating that Davis' arguments "fail[ed] in all respects."

The trial court sentenced Davis to 155 months' imprisonment.

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Next, Davis appealed to this court. After Davis filed his notice of appeal, the trial
court allowed Allen to withdraw as Davis' counsel. Shawn Minihan, an appellate
defender, was appointed to represent Davis in his appeal.

In Davis' direct appeal, he argued that the trial court erred when it denied his
motion for new trial because Sedgwick was ineffective. Davis asserted that Sedgwick
was ineffective for failing to subpoena certain persons as witnesses, for failing to argue
that his jail wristband should have been removed during his trial, for failing to obtain his
preliminary hearing transcript in a timely manner, and for failing to give him copies of
discovery. Davis, 2012 WL 2148167, at *4-6. This court rejected Davis' arguments and
affirmed. Davis, 2012 WL 2148167, at *7.

In January 2013, Davis moved pro se under K.S.A. 60-1507, arguing that both
Allen and Minihan provided ineffective assistance of counsel. Regarding Allen, Davis
argued that Allen was unprepared at the hearing on his motion for new trial and failed to
provide the trial court with mitigating evidence at his sentencing hearing. Davis further
argued that Allen was ineffective because he failed to request L.C.'s therapy records or
request that L.C. undergo a psychiatric evaluation. Davis asserted that Allen should have
taken these actions because at his trial, L.C. testified that she had been in therapy before
the alleged sodomy occurred. Because L.C. had been in therapy, Davis argued that L.C.
was mentally ill.

Regarding Minihan, Davis asserted that Minihan was ineffective because Minihan
should have raised the preceding arguments as to why Allen was ineffective in his direct
appeal. Davis also asserted that Minihan was ineffective because he failed to argue that
the State committed a Brady violation by failing to turn over evidence that L.C. was in
therapy. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

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The trial court denied Davis' K.S.A. 60-1507 motion, stating: "A review of the
files and records of the case shows conclusively that the movant is entitled to no relief. A
60-1507 motion may not be used as a substitute for a second appeal, and there are no
exceptional circumstances that exist. Movant's petition is denied and dismissed."

Did the Trial Court Err by Summarily Denying Davis' K.S.A. 60-1507 Motion?

"The right to effective assistance of counsel arises from the Sixth Amendment to
the United States Constitution, which guarantees in 'all criminal prosecutions' that 'the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.'"
Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012). To establish ineffective
assistance of counsel, the defendant must prove that (1) counsel's performance was
deficient, and (2) counsel's deficient performance prejudiced the defense. Edgar, 294
Kan. at 837. To establish that counsel's performance was deficient, a defendant must
prove that counsel's performance fell below an objective standard of reasonableness.
Miller v. State, 298 Kan. 921, 930-31, 318 P.3d 155 (2014). To establish that counsel's
deficient performance prejudiced the defense, a defendant must show a reasonable
probability that, but for counsel's deficient performance, the outcome of the proceeding
would have been different. Miller, 298 Kan. at 930-31, 934.

Summary denial of a K.S.A. 60-1507 motion is proper when the motion, files, and
the records of a case conclusively show that the movant is not entitled to relief. Edgar,
294 Kan. at 836 (citing Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 [2009];
Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 [2007]). When the trial court summarily
denies a K.S.A. 60-1507 motion without appointing counsel or conducting an evidentiary
hearing, an appellate court reviews the trial court's decision de novo. Edgar, 294 Kan. at
836.

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On appeal, Davis argues that the trial court erred when it summarily denied his
K.S.A. 60-1507 motion because his trial counsel, Sedgwick, and his sentencing counsel,
Allen, both provided ineffective assistance of counsel. First, Davis asserts that both
Sedgwick and Allen were ineffective because they failed to file "any motions to obtain
discovery of the alleged victim's counseling records or to seek an independent evaluation
to assure they had all necessary information to impeach the victim's credibility at trial and
to present arguments for a new trial," respectively. Second, Davis asserts that both
Sedgwick and Allen were ineffective for failing to argue that the State violated K.S.A.
22-3433(a)(8) when the State provided Davis with a copy of L.C.'s filmed sexual abuse
evaluation interview without also providing a transcript of the interview. Third, Davis
asserts that Allen was ineffective for failing to argue that the State hid evidence that L.C.
had been in therapy before the alleged sodomy occurred in violation of Brady.

Additionally, in his appeal, Davis argues that his appellate attorney, Minihan,
provided ineffective assistance of counsel. Davis argues that Minihan was ineffective as
appellate counsel because although Minihan argued that Sedgwick provided ineffective
assistance of counsel, he failed to raise the specific claims of ineffective assistance of
counsel that Davis now makes in this appeal.

