Holt v. State

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NOT DESIGNATED FOR PUBLICATION

No. 117,411

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DUSTIN O. HOLT,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wabaunsee District Court; GARY L. NAFZIGER, judge. Opinion filed December 22,
2017. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., BUSER and ATCHESON, JJ.

PER CURIAM: Dustin O. Holt appeals from the district court's denial of his K.S.A.
60-1507 motion which alleged ineffective assistance of trial counsel. Finding no error, we
affirm.

Factual and procedural background

Holt was convicted of first-degree premeditated murder and conspiracy to commit
murder for his role in the death of Kenton Shoffner. The facts of the underlying
conviction in this case are fully documented in State v. Holt, 285 Kan. 760, 176 P.3d 239
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(2008), and we need not repeat them here. Following his direct appeal, Holt timely filed a
pro se K.S.A. 60-1507 motion alleging that his trial counsel was ineffective and that
substitute counsel should have been appointed. Holt argued his counsel was ineffective
for two primary reasons: (1) he failed to call certain witnesses to support Holt's defense
and (2) he failed to hire an independent DNA expert to refute the State's DNA evidence.
Holt also alleged that substitute counsel should have been appointed before the trial
began.

The district court held an evidentiary hearing at which both Holt and his trial
counsel testified. After the evidentiary hearing, the district court denied relief under
K.S.A. 60-1507, stating in part:

"Petitioner has failed to show that there is a reasonable probability that the result
of the proceeding would have been different had any other strategy or tactic been
employed including calling Steve Warden or Joe Lamb or by attempting to rebut the
State's DNA evidence by counsel, particularly considering the totality and volume of the
evidence which was presented at the trial which was presided over by this Court."

Holt timely appealed and is represented by counsel.

Was the district court's decision to deny Holt's claims of ineffective assistance of counsel
supported by substantial competent evidence?

Standard of review

A claim alleging ineffective assistance of counsel presents mixed questions of fact
and law. When the district court conducts a full evidentiary hearing on such claims, as it
did here, the appellate court determines whether the district court's factual findings are
supported by substantial competent evidence. We apply a de novo standard to the district
court's conclusions of law. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).
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To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must show (1) that under the totality of the circumstances the defense counsel's
performance was deficient, and (2) that the defendant was prejudiced, i.e., there is a
reasonable probability that the factfinder would have reached a different result but for the
deficient performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014)
(relying on Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674, reh. denied 467 U.S. 1267 [1984]). A reasonable probability is a probability
sufficient enough to undermine confidence in the outcome. State v. Sprague, 303 Kan.
418, 426, 362 P.3d 828 (2015).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. The reviewing court must strongly presume that counsel's conduct fell
within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965,
970, 318 P.3d 987 (2014).

If counsel has made a strategic decision after making a thorough investigation of
the law and the facts relevant to the realistically available options, then counsel's decision
is virtually unchallengeable. Strategic decisions made after a less than comprehensive
investigation are reasonable exactly to the extent a reasonable professional judgment
supports the limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292
P.3d 318 (2013) (citing Strickland, 466 U.S. at 690-91). Whether to call a particular
witness is a matter of trial strategy. Shumway v. State, 48 Kan. App. 2d 490, 508, 293
P.3d 772 (2013).

Not calling Lamb or Warden to testify about Casey's confession

Holt testified his defense team was ineffective for not calling two witnesses who
would have bolstered his defense: (1) Joe Lamb (a correctional facility employee) to
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testify that he had heard Landrey Casey (Holt's codefendant) tell Steve Warden (another
inmate) that Casey was the shooter; and (2) Warden, to testify about that same
conversation with Casey.

Holt's counsel, Chris Woolery, testified about his decision not to call these
witnesses. He was aware that Lamb had overheard Casey's conversation with Warden,
but he chose to have Sheriff Douglas Howser testify about that matter instead. After
speaking with both Howser and Lamb, as well as reading the incident report Lamb had
written and sent to Howser, Woolery believed the information was more powerful
coming from Howser than it would be from Lamb. Woolery did not call Warden as a
witness because Warden was using methamphetamine at the time of trial and would not
have been a credible witness. Woolery testified that he spoke with Holt about those
strategic decisions and told him that one of the only ways to get in Holt's side of the story
would be for him to testify, which Holt chose not to do.

We find no indication that Woolery made these strategic decisions about Casey's
confession without a thorough investigation of the law, relevant facts, and realistic
alternatives available. Woolery testified as to Lamb's and Warden's lack of credibility and
the strength of the testimony coming in through Howser. Additionally, Woolery testified
that he ensured his client that if he wanted to testify, trial counsel would prepare him to
do so. We find no deficient performance here.

