Jones v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,176

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSEPH C. JONES,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed April 21,
2017. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.

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

Per Curiam: Joseph C. Jones appeals the denial of his K.S.A. 60-1507 motion by
the district court. In 2006, Jones was convicted for aggravated criminal sodomy with a
child, furnishing alcohol to a minor for an illicit purpose, and endangering a child. The
Kansas Supreme Court ultimately affirmed his convictions on direct appeal. He
subsequently filed a K.S.A. 60-1507 motion seeking a new trial based on an allegation of
ineffective assistance of counsel. Specifically, he contends that his trial attorney failed to
investigate a potential alibi witness. Because we find that substantial evidence and the
law supported the district court's decision, we affirm.
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FACTS

In State v. Jones, 295 Kan. 1050, 288 P.3d 140 (2012), the Kansas Supreme Court
stated the facts in Jones' underlying criminal case as follows:

"Jones was employed as a live-in farmhand at a stable where H.F. and other
children volunteered to work in exchange for free horseback rides. On October 16, 2005,
Jones called H.F., asking if she could come to work. When she arrived at the stable, the
owner and a few other volunteers were there looking at horses. However, after H.F. had
completed a few chores, she discovered that she had been left alone with Jones.

"When H.F. entered the tack room where Jones resided to get a drink, Jones
offered her two glasses of soda that contained alcohol. H.F. said she drank both glasses
despite the fact that '[i]t made [her] whole chest burn.' Jones also gave her a 'joint' and
repeatedly pressured her to smoke it with him. Despite her initial protests, H.F.
eventually agreed to smoke it 'once or twice.'

"When H.F. began feeling dizzy, she attempted to call her grandmother to come
for her, but Jones pushed her to the ground, pinned her wrists, knelt on top of her, and put
his penis in her mouth. Although she was unsure why, Jones obeyed her command to get
off of her. Once free, H.F. threatened Jones with a fork she retrieved from a nearby table
and then called her grandmother to come pick her up, before running out into the street.

"When the grandmother arrived, she found H.F. staggering down the middle of
the road with Jones trailing behind her. In the car, the grandmother noticed that H.F. was
acting upset, hysterical, and drugged. Upon arriving at grandmother's house, H.F.
vomited several times and then told her grandmother that Jones had touched her.

"After learning what had happened, H.F.'s mother took her to the hospital where
nurse Gannon, a sexual assault nurse examiner (SANE), conducted an examination.
Nurse Gannon collected two sets of physical samples: (1) oral swabs and blood samples
for the Kansas Sexual Assault Evidence Collection Kit provided by the Kansas Bureau of
Investigation (KBI), and (2) blood and urine samples pursuant to the doctor's orders to
test H.F.'s 'basic chemistries to see if she was generally healthy.' The first set of physical
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samples was given to the local police as part of the assault kit, which was logged into
evidence and sent to the KBI forensic laboratory. Those samples were not analyzed for
drugs or alcohol. The second set was given to the hospital laboratory for analysis, the
results of which included a positive indication of alcohol and marijuana in H.F.'s system.

"Jones was charged with three counts: aggravated criminal sodomy, furnishing
alcohol to a minor for an illicit purpose, and endangering a child. At trial, Jones made a
hearsay objection to nurse Gannon's testimony that the hospital laboratory results
indicated that H.F.'s blood and urine contained alcohol and marijuana. Initially, the
district court sustained the objection based on the State's failure to lay a proper
foundation for the medical records. After the State presented further foundational
testimony, the court overruled Jones' objection when the testimony was offered a second
time. Pointedly, the written laboratory report was never admitted into evidence; rather,
the State only offered Gannon's testimony as to what was stated in the laboratory report.

"The jury convicted Jones on all three counts, the court sentenced him to a term
of [222 months] in prison, and Jones appealed both his convictions and sentences to the
Court of Appeals. In that court, he argued that several errors warranted reversal of his
convictions: (1) the admission of Gannon's testimony regarding the hospital laboratory
results violated his right to confrontation under the Sixth and Fourteenth Amendments to
the United States Constitution, as well as under § 10 of the Kansas Constitution Bill of
Rights; (2) he was convicted of child endangerment based on alternative means without
jury unanimity; (3) the district court erred in failing to instruct the jury on the lesser
included offense of criminal sodomy; and (4) his sentence was enhanced in violation of
the Sixth and Fourteenth Amendments based on prior convictions that were not proved to
the jury beyond a reasonable doubt.

