Quezada-Duran v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 112,012

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ARNULFO QUEZEDA-DURAN,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed November 13,
2015. Affirmed.

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

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

Before BRUNS, P.J., STANDRIDGE, J., and BURGESS, S.J.

Per Curiam: Arnulfo Quezeda-Duran appeals from the district court's denial of
his K.S.A. 60-1507 motion after an evidentiary hearing. In 2006, Quezeda-Duran was
convicted of intentional second-degree murder as well as possession of cocaine and
possession of methamphetamine. His convictions were subsequently affirmed by a panel
of this court, and the Kansas Supreme Court denied review. In this appeal, Quezeda-
Duran contends that this court should reverse the district court's denial of his K.S.A. 60-
1507 motion because his trial and appellate counsel were ineffective. But Quezeda-Duran
has failed to establish that either his trial counsel or his appellate counsel were
ineffective. Thus, we affirm.
2

FACTS

In January 2006, Quezeda-Duran was charged in Saline County with one count of
first-degree murder, which the State eventually amended to also include one count each
of possession of cocaine and possession of methamphetamine. He retained D. Lee
McMaster of Wichita as his defense counsel. After the district court bound Quezeda-
Duran over for trial at the preliminary hearing, it suggested a trial date of May 9, 2006.
Evidently, that date did not work for McMaster, and he stated that he would waive the
90-day speedy trial requirement and agree to a later trial date. The trial was then set for
June 20, 2006. Although it appears from the record that Quezeda-Duran has some
understanding of the English language, an interpreter was present at the hearing.
Nevertheless, Quezeda-Duran did not object or say anything when McMaster agreed to
the continuance.

On June 6, 2006, the parties appeared before the district court on the State's
request for a continuance to await KBI lab testing results. McMaster stated that the
defense had no objection to the continuance and that his client would again waive his
right to a speedy trial. McMaster noted, however, that Quezeda-Duran did not have an
interpreter present for the hearing. As a result, the district court then gave McMaster time
to confer with Quezeda-Duran. After conferring with his client, McMaster stated on the
record that Quezeda-Duran understood the continuance and the waiver of his right to a
speedy trial. In addition, McMaster stated that he also wanted to receive the forensic
testing results. The district court then asked Quezeda-Duran if he was willing to join in
the motion to continue and he answered, "Right." The district court then set trial for
October 10, 2006.

A 7-day jury trial began on October 10, 2006. The facts were summarized in
Quezeda-Duran's direct appeal as follows:
3

"The overriding testimony in Duran's jury trial came from two eyewitnesses who
stated that they saw Duran shoot and kill Angel Lerma in the men's bathroom of the 4-H
building in Salina during a New Year's Eve dance on December 31, 2005.

"There was a history to the relationship between Duran and Lerma. Duran and
his ex-wife, Irma Lopez, had divorced in March 2001. After the divorce, Lopez dated
Lerma several times in December 2001 which caused Lerma's wife, Berta, to become
suspicious that a sexual relationship existed which Lerma later confirmed. This resulted
in Berta divorcing Lerma in March 2002. Several years later, Duran and Berta began to
see each other in an on-again, off-again sexual relationship from September to December
2005.

"Although Lopez testified Duran did not have a problem with her relationship
with Lerma, Berta testified that when she and Duran were dating in the fall of 2005,
Duran would make comments like it was their turn to get back at Lerma and Lopez, and
Duran had not gotten over the other relationship. Berta also testified that while they were
at a rodeo, when Duran saw Lerma and a new girlfriend, Duran reached into his glove
compartment and pulled out a gun to show Lerma. Lerma quickly left.

