Love v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,823


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TROY LAMONT LOVE II,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed April 12, 2019.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

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

PER CURIAM: Troy Lamont Love II appeals the Saline County District Court's
summary denial of his motion for habeas corpus relief from convictions for felony
murder and child abuse. Love's motion largely rehashes issues he raised and the Kansas
Supreme Court rejected in his direct appeal from the jury verdicts finding him guilty. We
find no error and affirm the district court.

In the underlying criminal case, the State charged Love with the murder of B.C.J.,
the 18-month-old daughter of his live-in girlfriend Robin Harrington. We offer an
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abbreviated version of the trial evidence bearing on the comparatively narrow issues
Love has raised in this appeal.

The State presented medical evidence during the jury trial that B.C.J. sustained a
powerful blow or strike that severed her spine at the base of her neck, rendering her brain
dead almost instantaneously. The incident occurred in early April 2012 at the residence
Love shared with Harrington and her children. During the trial, just over two years later,
Love testified Harrington appeared to be dozing on the couch in the living room as he
went to check on the children who were supposed to be taking afternoon naps in one of
the bedrooms. B.C.J., however, was jumping on a bed. She asked for a drink of water.
Love told the jury he went to the kitchen, ate several granola bars, and then got her a
glass of water. Love said that when he returned to the bedroom three to five minutes later,
B.C.J. was lying unresponsive on the floor.

Love immediately awoke Harrington. At trial, he suggested she wasn't really
sleeping. Love then went to a neighbor's home to get help but left as an ambulance crew
and law enforcement officers arrived. Again at trial, Love explained he took off because
he had an outstanding arrest warrant for a minor offense. B.C.J. was first taken to a
hospital in Salina and then transferred to a larger hospital in Wichita where she was
officially declared brain dead the next day.

The forensic pathologist who autopsied B.C.J. and testified as a witness for the
State told the jury the fatal injury would have required substantial force directly to
B.C.J.'s neck or head that could have been applied in a violent shaking of the child. The
effect on B.C.J. would have been immediate and catastrophic. The pathologist also
testified that he found evidence of older injuries to B.C.J., including broken bones and
healing bruises, consistent with ongoing physical abuse. He said the bruising was several
days old and that B.C.J. had two ribs that were broken 7 to 10 days earlier and injuries to
her vertebrae that were at least 2 to 3 weeks old.
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Love called another pathologist as an expert witness who testified that the fatal
injury to B.C.J. resulted from the application of "great force" severing the child's spine—
what he characterized as a "grab and slam" injury. The pathologist agreed the injury
could have been caused by someone violently shaking B.C.J.

Neither expert suggested B.C.J. could have injured herself in an accidental fall
from the bed.

Harrington testified at trial that she noticed B.C.J. had bruising inside her left ear
and bloodshot eyes about a week to 10 days before the child died. A few days later,
Harrington noticed B.C.J. couldn't turn her neck and seemed to be losing hair. She took
B.C.J. to a local emergency room. The doctor diagnosed B.C.J. has having an ear
infection and swollen glands. The doctor testified at trial as to the treatment he provided
B.C.J. and told the jury he did not see what he considered signs of physical abuse.

As we indicated, the jury convicted Love of felony murder and child abuse. The
district court later imposed a mandatory sentence of life on Love on the murder
conviction and a consecutive term of 55 months in prison on the child abuse conviction.
Love filed a direct appeal, and the Kansas Supreme Court affirmed the convictions and
sentences. State v. Love, 305 Kan. 716, 387 P.3d 820 (2017).

After the Supreme Court's ruling, Love timely filed a habeas corpus motion, under
K.S.A. 60-1507, on the grounds his trial lawyer failed to adequately represent him,
thereby depriving him of the right to counsel guaranteed in the Sixth Amendment to the
United States Constitution. The district court reviewed the motion and the record in the
criminal case and summarily denied Love any relief. Love has now appealed that
decision.

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On appeal, Love raises two points: (1) His trial lawyer inadequately argued for
the admission of evidence that Harrington had filed a medical malpractice action against
the emergency room doctor shortly before his criminal trial; and (2) his trial lawyer failed
to object to testimony the State elicited from various witnesses about the
"appropriateness" of Harrington's demeanor following B.C.J.'s injury. Before analyzing
those issues, we outline the relevant legal principles governing 60-1507 motions.

To prevail on a 60-1507 motion, a convicted defendant must show both that his or
her legal representation fell below the objective standard of reasonable competence
guaranteed by the Sixth Amendment right to counsel and that absent the substandard
lawyering there probably would have been a different outcome in the criminal case.
Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014); see
Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and
stating Strickland test for ineffective assistance). A reasonable probability of a different
outcome "undermine[s] confidence" in the result and marks the criminal proceeding as
fundamentally unfair. See Strickland, 466 U.S. at 694. The movant, then, must prove both
constitutionally inadequate representation and sufficient prejudice attributable to that
representation to materially question the resulting convictions.