"The Court of Appeals affirmed Jones' convictions and sentences. With respect to
the Confrontation Clause issue, the panel noted that the alcohol and marijuana test results
were not part of the KBI forensic investigation; rather, they were obtained from the
hospital's testing in connection with H.F.'s treatment. The panel observed that there was
nothing in the record to suggest that the laboratory technician performing the tests would
have known the samples came from a minor or a crime victim, and that if the technician
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would not have anticipated their use in a criminal prosecution, the results would not be
testimonial in nature. We granted review." Jones, 295 Kan. at 1051-53.

The Kansas Supreme Court upheld Jones' convictions on November 9, 2012.
Jones, 295 Kan. at 1057-60.

On August 26, 2013, Jones filed a K.S.A. 60-1507 motion seeking a new trial. In
his motion, Jones alleged that his trial attorney provided ineffective assistance of counsel
by failing to investigate and call Melvin Anderson as a potential alibi witness. According
to Jones, Anderson would have been able to testify that he was working at a different
ranch on the day of the incident involving H.F. Jones also alleged that Anderson came to
the courthouse during his trial, but his trial counsel did not call him as a witness. Finally,
Jones attached an affidavit purportedly signed by Anderson in support of his motion.

On June 6, 2014, the same district judge who had presided over Jones' jury trial
conducted an evidentiary hearing on the K.S.A. 60-1507 motion. At the hearing, both
Jones and his trial attorney testified. Anderson was not present and thus did not testify. At
the conclusion of the hearing, the district court denied Jones' motion on the record.

Specifically, the district court found:

"Based upon the credible evidence and testimony presented to this Court, not only
through live testimony, but through the pleadings from all of the parties involved, I do
not find that Mr. Anderson . . . was what we refer to as an alibi witness. I'm pretty sure
that there was no alibi notice given prior to the trial. No alibi defense was used by the
defendant during the course of his trial. During the motion for new trial, no issue
involving alibi witness or lack thereof was presented . . . nor was the same broached
during the defendant's direct appeal from his conviction regarding any sort of . . . alibi
witness."

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The district court went on to find:

"[T]he credible evidence supports the State's response and the Court's rulings in this
matter throughout. Based upon the evidence presented at trial, the window of time
testified to, I suspect that even if Mr. Anderson had been available to testify, [there
would] still be no credible testimony regarding the defendant's presence or lack thereof
during the alleged commission of the crime . . . . So I suspect the outcome would not
have been any different had Mr. Anderson been here and testified as the defendant has
described . . . ."

The district court subsequently filed a written order denying the K.S.A. 60-1507
motion, and Jones timely filed this appeal.

ANALYSIS

The sole issue presented on appeal is whether the district court erred in denying
Jones' K.S.A. 60-1507 motion. Jones argues that his trial attorney was ineffective for
failing to investigate a potential alibi witness. In response, the State argues that
substantial competent evidence was presented at an evidentiary hearing to support the
district court's denial of the motion.

"Ineffective assistance of counsel claims—whether based on deficient
performance or conflict of interest—involve mixed questions of fact and law." State v.
Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013). When an ineffective assistance of
counsel claim is brought under K.S.A. 60-1507 and the district court conducts an
evidentiary hearing, we must determine whether the district court's factual findings are
supported by substantial competent evidence and whether the findings are sufficient to
support the district court's conclusions of law. State v. Adams, 297 Kan. 665, 669, 304
P.3d 311 (2013). We are not to reweigh the evidence, assess witness credibility, or
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resolve conflicting evidence. State v. Betancourt, 301 Kan. 282, 290, 342 P.3d 916
(2015) (citing State v. Gibson, 299 Kan. 207, 215-16, 322 P.3d 389 [2014]).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence. We must
presume that counsel's conduct fell within the broad range of reasonable professional
assistance. See State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). To prevail on a
claim of ineffective assistance of counsel, a criminal defendant must establish that (1) the
performance of defense counsel was deficient under the totality of the circumstances, and
(2) the defendant was prejudiced by counsel's error. Sola-Morales v. State, 300 Kan. 875,
882, 335 P.3d 1162 (2014). To establish prejudice, the defendant must show that there is
a reasonable probability that, but for counsel's deficient performance, the outcome of the
proceeding would have been different. "A 'reasonable probability' is a probability
sufficient to undermine confidence in the outcome" of the proceeding. Miller v. State,
298 Kan. 921, 934, 318 P.3d 155 (2014).

If counsel made a strategic decision after making a thorough investigation of the
law and facts relevant to the realistically available options, then it is not appropriate for a
reviewing court to second-guess such a decision. Furthermore, counsel may make a
reasonable decision that makes particular investigations unnecessary. "'In any ineffective
assistance of counsel case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel's judgments.'" Cheatham, 296 Kan. at 437 (quoting Strickland v.
Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]). Decisions
on which witnesses to call, what trial motions to make, and all other strategic and tactical
decision are the exclusive province of counsel after consultation with the client. See
Bledsoe v. State, 283 Kan. 81, 92, 150 P.3d 868 (2007).