"The testimony concerning events at the dance showed that Lerma, his brother,
Octavio, Lerma, and Octavio's girlfriend, attended the dance together. Around midnight,
Octavio and Lerma went to the men's restroom along with two of Lerma's work friends.
Duran and a man named Edgar Flores were already in the restroom. Octavio testified
Duran was along the wall with several guys around him. Octavio and Lerma used the
urinals while the two friends stayed at the sinks. Octavio testified that he finished using
the urinal and then started to exit the restroom. He turned back to witness Lerma turn
around from the urinal and then Duran shot Lerma in the head. As Duran ran from the
restroom, Octavio yelled at the security guards to stop Duran because he had just shot
Lerma.

"Flores testified that when he entered the restroom earlier, Duran was inside. As
Flores used the urinal, he heard the voices of other people come into the restroom. Flores
turned and then stopped to talk with Duran who was standing along the wall. Flores
testified that Lerma was using one of the urinals at the time. Flores testified that Duran
4

pulled a pistol out of his waistband, stepped in front of him, and approached Lerma at the
urinal. Flores said that when Lerma turned around, Duran immediately shot him in the
head.

"Before Duran could be apprehended, one of the security guards saw Duran
throw a gun to the ground as he tried to elude the guards. After Duran was caught,
security guards discovered several 9mm bullets in his pants pocket and a couple of bags
of drugs in his jacket which tested positive for cocaine and methamphetamine.

"After Duran was taken into custody, he told the police he was fighting with
someone bigger than himself at the dance and he was trying to separate fighting people.
Duran said he pulled his gun out because someone had hit him. After Duran sobered up
the next afternoon, he spoke with officers. Officer Steve Henry testified Duran could
remember who he went to the dance with, how much he drank, what he was wearing, and
many other things, but could not remember walking into the restroom at midnight, seeing
Lerma, or anything that happened during the shooting in the restroom.

"Duran testified at trial that on December 31, 2005, he had consumed
approximately 30 beers during the day and then drank 5 glasses of tequila at the New
Year's Eve dance. He also admitted to snorting cocaine several times during that day. It
was also undisputed that Duran carried a fully-loaded 9mm semi-automatic handgun in
his back waistband." State v. Quezeda-Duran, No. 98,295, 2009 WL 596517, at *1-2
(Kan. App.) (unpublished opinion), rev. denied 289 Kan. 1284 (2009).

Regarding the first-degree murder charge, McMaster requested that the district
court instruct on the lesser included offenses of second-degree murder, unintentional
second-degree murder, voluntary manslaughter, and involuntary manslaughter. He also
requested a jury instruction on self-defense and voluntary intoxication. The district court
denied all of these requests except for instructing the jury on the lesser included offense
of second-degree murder and on voluntary intoxication. After deliberation, the jury found
Quezeda-Duran guilty of the lesser included offense of intentional second-degree murder
5

as well as possession of cocaine and possession of methamphetamine. The district court
subsequently sentenced him to serve a total of 225 months of imprisonment.

A panel of this court affirmed Quezeda's convictions, and the Kansas Supreme
Court denied review on November 5, 2009. Quezeda-Duran, 2009 WL 596517. Less than
a year later, on November 3, 2010, Quezeda-Duran filed a timely K.S.A. 60-1507 motion.
In the accompanying memorandum in support, Quezeda-Duran argued that there were
several trial errors in his case and that both trial and appellate counsel were ineffective
for failing to challenge these alleged errors. Among other things, he alleged that
McMaster was ineffective for failing to protect his right to a speedy trial, failing to obtain
an expert witness, and failing to file a motion to suppress. In addition, Quezeda-Duran
alleged that his appellate counsel was ineffective for failing to raise any of these alleged
errors on appeal.

The district court appointed counsel to represent Quezeda-Duran on his K.S.A. 60-
1507 motion, and a preliminary hearing was held on April 26, 2011. The district court
held another preliminary hearing on September 9, 2011, to consider the State's arguments
in opposition to Quezeda-Duran's motion. Following the second hearing, the district court
took the matter under advisement and granted the parties "leave to file any additional
authorities for the Court's consideration by September 16, 2011." Thereafter, the district
court determined that there were issues of fact that needed to be resolved in an
evidentiary hearing.