No testimony about Holt's written retraction

Holt alleges Lamb could also have testified about Holt's written retraction of his
confession. Although Holt verbally confessed to having shot the victim, he later wrote
and gave his retraction to Lamb. Holt's written retraction never made it into evidence.
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Woolery asked Howser about Holt's written retraction, but Howser had no recollection of
it. Because Howser failed to recognize the retraction and neither Holt nor Lamb testified,
the written retraction was not admitted into evidence.

We pause to address a procedural issue—the State's contention that Holt
abandoned this issue by not including it in either of his amended briefs and by not
presenting evidence on it at the evidentiary hearing. See State v. Williams, 303 Kan. 750,
758, 368 P.3d 1065 (2016) (an issue not briefed by the appellant is deemed waived or
abandoned). But we find the State portrays this issue too narrowly when arguing that the
defense did not address Lamb's testimony regarding Holt's written retraction of his
confession. As Holt argues, this issue is broader than that—Lamb was not called at trial
and he was a "multipurpose witness, who had the ability to testify on more than one
subject." Holt raised the issue of failing to call Lamb as a witness numerous times: in
Holt's original petition, counsel's amended petition, Holt's pro se amended petition, and
during the evidentiary hearing. We find this issue sufficiently preserved.

Nonetheless, we find no deficient performance in not calling Lamb to testify about
Holt's retraction. The retraction was intended to counter Holt's prior confession, which
had been recorded and admitted into evidence. For the retraction, an out-of-court
statement, to serve its intended purpose, it would necessarily have been offered to prove
the truth of the matter stated in it. This is the very definition of hearsay. See K.S.A. 2016
Supp. 60-460. Absent an exception, hearsay is inadmissible. K.S.A. 2016 Supp. 60-460.
Holt was given the opportunity to testify and chose not to. By exercising his Fifth
Amendment right not to testify, Holt made himself unavailable for cross-examination and
thus rendered inapplicable the hearsay exception otherwise most likely to permit
admission of his retraction, K.S.A. 2016 Supp. 60-460(a) (hearsay exception for previous
statement of person who is present and available for cross-examination); State v. King,
221 Kan. 69, 71-72, 557 P.2d 1262 (1976) (finding defendant was not "available" for
cross-examination because she was still protected by her Fifth Amendment privilege).
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Holt has not shown that any other hearsay exception may have applied and has thus failed
to show how his attorney could possibly have admitted his retraction through Lamb.

Not using a DNA expert

Holt next claims his trial counsel was ineffective for not using a DNA expert to
testify or otherwise help rebut the State's DNA evidence. At trial, two Kansas Bureau of
Investigation employees testified for the State that a partial DNA profile collected from
the gun grip matched Holt's DNA, thus supporting the State's allegation that Holt was the
shooter. Holt argues that another DNA expert could have explained the partial profile and
its evidentiary weaknesses to the jury, which would have helped minimize the impact of
this evidence.

Instead of arguing deficient representation or prejudice, Holt merely argues that
hiring or consulting a DNA expert was a "plausible option" to help the defense. But the
record contains Holt's admission that he handled the gun other than in shooting the
victim, thus admitting that his DNA could well have been on the gun grip. Holt did not
proffer any affidavit at the evidentiary hearing or otherwise show anything other than
mere speculation as to how a DNA expert's testimony may have been so essential to his
defense that his counsel's failure to consult such an expert was necessarily deficient or
prejudicial.

Holt argues that because Woolery did not explain why he did not consult an
independent expert, his decision cannot have been strategic. But it is not the State's
burden to show that Woolery's decisions were supported by a thorough investigation and
did not amount to deficient representation—it is Holt's burden to prove the opposite.
Lack of evidence cannot establish counsel's performance was deficient. Burt v. Titlow,
571 U.S. __, 134 S. Ct. 10, 17, 187 L. Ed. 2d 348 (2013). Because Holt has shown neither
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deficient performance nor prejudice, we find no error in the district court's denial of
Holt's claim of ineffective assistance of counsel.

Did the district court abuse its discretion in determining the court made an in-depth
inquiry into Holt's request for new counsel?

We again address a procedural issue. The State contends this issue—whether the
district court erred in not appointing new counsel is not properly before this court because
it should have been raised on direct appeal. A motion for writ of habeas corpus ordinarily
may not be used as a substitute for direct appeal involving mere trial errors or as a
substitute for a second appeal unless exceptional circumstances excuse the failure to
appeal. Supreme Court Rule 183(c)(3) (2017 Kan. S. Ct. R. 222). Exceptional
circumstances may include unusual events or intervening changes in the law which
prevent a movant from reasonably being able to raise all of the trial errors in the first
postconviction proceeding. State v. Mitchell, 297 Kan. 118, 123, 298 P.3d 349 (2013).
The State may well be correct, as Holt has failed to show exceptional circumstances.