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A review of the record on appeal in the present case reveals that substantial
competent evidence supports the district court's conclusion that Jones' trial counsel was
not ineffective. At the motion hearing, Jones' trial counsel testified that his client told him
about "a gentleman who might know something about it." In addition, according to trial
counsel at the hearing, Jones advised trial counsel that the witness would testify that
Jones was "too busy [on the day of the crime] to have done any of these things." Trial
counsel further testified that he did not utilize an alibi defense because Jones had
"indicated that he talked to this young girl at the time and that he tried to kind of counsel
with her. So it wasn't totally that he didn't have any contact with her."

Trial counsel told the district court that Jones never told him that Anderson could
account for all of his time on the day of the crime. Rather, it was the attorney's
understanding, based on what he was told by Jones, that the nature of Anderson's
testimony would have simply been that Jones had a long assignment that day. Moreover,
trial counsel testified that Jones did not provide him with sufficient information to locate
Anderson and that he did not contact him prior to trial.

Additionally, Jones' trial counsel identified a number of steps he took in preparing
Jones' case for trial, including preparing for and attending numerous pretrial hearings,
filing of several pretrial and posttrial motions, requesting a transcript of an interview with
H.F., and engaging expert services with regards to that interview. According to trial
counsel, Jones never complained about his services throughout the case.

Jones also testified at the evidentiary hearing. He testified that he provided his
attorney with multiple names, phone numbers, and addresses of people who could testify
on his behalf. According to Jones, he gave trial counsel contact information for Anderson
at least 2 weeks before the trial. At the time of the evidentiary hearing on the K.S.A. 60-
1507 motion, however, Jones was unable to produce Anderson's contact information.
Jones further testified that he told Anderson to expect a subpoena for the trial, but his
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attorney never sent one to him. Likewise, Jones testified that Anderson had remained at
the same address prior to the trial.

Jones then testified that Anderson had asked him to construct new manure traps
and to clean the stables on Anderson's ranch. According to Jones, this task was supposed
to take the whole day. Jones further testified about the distance between Anderson's ranch
and the ranch where he normally worked. Jones' testimony was inconsistent on whether
Anderson was actually at the courthouse during the trial. In addition, Jones testified that
Anderson was sick at the time of the trial and he may not have been able to testify. Jones
agreed on cross-examination that Anderson was not with him throughout the entire day of
the crime.

Jones also attached to his K.S.A. 60-1507 motion an affidavit purportedly signed
by Anderson. The affidavit does not say that Anderson and Jones were together for the
entire day. Rather, it says Jones completed a project that took a few hours at his ranch.
Interestingly, Anderson dated the affidavit May 28, 2009, which would have been while
Jones' direct appeal was still pending. However, it does not appear that Jones ever
mentioned the affidavit in the direct appeal. Moreover, Jones did not call Anderson to
testify as a witness at the evidentiary hearing. Accordingly, it is impossible to know what
his testimony might have been outside of what is stated in his affidavit.

After hearing the testimony and reviewing the record, the district judge—who had
also presided over the trial and posttrial motions' hearings—found that Anderson was not
an alibi witness. Accordingly, the district judge also concluded that Jones had failed to
establish that his trial counsel was ineffective. While there is conflicting evidence, we
find substantial competent evidence supported this conclusion.

There was testimony presented at the evidentiary hearing that Jones' attorney
never had sufficient information to contact Anderson. In addition, the testimony at the
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hearing—as well as the affidavit—suggest that Anderson could not have testified at trial
to Jones' exact location throughout the day of the crime. Likewise, Jones does not
indicate how testimony that he was working at a near-by ranch for part of the day would
establish that he was not present when H.F. was sexually attacked.

At trial, H.F. testified in detail about the attack. Moreover, H.F.'s grandmother
testified about H.F.'s emotional condition after leaving the stables and that she saw a man
following her granddaughter when she went to pick her up. Pete Smith, the owner of the
stables, testified that he saw Jones working at the stables on the day of the crime.
Furthermore, trial counsel testified at the evidentiary hearing that Jones had suggested to
him that he had talked to H.F. on the day of the crime and had tried to counsel her. As
such, it is reasonable that Jones' attorney would have attempted to defend the case by
pointing out inconsistencies in H.F.'s version of the events rather than presenting an alibi
defense.

We, therefore, conclude that there is substantial competent evidence to support the
district court's factual findings and legal conclusions.

Affirmed.