Based on the preceding violations, Davis asks this court to remand his case to the
trial court for a full evidentiary hearing. Nevertheless, as detailed below, there are several
reasons why Davis' arguments fall short on appeal.

Is Davis Barred as a Matter of Res Judicata From Relitigating Arguments That Should
Have Been Raised in His Direct Appeal?

First, the doctrine of res judicata bars Davis from arguing in this appeal that
Sedgwick provided ineffective assistance of counsel.

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"The doctrine of res judicata provides that 'where an appeal is taken from the
sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata
as to all issues actually raised, and those issues that could have been presented, but were
not presented, are deemed waived.'" State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083
(2014) (quoting State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 [1990]). "[R]es
judicata consists of four elements: '"[1] same claim; [2] same parties; [3] claims were or
could have been raised; and [4] a final judgment on the merits."'"Kingsley, 299 Kan. at
901 (quoting State v. Martin, 294 Kan. 638, 641, 279 P.3d 704 [2012]). The essence of
the doctrine of res judicata is that issues "'once finally determined . . . cannot afterwards
be litigated.'" Kingsley, 299 Kan. at 901 (quoting Jayhawk Equipment Co. v. Mentzer,
191 Kan. 57, 61, 379 P.2d 342 [1963]).

On appeal, Davis argues that Sedgwick was ineffective because he failed to move
to obtain discovery of L.C.'s therapy records or to request that L.C. undergo an
independent psychiatric evaluation to ensure that he had all pertinent information to
impeach L.C.'s credibility at trial. Davis additionally argues that Sedgwick was
ineffective because he failed to argue that the State violated K.S.A. 22-3433(a)(8) when
the State failed to provide him with a transcript of L.C.'s sexual abuse evaluation
interview. As previously noted, however, Davis argued in his direct appeal that Sedgwick
had provided him with ineffective assistance of counsel.

Again, before sentencing, Davis filed a pro se motion for a new trial. In this
motion, Davis argued that he was entitled to a new trial because Sedgwick had provided
him with ineffective assistance of counsel. After he filed this motion, the trial court
appointed Allen as new counsel and held a full evidentiary hearing in which Davis and
Sedgwick testified. The trial court denied Davis' motion for new trial. Then, Davis
appealed to this court. In his direct appeal, Davis alleged that Sedgwick was ineffective
for failing to subpoena certain persons as witnesses, for failing to argue that his jail wrist
band should have been removed during his trial, for failing to obtain his preliminary
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transcript in a timely manner, and for failing to give him copies of discovery. This court
ultimately affirmed the trial court because nothing supported Davis' claims that Sedgwick
was ineffective; thus, Davis was not entitled to a new trial. See Davis, 2012 WL
2148167, at *4-7.

Based on this evidence, Davis is clearly barred under the doctrine of res judicata
from raising arguments that Sedgwick had provided him with ineffective assistance of
trial counsel. In this appeal, Davis is raising the same claim that he raised in his direct
appeal—i.e., that Sedgwick had provided him with ineffective assistance of counsel. The
parties in both appeals are the same. The arguments Davis makes regarding why
Sedgwick had provided him with ineffective assistance of counsel in this appeal could
have been raised in his direct appeal. Moreover, Davis' direct appeal was a final judgment
on the merits. As a result, Davis has already litigated whether Sedgwick had provided
him with ineffective assistance of counsel and is barred as a matter of res judicata from
raising these arguments in this appeal.

Can Davis Raise Certain Arguments for the First Time on Appeal?

Issues not raised before the trial court cannot be raised for the first time on appeal.
See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Moreover, constitutional
grounds for reversal are not properly before an appellate court for the first time on appeal.
State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). There are, however, exceptions to
this general rule. Those exceptions include when (1) the newly asserted theory involves
only a question of law arising on proved or admitted facts and is finally determinative of
the case; (2) consideration of the theory is necessary to serve the ends of justice or to
prevent denial of fundamental rights; and (3) the judgment of the trial court may be
upheld on appeal despite its reliance on the wrong ground or having assigned a wrong
reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Nevertheless, under Kansas Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot.
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41), an appellant must explain why new issues should be considered for the first time on
appeal given that those issues were not raised below. An appellant who fails to include
this explanation risks a ruling that the issue is not properly before this court, resulting in
the issue being deemed waived and abandoned. State v. Williams, 298 Kan. 1075, 1085,
319 P.3d 528 (2014).

In this case, Davis raises all but two of his arguments for the first time on appeal.
In Davis' K.S.A. 60-1507 motion, Davis never alleged that Sedgwick provided ineffective
assistance of counsel. Instead, Davis only alleged that Allen and Minihan provided
ineffective assistance of counsel. Thus, in addition to being barred as a matter of res
judicata, Davis is raising the argument that Sedgwick was ineffective for the first time on
appeal. Moreover, in his K.S.A. 60-1507 motion, Davis never argued that (1) Allen failed
to assert that the State violated K.S.A. 22-3433(a)(8) by not providing him with a
transcript of L.C.'s sexual abuse evaluation interview; or (2) Allen was ineffective for
failing to raise the alleged Brady violation before the trial court.