Nonetheless, we choose to address this issue on the merits. We review a district
court's decision not to appoint substitute counsel for an abuse of discretion. State v.
Sappington, 285 Kan. 158, 166, 169 P.3d 1096 (2007). A judicial action constitutes an
abuse of discretion if (1) no reasonable person would take the view adopted by the trial
court; (2) it is based on an error of law; or (3) it is based on an error of fact. Wiles v.
American Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015). The
burden is on the party alleging the abuse to show such abuse of discretion. State v. White,
284 Kan. 333, 342, 161 P.3d 208 (2007).

To receive new counsel, a movant must show justifiable dissatisfaction with his or
her appointed counsel. State v. Staten, 304 Kan. 957, 970, 377 P.3d 427 (2016).
Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable
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disagreement, or a complete breakdown in communication between counsel and the
defendant. State v. Bryant, 285 Kan. 970, 986-87, 179 P.3d 1122 (2008). When
warranted, the court must make an inquiry to determine the basis for the defendant's
dissatisfaction with counsel and the facts necessary to determine whether that
dissatisfaction is justifiable. State v. Stovall, 298 Kan. 362, 372, 312 P.3d 1271 (2013).

Holt solely claims that the district court did not conduct a sufficient inquiry to
ensure his right to effective assistance of counsel was not violated. Specifically, he argues
two reasons prevented him from pursuing his request for new counsel. First, Holt argues
that the questions regarding his financial ability to obtain counsel prevented the
completion of a sufficient inquiry and gave him the impression that he could get new
counsel only if he could not afford one. Second, Holt argues that the presence of the State
(Assistant Attorney General and Wabaunsee County Attorney) prevented a sufficient
inquiry by the district court because it impeded Holt's ability to confide in and provide his
reasoning to the court.

We find no support in the record for these contentions. First, the record shows that
the court conducted a sufficient inquiry before determining that Holt had not shown
justifiable dissatisfaction. Before his preliminary hearing, the court held an in-chambers
meeting and asked Holt about the issues with counsel. The court asked Holt for specifics
regarding his relationship with counsel, but Holt told the court that he was not asking to
have his attorneys removed.

"THE COURT: Okay. Mr. Holt, why don't you inform the Court what the issue
is.
"MR. HOLT: I just don't feel he's going to do me any good.
"THE COURT: And, how do you come to that conclusion?
"MR. HOLT: I know what I did and what I didn't do and there's just problems
with—
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"THE COURT: I need you to be specific as to your request. Are you asking the
Court that these attorneys be removed from representing you?
"MR. HOLT: (Witness nodded head.)
"THE COURT: You're—I need—we're on record here, I need to have you
answer yes or no.
"MR. HOLT: No.
"THE COURT: Okay. At this time you're not asking—
"MR. HOLT: That's right.
"THE COURT:—that they be removed. Okay. Do you have any other
comments?
"[TRIAL COUNSEL]: No, like I said, I brought this issue to the Court, because
I think, ethically, I'm bound to do that.
"THE COURT: Mr. Holt, are you in a position where you can retain counsel?
"MR. HOLT: Not, not at this time.
"THE COURT: Frankly, Mr. Holt, these individuals that I've appointed to
represent you are individuals who have represented many, many people in your similar
situation, and the Court feels they're—all three of the defendants in this case, the Court
has appointed the best counsel available in the State. And, so, upon you saying today that
you—at this time, that you're not asking that they be removed, we'll go ahead and
proceed with preliminary examination today. Okay. Is there anything else?"

Holt unequivocally told the court, before any mention of any financial inability to retain
counsel, that he was not asking for his counsel to be removed.

Secondly, the presence of the State does not mean that there was not an
opportunity for sufficient inquiry.

"Courts generally recognize that an inquiry conducted after a defendant's expression of
dissatisfaction with his or her attorney will occur on the record and in the presence of the
prosecutor but also recognize '[t]here may be unusual circumstances where, to avoid the
possibility of prejudicial disclosures to the prosecution, the court may exercise its
discretion to pursue the inquiry with defendants and their counsel on the record but in
chambers.' In this case, the record does not reflect the types of disclosures that would
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have warranted a hearing outside the presence of the prosecutor. [Citation omitted.]"
State v. Pfannenstiel, 302 Kan. 747, 765, 357 P.3d 877 (2015).

The district court properly held, after conducting a sufficient inquiry, that Holt had
not shown justifiable dissatisfaction with his appointed counsel, or shown a conflict of
interest or complete breakdown of communications between himself and his appointed
attorney. Therefore, we find no abuse of discretion.

Affirmed.