As the United States Supreme Court and the Kansas Supreme Court have stressed,
review of the representation should be deferential and hindsight criticism tempered lest
the evaluation of a lawyer's performance be unduly colored by lack of success
notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689-90; Holmes
v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should a lawyer's representation
be considered substandard when he or she investigates the client's circumstances and then
makes a deliberate strategic choice among arguably suitable options. Strickland, 466 U.S.
at 690-91. Whether a lawyer had made reasoned strategic decisions bears on the
competence component of the Strickland test.
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In general, the courts look at a lawyer's overall performance in representing a
criminal defendant in determining whether the Sixth Amendment right to counsel has
been satisfied, meaning that a minor mistake or even a number of minor mistakes do not
breach that duty. See Harrington v. Richter, 562 U.S. 86, 110-11, 131 S. Ct. 770, 178 L.
Ed. 2d 624 (2011); Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574, 91 L.
Ed. 2d 305 (1986); Bland v. Hardy, 672 F.3d 445, 450 (7th Cir. 2012) ("[T]he question
under Strickland is not whether the lawyer made a mistake, even a serious one; it is
whether the lawyer's overall performance was professionally competent."). But a single
error causing sufficiently substantial legal harm to the defendant to call into question an
adverse outcome at trial or on appeal will suffice.

Regardless of the inadequacy of the legal representation, a 60-1507 motion fails if
the movant cannot establish substantial prejudice. And the district court properly may
deny a motion that falters on the prejudice component of the Strickland test without
assessing the sufficiency of the representation. Strickland, 466 U.S. at 697 ("If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed."); see Edgar v. State, 294
Kan. 828, 843-44, 283 P.3d 152 (2012); Oliver v. State, No. 106,532, 2013 WL 2395273,
at *5 (Kan. App. 2013) (unpublished opinion). In other words, even assuming a criminal
defendant's legal representation fell below the Sixth Amendment standard, he or she is
not entitled to habeas corpus relief if the result would have been no different with
competent counsel.

A district court has three procedural options in considering a 60-1507 motion. The
district court may summarily deny the motion if the claims in the motion and the record
in the underlying criminal case conclusively show the movant is entitled to no relief. Or
the district court may conduct a preliminary hearing with lawyers for the State and the
movant to determine if a full evidentiary hearing is warranted. Finally, the district court
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may hold a full evidentiary hearing. See Sola-Morales, 300 Kan. at 881. Absent an
evidentiary hearing, the district court must credit the factual allegations in the 60-1507
motion unless they are categorically rebutted in the record of the criminal case. Where, as
here, the district court denies the motion without appointing a lawyer and without holding
any hearing, we exercise unlimited review on appeal. Bellamy v. State, 285 Kan. 346,
354, 172 P.3d 10 (2007). The district court has received no new evidence, and we can
review the motion and the underlying record equally well.

We now turn to Love's first point on appeal. Shortly after his criminal trial began,
the prosecutor and his lawyer learned that Harrington had recently filed a petition in the
Saline County District Court alleging medical malpractice against the emergency room
doctor who had treated B.C.J. The prosecutor asked that the district court exclude any
evidence or mention of the civil action in front of the jury. Love's lawyer countered that
the civil action could be a basis for impeaching the testimony of either the emergency
room doctor or Harrington. In debating this issue, the parties and the district court had
only a copy of the petition and lacked any other information about the medical
malpractice claim.

The district court granted the prosecutor's motion, so mention of the civil action
was off limits during Love's trial. The district court said Love's lawyer could look into
calling as witnesses any medical experts Harrington's lawyers might have consulted in
preparing the medical malpractice action. See Biglow v. Eidenberg, 308 Kan. 873,
Syl. ¶ 4, 424 P.3d 515 (2018) (plaintiff typically must present expert testimony on
standard of care and causation in medical malpractice action). Love's lawyer did not call
any consulting expert from the civil action. In his 60-1507 motion, Love has neither
identified any such experts nor provided any information about their professional
opinions.

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Love challenged the district court's ruling barring mention of the medical
malpractice case in his direct criminal appeal. The court found no basis for upsetting the
guilty verdicts based on the proffer Love's trial lawyer made in support of using the
medical malpractice action in questioning Harrington or the emergency room doctor.
Love, 305 Kan. at 725-26. Here, Love repackages what is essentially the same argument
and submits his trial lawyer should have done more to get the evidence of the malpractice
action admitted in his trial.

But 60-1507 motions are not intended to be vehicles for arguments that were or
could have been presented in a direct appeal. Manco v. State, 51 Kan. App. 2d 733, 736,
354 P.3d 551 (2015). If, however, a defendant's lawyer in a criminal trial fails to present
or preserve a sound argument and the failure amounts to constitutionally inadequate
representation, the deficient representation creates an exceptional circumstance
permitting the point to be raised in a 60-1507 motion. As we have explained, the movant
also must establish prejudice from the failure sufficient to undermine confidence in the
criminal trial's outcome to get a new trial.