Although Davis raises these arguments for the first time on appeal, Davis never
explains why this court should consider these arguments for the first time on appeal.
Thus, Davis has failed to comply with Kansas Supreme Court Rule 6.02(a)(5). Because
Davis has failed to explain why this court should consider his arguments in violation of
Kansas Supreme Court Rule 6.02(a)(5), we decline to address these arguments for the
first time on appeal.

As a result, Davis has properly preserved only two arguments on appeal. First,
Davis has preserved his argument that Allen was ineffective while arguing for a new trial
because he failed to request L.C.'s therapy records or request that L.C. undergo an
independent psychiatric evaluation. Second, Davis has preserved his argument that
Minihan was ineffective as his appellate counsel.

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Did Davis' Properly Preserved Arguments Fail?

Davis' remaining two arguments fail because Davis cannot establish that either
Allen's performance or Minihan's performance was deficient under the first prong of the
ineffective assistance of counsel test.

First, the record on appeal does not support Davis' contention that Allen was
ineffective for failing to request L.C.'s therapy records or request that L.C. undergo an
independent psychiatric evaluation. Essentially, Davis argues that Allen should have
taken these actions because he believes that L.C. is (1) mentally ill and (2) "mentally
slow." Davis further contends that taking such actions would have proven that L.C. is
mentally ill and mentally slow, which would have hurt L.C.'s credibility as a witness and
resulted in the trial court granting him a new trial. Nevertheless, nothing outside Davis'
own assertions supports that L.C. was mentally ill or mentally slow. Accordingly, Davis
has failed to demonstrate that Allen was ineffective because the record on appeal does not
support that there was a valid basis for requesting L.C.'s therapy records or for requesting
that L.C. undergo an independent psychiatric evaluation.

Regarding Davis' contention that L.C. is mentally ill, Davis' entire argument is
based upon a statement that L.C. made at trial. At trial, when the State asked L.C. if she
had spoken to anyone other than the police about the sodomy, L.C. responded: "Well, I
was already—I was already in therapy then. I mean, not—well, I was—I already had a
therapist in Olathe that I came to see at the KVC building there. So I told her." Thus,
from this statement, Davis has concluded L.C. is mentally ill because she is in therapy.

Davis' conclusion, however, is a logical non sequitur. Davis' argument can be
broken down as follows: (1) All mentally ill people are in therapy; (2) L.C. is in therapy;
(3) therefore, L.C. is mentally ill. Regardless of the validity of the premise that all
mentally ill people are in therapy, Davis has concluded that all people in therapy are
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mentally ill without any foundation for this conclusion. Furthermore, even if L.C. was
mentally ill, it does not follow that her mental illness affected her veracity.

Regarding Davis' contention that L.C. is "mentally slow," Davis' entire argument
is based on a statement that L.C.'s foster mother, Brown, allegedly made to the police. At
Davis' hearing on his motion for a new trial, both he and Sedgwick testified that Brown
had told the police that L.C. was "mentally challenged." The police report containing
Brown's alleged statement is not included on the record on appeal. Nothing outside Davis'
testimony and Sedgwick's testimony supports that L.C. suffered from some sort of mental
handicap. In a criminal case, the party claiming error has the burden of designating a
record that affirmatively shows prejudicial error. Without such a record, an appellate
court will not find error. See State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013).
Moreover, the evidence included in the record on appeal supports that L.C. did not suffer
from a mental handicap that hindered her ability to understand or truthfully testify.
During Davis' preliminary hearing and trial, L.C. had no difficulties understanding the
State's or Davis' questions and L.C.'s testimony about being sodomized by Davis was
clear and consistent.

Under State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979), a trial judge has the
discretion to order psychiatric examination of a witness in a sex crime case if the
defendant presents compelling reasons for such an examination. In determining if such
compelling reasons exist, the trial judge should consider: "(1) whether the victim
demonstrates mental instability, (2) whether the victim demonstrates a lack of veracity,
(3) whether similar charges by the victim against others are proven to be false, (4)
whether the defendant's motion for a psychological evaluation of the victim appeared to
be a fishing expedition, (5) whether anything unusual results following the questioning of
the victims understanding of telling the truth, and (6) whether there are any other reasons
why the victim should be evaluated." State v. Price, 275 Kan. 78, 84, 61 P.3d 676 (2003).
In this case, nothing in the record on appeal supports that L.C. was mentally unstable,
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lacked veracity, had made similar charges in the past, or had made inconsistent
statements. If Allen had requested L.C.'s therapy records or requested that L.C. undergo
an independent psychiatric evaluation, his requests would have been nothing more than a
fishing expedition.