On March 8, 2013, the district court held an evidentiary hearing on Quezeda-
Duran's K.S.A. 60-1507 motion. The parties stipulated that McMaster was unable to
testify because he had passed away. In support of his motion, Quezeda-Duran testified
that other than when appearing at hearings, he only met with McMaster three times
before trial. He testified that although McMaster discussed a couple of plea offers with
him and talked about possible defenses, he did not discuss trial strategy. He further
6

testified that McMaster did not discuss hiring an expert witnesses with him nor did he
discuss filing a motion to suppress statements given to police. Quezeda-Duran testified
that he did not recall the June 6, 2008, hearing where his speedy trial rights were
discussed. Likewise, he did not remember any discussions about his right to be brought to
trial within 90 days. Quezeda-Duran testified that he wanted the results of any tests that
were being conducted on the gun, DNA, or fingerprints before trial. In addition,
Quezeda-Duran testified that he never met with or spoke to his appellate attorney,
Matthew Edge.

Also, Quezeda-Duran called Jillian Thorn Waesche Seaton, a criminal defense
attorney, as an expert witness. She testified that she had not been involved in either the
trial or the appeal. Rather, she rendered her opinion based on a review of the transcripts
in Quezeda-Duran's case. In her opinion, Quezeda-Duran did not voluntarily and
knowingly waive his right to a speedy trial. Specifically, she testified "that it was Mr.
McMaster who not only agreed to the continuance by the State, but also waived Mr.
Quezeda-Duran's right to a speedy trial on the record without consultation with him."

Seaton also testified that filing a motion to suppress the statements Quezeda-
Duran made initially to the police shortly after the incident would have benefitted the
defense. She opined that there was no showing that Quezeda-Duran understood his
Miranda rights. Although Seaton admitted that she had never handled an appeal, she
rendered the opinion that this would have been yet another issue to be raised on appeal.
She testified that it would have been helpful if McMaster had spoken to an expert on the
effects of alcohol and drug use on Quezeda-Duran's mental abilities. In her opinion, most
people are not familiar with the effects of alcohol and cocaine on someone's mental
ability. As such, she believed that expert testimony could have affected the outcome of
the trial.

7

Testifying first for the State was Amy Hanley, the lead prosecutor in Quezeda-
Duran's case. In her opinion, jurors can understand intoxication and its effect on people
without the assistance of an expert witness. Moreover, she testified that if McMaster had
presented an expert witness on intoxication, she would have challenged the witness on
cross-examination, and she would have designated an expert to testify on behalf of the
State. She testified that McMaster raised the defense of voluntary intoxication and self-
defense throughout the trial.

Matthew Edge—who wrote the appellate brief on behalf of Quezeda-Duran in his
direct appeal—also testified for the State. Edge testified that he had worked for the
Kansas Appellate Defenders office since 2002 and wrote approximately two to five
appellate briefs each month. Moreover, he testified that the chief attorney in his office
edited his appellate briefs prior to filing. He also testified that he does not always raise
every potential issue on appeal because there are page limits on the briefs and because he
wants to focus on stronger issues. According to Edge, he and the chief attorney use their
best judgment to decide which issues to raise in a given appeal. Although he did not
recall specifically what issues he raised in Quezeda-Duran's brief, he thought he raised
the strongest issues. Edge further testified that he thought that the brief he wrote was his
best strategy at the time.

At the conclusion of the evidentiary hearing, the district court took the matter
under advisement. It also asked the parties to submit proposed findings of fact and
conclusions of law. On May 10, 2013, the district court entered its order denying
Quezeda-Duran's K.S.A. 60-1507 motion. Thereafter, Quezeda-Duran timely filed a
notice of appeal.