The medical malpractice petition itself is remarkably vague about what Harrington
contends the emergency room doctor did wrong in treating B.C.J. But a plaintiff bringing
a civil action need only provide notice—not detailed factual representations—in a
petition. See K.S.A. 2018 Supp. 60-208(a)(1). The details typically are developed
through the discovery process. Here, the petition could be read to allege the emergency
room doctor failed to recognize an injury to B.C.J.'s neck that without treatment
deteriorated and became fatal—a theory that would be inconsistent with the mechanism
of injury the medical experts described at Love's trial. The petition also could be read to
allege the emergency room doctor was negligent in failing to recognize physical signs
that B.C.J. had been abused and in failing to take actions that would have prompted her
removal from the home, thereby averting the fatal injury the State alleged Love inflicted
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several days later. The civil petition, however, was not itself evidence of anything; it was
merely an allegation.

Here, Love never explains with any specificity just what his trial lawyer should
have done with the medical malpractice petition to challenge the testimony of Harrington
or the emergency room doctor. Nor has he developed some other evidence derivative of
the medical malpractice action, such as expert medical testimony, that would suggest
some new or alternative cause of B.C.J.'s death. We fail to see how the filing of the
malpractice action would, in and of itself, prompt either Harrington or the emergency
room doctor to shape their testimony in a way to implicate Love in a criminal homicide
of B.C.J. Likewise, we don't see that the petition could be used to suggest Harrington
believed the emergency room doctor (rather than Love) proximately caused B.C.J.'s
death. Love offers no such explanation. Harrington, as a lay person, shouldn't be expected
to explain the theory of liability underlying the civil action.

In short, Love has failed to show some substandard representation by his trial
lawyer with respect to the medical malpractice action generally and the petition in
particular. The net effect essentially leaves Love arguing what is functionally the same
issue he raised and lost in his direct appeal. The point is without merit in his 60-1507
motion.

For his other point on appeal, Love contends his trial lawyer fell below the
constitutional standard for adequate representation by failing to object to the prosecutor
asking various witnesses whether they considered Harrington's affect and overall
emotional state following the injury to B.C.J. to be appropriate or expected. The
witnesses, including medical personnel and law enforcement officers, indicated they did.
And some of them also noted that Harrington seemed cooperative or forthcoming about
what she knew. Love says those questions and the responses amounted to impermissible
vouching for Harrington's credibility. He characterizes the line of inquiry as the legal and
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practical equivalent of asking whether those witnesses believed Harrington to be truthful.
Based on that characterization, he says the questioning violated the well-settled rule that
one witness may not offer an opinion on the credibility of another witness. See State v.
Crum, 286 Kan. 145, 151-52, 184 P.3d 222 (2008); State v. Elnicki, 279 Kan. 47, Syl. ¶
2, 105 P.3d 1222 (2005). Love, therefore, contends the argument and testimony should
have been excluded as categorically inadmissible.

But Love also raised this issue in his direct appeal, challenging both the
prosecutor's opening statement describing the witnesses' anticipated testimony about
Harrington's demeanor and the actual questions to and answers from those witnesses
during the trial. Love, 305 Kan. at 726-29. The court held that the opening statement
outlined "no improper witness commentary" about the appropriateness of Harrington's
emotional state or her credibility. The court declined to consider the actual testimony
because Love's trial lawyer made no contemporaneous objections to the prosecutor's
questions or witnesses' answers. 305 Kan. at 729.

In its opinion, the court cited as illustrative the testimony of Dr. Charles
O'Donnell, a physician in Salina who treated B.C.J. immediately after her injury and
oversaw her transfer to a Wichita hospital. He interacted with Harrington during that
time. Dr. O'Donnell testified that given the circumstances of B.C.J.'s injury, he "was kind
of looking" at Harrington's behavior and the genuineness of her emotional reaction. He
told the jury Harrington "[s]eemed appropriately distraught" and did not appear to be
"evasive" in responding to his questions about what happened. 305 Kan. at 727.

Love's defense at trial offered Harrington as an alternative suspect. He suggested it
was possible Harrington feigned dozing on the sofa and got up, went into the bedroom,
and fatally injured B.C.J. as he was in the kitchen getting a drink of water for the child.
But Love conceded during his testimony that he didn't see or hear Harrington leave the
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sofa. Harrington told the jury she fell asleep on the sofa and awakened only when Love
urgently announced something was wrong with B.C.J.

We again fail to see how Love can show impermissible prejudice here. If the
prosecutor's description of the testimony in the opening statement was proper, as the
Supreme Court found, then the testimony itself, which conformed to what had been
described, similarly would be proper. So an objection to the substance of the testimony
would have been unwarranted. A trial lawyer can't be faulted for failing to make what
would be a specious objection. Moreover, Love cannot establish impermissible prejudice
simply by complaining about the admission of otherwise admissible evidence. He does
not claim the evidence, despite its admissibility, should have been excluded as unfairly
prejudicial.

Love has not presented grounds for relief in his 60-1507 warranting further
consideration. They neither require an evidentiary hearing nor suggest the guilty verdicts
may be infirm. The district court did not err in summarily denying the motion.

Affirmed.