Consequently, Davis has clearly failed to provide this court with compelling
reasons as to why he would have been entitled to L.C.'s therapy records or an
independent psychiatric evaluation of L.C. As a result, Davis cannot prove that Allen was
ineffective for failing to request L.C.'s therapy records or request that L.C. undergo an
independent psychiatric evaluation. Moreover, even if Allen erred by not making these
requests, Davis cannot establish that but for Allen's error, the trial court would have
granted him a new trial. As the State points out in its brief, under the unlikely assumption
the trial court would have even granted these requests, "pursuing information about the
victim's disclosure to her therapist may have only strengthened her credibility and
provided one more witness to support her story."

Second, Davis' contention that Minihan provided ineffective assistance of
appellate counsel is conclusory. In his brief, Davis makes the following statements as to
why Minihan was ineffective:

"Although ineffective assistance of counsel was raised by the Appellate defender
on his direct appeal, said attorney failed to raise any of the specific claims and issues
raised by the Appellant in his petition for 60-1507 relief. The issues raised here are
significant violations of the Appellant's right to effective assistance of counsel and due
process."

By making this statement, it seems that Davis is attempting to incorporate the arguments
he made in his K.S.A. 60-1507 motion by reference. Yet, Davis has not provided this
court with any evidentiary basis for his assertion that Minihan's representation was so
deficient as to violate his right to effective assistance of counsel.
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In a similar case, Gertschitz v. State, No. 105, 582,2012 WL 686824, at *3 (Kan.
App. 2012) (unpublished opinion), this court held that Gertschitz' argument that he was
entitled to an evidentiary hearing on his K.S.A. 60-1507 motion was conclusory because
Gertschitz did not include the merits of his argument in his brief. Instead, Gertschitz
attempted to incorporate the arguments in his K.S.A. 60-1507 motion by reference. As in
Gertschitz, Davis cannot establish that he was entitled to an evidentiary hearing based on
his allegation that Minihan provided ineffective assistance of appellate counsel because
his argument on appeal is conclusory. Therefore, the trial court did not err by summarily
denying Davis' K.S.A. 60-1507 motion.

Did Davis' Improperly Preserved Arguments Fail on the Merits?

As a final note, it is worth mentioning that even if Davis had properly preserved
his arguments that Allen was ineffective for failing to argue that the State violated K.S.A.
22-3433(a)(8) or that the State committed a Brady violation, his arguments would still
fail on the merits. Again, Davis asserts that Allen was ineffective for failing to argue
before the trial court that the State violated K.S.A. 22-3433(a)(8) when it provided him
with a video copy of L.C.'s sexual abuse evaluation interview without also providing a
transcript of this interview. K.S.A. 22-3433(a)(8) states:

"In any criminal proceeding in which a child less than 13 years of age is alleged to be a
victim of a crime, a recording of an oral statement of the child, made before the
proceeding began is admissible in evidence if: . . . a copy of a written transcript is
provided to the parties." (Emphasis added.)

In this case, Davis sodomized L.C. when she was 16 years old. Thus, Allen was not
ineffective for failing to raise this issue because K.S.A. 22-3433(a)(8) was inapplicable.

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Regarding the alleged Brady violation, nothing in the record on appeal indicates
that the State was concealing the fact that L.C. had been in therapy before she was
sodomized by Davis. It seems that L.C. revealed this information for the first time at trial.
Consequently, Davis' argument must fail because Allen could not be ineffective for
failing to raise a Brady violation that did not exist. Moreover, even if there was a Brady
violation, Davis cannot establish that he was prejudiced by Allen's failure to raise this
violation. In his brief, Davis never explains how evidence that L.C. had been in therapy
was exculpatory or material to his case. When the State's withholding of evidence was
not willful, a defendant should be granted a new trial only if the evidence withheld was
(1) suppressed by the prosecution, (2) clearly exculpatory, and (3) so material that its
omission was clearly prejudicial. See Wilkins v. State, 286 Kan. 971, 989, 190 P.3d 957
(2008). Since Davis has failed to explain how the therapy evidence was exculpatory or
material, even if there was a Brady violation, Davis cannot prove that he was prejudiced
by Allen's error because he has failed to establish that he was entitled to a new trial.

Conclusion

The trial court did not err when it summarily denied Davis' K.S.A. 60-1507
motion. On appeal, Davis makes several arguments why his trial counsel, sentencing
counsel, and appellate counsel were ineffective. Upon examination, however, it is clear
that Davis' arguments must fail because his arguments are barred under the doctrine of
res judicata, not properly preserved, or not supported by the record on appeal.
Accordingly, we affirm.

Affirmed.