8

ANALYSIS

Standard of Review

After a full evidentiary hearing on a K.S.A. 60-1507 motion, the district court
must issue findings of fact and conclusions of law concerning all issues presented.
Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285). We then review the district
court's findings of fact to determine whether they are supported by substantial competent
evidence and are sufficient to support its conclusions of law. Moreover, our review of the
district court's ultimate conclusions of law is de novo. State v. Adams, 297 Kan. 665, 669,
304 P.3d 311 (2013). Substantial competent evidence is that evidence possessing both
relevance and substance. It furnishes a substantial basis of fact from which the issues
presented can be reasonably resolved. State v. Brown, 300 Kan. 542, 546, 331 P.3d 781
(2014).

Issues Presented

On appeal, Quezeda-Duran raises three issues (1) whether appellate counsel was
ineffective for failing to argue on direct appeal that his speedy trial rights were violated;
(2) whether trial counsel was ineffective for failing to file a motion to suppress statements
made to police; and (3) whether trial counsel was ineffective for failing to call an expert
at trial on the issue of intoxication.

Speedy Trial

Quezeda-Duran first contends that the district court erred in finding that his
appellate counsel was not ineffective for failing to raise the speedy trial issue on appeal.
Like the standard of review for a K.S.A. 60-1507 motion, a claim alleging ineffective
assistance of counsel presents mixed questions of fact and law. We review the district
court's factual findings for support by substantial competent evidence and review its legal
9

conclusions based on those facts de novo. State v. Bowen, 299 Kan. 339, 343, 323 P.3d
853 (2014).

To establish ineffective assistance of counsel on appeal, a defendant must show
(1) that counsel's performance, based upon the totality of the circumstances, was deficient
in that it fell below an objective standard of reasonableness and (2) that the defendant
was prejudiced to the extent that there is a reasonable probability that, but for counsel's
deficient performance, the appeal would have been successful. Miller v. State, 298 Kan.
921, 930-31, 934, 318 P.3d 155 (2014).

For the first prong, to determine whether appellate counsel's performance was
objectively reasonable, the reviewing court employs a strong presumption that counsel's
conduct was reasonable and "'must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of the time of counsel's conduct."'
[Citation omitted.]" 298 Kan. at 931. Failure to raise an issue on direct appeal is not
automatically ineffective assistance. See Laymon v. State, 280 Kan. 430, 439, 122 P.3d
326 (2005). "Conscientious counsel should only raise issues on appeal which, in the
exercise of reasonable professional judgment, have merit." Baker v. State, 243 Kan. 1, 10,
755 P.2d 493 (1988).

The district court noted that Edge testified that he made a list of possible issues for
appeal but included only the strongest issues in his brief. He also testified that in his
opinion the brief presented the best strategy for the appeal. As such, the district court
found that Edge's conduct did not fall below an objective standard of reasonableness. The
district court also determined that Edge's conduct did not prejudice Quezeda-Duran.
Furthermore, the district court did not believe that Quezeda-Duran would have been
successful on appeal if he had raised the speedy trial issue.

10

Quezeda-Duran argues that the district court should have found appellate counsel's
performance to be deficient because the district court even stated in its opinion that the
speedy trial issue should have been raised on direct appeal. But Quezeda-Duran takes the
district court's statement out of context. In saying that the speedy-trial issue should have
been raised below, the district court was analyzing why it could not consider whether
Quezeda-Duran's speedy trial rights were violated for the first time in a K.S.A. 60-1507
motion—that is because it would have constituted a trial error. See Supreme Court Rule
183(c)(3) (2014 Kan. Ct. R. Annot. 286) ("A proceeding under K.S.A. 60-1507 ordinarily
may not be used as a substitute for direct appeal involving mere trial errors or as a
substitute for a second appeal. Mere trial errors must be corrected by direct appeal, but
trial errors affecting constitutional rights may be raised even though the error could have
been raised on appeal, provided exceptional circumstances excuse the failure to appeal.").
Nevertheless, the district court found that it could consider whether trial counsel was
ineffective for waiving his speedy trial rights—an issue not raised by Quezeda-Duran in
this appeal—and whether appellate counsel was ineffective for failing to raise the issue
on direct appeal.

Quezeda-Duran argues that Edge's statement that not including the speedy trial
issue on direct appeal "'was the best strategy,'" was conclusory and unsupported by a
factual or legal basis. Nevertheless, the district court found that Edge's testimony was
credible and that it supported a finding that Edge's conduct did not fall below an objective
standard of reasonableness. Just as trial strategies cannot be challenged if there is
evidence that counsel made a strategic decision after a thorough investigation of the law
and the facts relevant to the plausible options, strategic appellate decisions also should
not be challenged if appellate counsel has made a sufficient investigation. See State v.
Cheatham, 296 Kan. 417, 437, 292 P.3d 318 (2013) (stating that if trial counsel makes a
strategic decision after a thorough investigation of the law and the facts relevant to the
plausible options, then the decision is virtually unchallengeable).

11

A defendant bears the burden of showing that trial counsel's actions were not the
product of strategy. Sola-Morales v. State, 300 Kan. 875, 887-88, 335 P.3d 1162 (2014).
Edge testified as to his process of writing a letter to a defendant, reviewing the case, and
listing issues for appeal before writing the appellate brief. The brief is then reviewed by a
supervisor. Thus, the district court essentially determined that Edge conducted a thorough
investigation.

Moreover, we must judge the reasonableness of Edge's conduct on the facts of the
particular case viewed as of the time of his conduct. See Miller, 298 Kan. at 931. At the
time Edge reviewed Quezeda-Duran's case for appeal, he had the transcripts, which
showed that McMaster requested continuances for reasons valid to his defense strategy
and that Quezeda-Duran conceded to at least one of the extensions. It was not until after
Quezeda-Duran filed his K.S.A. 60-1507 motion that he alleged that he did not
understand that right. And even then, he does not allege that if he had fully understood
those rights, he would not have agreed to the waiver.

More importantly, however, the district court determined that under the second
prong of the ineffective assistance of counsel test, Quezeda-Duran could not show that
there was a reasonable probability that appellate counsel would have been successful in
raising this issue. See Miller, 298 Kan. at 930-31. Specifically, the district court
concluded that it did "not believe petitioner would have been successful on appeal if
these issues had been raised." In challenging this finding that Quezeda-Duran was not
prejudiced by appellate counsel's failure to raise the issue, Quezeda-Duran argues:

"As to the second prong of the test, there was a serious potential constitutional and
statutory violation of speedy trial here, that was certainly not explained away by appellate
counsel's conclusionary [sic] excuse that it was 'the best strategy.' What is striking here is
that the Court's decision resulted in a fundamentally unfair result. The Petitioner, Mr.
Quezeda-Duran, would urge this Court to find that the District Court erred in finding that
appellate counsel was not ineffective."
12

It is not ineffective for appellate counsel to fail to raise an issue that has "serious
potential." Instead, there must be a reasonable probability that the issue would have been
successful on appeal. See Miller, 298 Kan. at 930-31. "A 'reasonable probability' is a
probability sufficient to undermine confidence in the outcome. [Citations omitted.]" 298
Kan. at 934. Quezeda-Duran has not argued that his appeal would have been successful if
Edge had argued that his speedy trial rights were violated.

In finding that Quezeda-Duran's speedy trial rights were not violated, the district
court stated that Quezeda-Duran's testimony at the K.S.A. 60-1507 hearing that he did
not remember the June 6, 2006, hearing was not credible given that he referenced the
hearing in his K.S.A. 60-1507 motion. The district court also found not credible his
testimony that no one discussed a delay in the trial with him. Quezeda-Duran takes
exception to the district court's finding that his testimony was not credible. He maintains
that he did not understand the implication of the waiver or the concept of speedy trial.
Nevertheless, we cannot reweigh evidence or assess witnesses' credibility. State v.
Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).

The district court found that Quezeda-Duran's trial counsel had clear reasons for
requesting additional time and agreeing to a waiver of Quezeda-Duran's speedy trial
rights. Furthermore, the record was clear that Quezeda-Duran was present with an
interpreter at the February 9, 2006, hearing at which Quezeda-Duran's trial counsel stated
that Quezeda-Duran was waiving his statutory speedy trial rights, and Quezeda-Duran did
not object or state any disagreement with that waiver. He was also present again on June
6, 2006, when trial counsel spoke with him for 10 minutes before requesting a
continuance and waiver of statutory speedy trial rights. And although Quezeda-Duran did
not have an interpreter present at that time, the record reveals that he spoke some English
and his trial counsel spoke some Spanish.

13

Other than his own testimony, which the district court found not to be credible,
Quezeda-Duran does not challenge any of these findings. Moreover, we find the evidence
in the record to be sufficient to support the district court's finding that there was not a
reasonable probability that the speedy trial issue would have been successful on appeal.
We, therefore, conclude that the district court did not err in denying Quezeda-Duran's
motion on the basis of ineffective assistance of appellate counsel.

Failure to File Motion to Suppress

Quezeda-Duran next argues that the district court erred in ruling that trial counsel
was not ineffective for failing to file a motion to suppress. As stated previously, this issue
presents mixed questions of fact and law, so we review the underlying factual findings
for support by substantial competent evidence and the legal conclusions made from those
facts de novo. Bowen, 299 Kan. at 343.

The test for ineffective assistance of trial counsel is only slightly different than the
test for ineffective assistance of appellate counsel. To establish ineffective assistance of
trial counsel, the defendant must establish (1) that counsel's performance was
constitutionally deficient, which requires a showing that counsel made errors so serious
that his or her performance was less than that guaranteed by the Sixth Amendment to the
United States Constitution, and (2) that counsel's deficient performance prejudiced the
defense, which requires a showing that counsel's errors were so severe as to deprive the
defendant of a fair trial. Miller, 298 Kan. at 929.

Judicial scrutiny of counsel's performance is highly deferential and requires
consideration of all the evidence before the 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). To establish
prejudice, the defendant must show a reasonable probability that, but for counsel's
14

deficient performance, the outcome of the proceeding would have been different. A
reasonable probability means a probability sufficient to undermine confidence in the
outcome. Miller, 298 Kan. at 934.

In finding that McMaster's failure to file a motion to suppress was not ineffective
assistance of counsel, the district court noted that 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). The district court then determined that McMaster's decision not
to file a suppression motion was consistent with his trial strategy because trial counsel
was able to elicit testimony from the officer who interviewed Quezeda-Duran about how
he vomited all over the back of the patrol car while being transported to the police
station, appeared very intoxicated, smelled of tequila and beer, staggered and had to be
supported by officers while walking, and dozed off several times during the interview.
The officer also testified that Quezeda-Duran had consumed a 30-pack of beer and 4
glasses of tequila and that he also ingested cocaine approximately 4 times that night. He
testified that it was difficult to get a meaningful interview with Quezeda-Duran.

Here, Quezeda-Duran argues that the district court failed to state how not filing a
motion to suppress the statements was consistent with McMaster's defense strategy
because Quezeda-Duran contends that filing a motion to suppress could not have hurt his
defense in any way. At the very least, the motion would have been denied, but McMaster
would have been able to hear the witnesses' testimony and use it later to impeach the
witnesses if the testimony changed at trial. Quezeda-Duran maintains that suppression of
inculpatory statements would be a benefit no matter what the defense. He contends that
the district court's statement that a motion to suppress would have been inconsistent with
trial strategy was conclusory and not supported by substantial competent evidence. He
argues that under any objective standard, this was ineffective performance by his counsel.
15

He also argues that it met the second prong of the ineffective assistance of counsel test
because there were many advantages to filing a suppression motion.

Nevertheless, we must start with the presumption that McMaster's decision not to
file a motion to suppress was proper. See Kelly, 298 Kan. at 970. Moreover, if counsel
makes a strategic decision after a thorough investigation of the law and the facts relevant
to the plausible options, then the decision is virtually unchallengeable. Strategic decisions
made after a less-than-comprehensive investigation are reasonable only to the extent that
the limited investigation is supported by reasonable professional judgment. Cheatham,
296 Kan. at 437 (citing Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052,
80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]). If counsel lacks the information to
make an appropriate decision due to lack of investigation, it is inappropriate to claim it
was trial strategy. Sola-Morales, 300 Kan. at 887-88. The defendant bears the burden of
showing that trial counsel's actions were not the product of strategy. 300 Kan. at 888.

Unfortunately, we do not have the benefit of reviewing testimony from McMaster
regarding his investigation or his rationale for not filing a motion to suppress. However,
Quezeda-Duran has the burden to show that McMaster's decision was not strategic. See
300 Kan. at 887. The fact that McMaster may have received some benefit by cross-
examining the witnesses at the suppression hearing does not amount to ineffective
assistance of counsel.

Quezeda-Duran fails to clarify what evidence McMaster should have moved to
suppress or what grounds he could have advanced to argue that the evidence was
suppressible. More importantly, he fails to show any prejudice as he does not explain
how the outcome of the trial would have been different if McMaster had filed a motion to
suppress. Specifically, he does not contend that a motion to suppress his statements to
law enforcement would have been successful. The district court, therefore, properly
concluded that trial counsel was not ineffective for failing to file a motion to suppress.
16

Failing to Designate Expert

Finally, Quezeda-Duran argues that counsel was ineffective for failing to call an
expert witness on the effects of alcohol and drugs. The district court, however,
determined that the effects of intoxication are within the common knowledge and
experience of jurors. The district court stated that it failed to see how an expert on the
effects of drugs and alcohol would have impacted the outcome of the case. The district
court concluded that McMaster's decision regarding the expert witness was a reasonable
and competent decision regarding trial strategy.

Quezeda-Duran argues that the district court's conclusion that intoxication was
well within the common knowledge and experience of the jurors was conclusory and pure
speculation by the court. He also contends that the district court's ruling lacked any
findings to support it. Quezeda-Duran points out that his defense counsel's expert witness
testified at the K.S.A. 60-1507 hearing that an intoxication expert would have been
helpful on the issue of Miranda and on a suppression motion. Quezeda-Duran contends
that an intoxication expert would have been pivotal for the stated defense of intoxication.
He contends that he was prejudiced by his counsel's ineffectiveness because an expert
could have provided support for his defense that he could not form the specific intent to
commit murder and that the expert could have provided crucial evidence to argue for a
lesser included offense instruction.

Again, we do not have testimony from McMaster stating whether he investigated
the possibility of hiring a defense expert. However, we can consider the prosecutor's
testimony from the K.S.A. 60-1507 motion in which she testified that jurors can
understand intoxication and its effects without the need for expert testimony. And
although Quezeda-Duran's expert testified at the K.S.A. 60-1507 hearing that she
believed it was deficient for McMaster not to obtain an expert witness on intoxication,
the Kansas Supreme Court has stated: "Even though experienced attorneys might
17

disagree on the best tactics or strategy, deliberate decisions based on strategy may not
establish ineffective assistance of counsel. [Citation omitted.]" Flynn v. State, 281 Kan.
1154, 1165, 136 P.3d 909 (2006).

Quezeda-Duran has not met his burden to prove that trial counsel's actions were
not the product of strategy. He has also failed to show a reasonable probability that, but
for McMaster's failure to obtain an expert witness on the effects of alcohol and drugs, the
outcome of the proceeding would have been different. We, therefore, affirm the district
court's decision.

Affirmed.