Richmond v. State

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NOT DESIGNATED FOR PUBLICATION

No. 114,536

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ALBERT E. RICHMOND,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION


Appeal from Crawford District Court; LORI A. BOLTON FLEMING, judge. Opinion filed
November 23, 2016. Affirmed.

Geoffrey Clark, of Mason & Clark, LLC, of Fort Scott, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before PIERRON, P.J., ATCHESON and ARNOLD-BURGER, JJ.

Per Curiam: A jury convicted Albert Eugene Richmond of first-degree murder in
the shooting death of Tyrone Owens. Richmond filed a K.S.A. 60-1507 motion arguing
ineffective assistance of counsel because his trial attorney, Michael Gayoso, failed to
properly object to testimony that years before the shooting Richmond had said he "robbed
and killed" people. Gayoso made no contemporaneous trial objection to the statement as
improper character evidence under K.S.A. 60-447 or as unfairly prejudicial. Richmond
lost this motion on appeal because his appellate counsel, Sara Beezley, failed to properly
brief the issue. Richmond filed a second K.S.A. 60-1507 motion claiming Beezley was
ineffective for making no argument that the admission of the statement tainted the jury
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verdict—an essential component of a 60-1507 claim based on ineffective assistance of
counsel. The district court denied his motion, and Richmond appeals. We affirm as any
possible deficiency in the performance of Gayoso or Beezley resulted in no legal
prejudice to Richmond in light of the compelling evidence of his guilt.

The Kansas Supreme Court affirmed Richmond's convictions on direct appeal in
State v. Richmond, 289 Kan. 419, 212 P.3d 165 (2009) (Richmond I). The following facts
are taken directly from the Supreme Court's opinion:

"On October 21, 2006, defendant Albert Richmond, Rayland Brown, Ramone
Hester, and Malcolm Jackson traveled to a convenience store in Pittsburg so Hester could
buy marijuana from Tyrone Owens. Jackson drove the car, with Richmond in the front
passenger seat and Hester and Brown in the back.
"Upon arrival, Hester called Owens from a pay phone. When Owens arrived,
Hester got into Owens' car and it pulled away. According to Jackson, Richmond told him
to follow. Owens stopped a block later. After Hester purchased $20 worth of marijuana,
he got out and started walking back toward the Jackson car. Jackson testified that
Richmond then handed him a .40 caliber handgun and told him to 'go get' Owens. Once
Jackson neared Owens' passenger side window, however, Owens drove away. Jackson
testified that he got back in his car and tossed the handgun at Richmond, who told him to
follow Owens.
"After pursuing for a couple of blocks, Jackson cut Owens off by swerving in
front of his car. Jackson and Richmond then got out and approached Owens' car. Jackson
testified that he tried to reach in and turn the ignition off so he could take Owens' money.
As Jackson reached, Richmond shot through the front windshield and struck Owens in
the chest. While Owens put the car in reverse to get away, Jackson grabbed the steering
wheel. Owens' car then got stuck on a fire hydrant. According to Jackson, Richmond
fired several more shots, and Owens was hit twice more. One was a head shot which
instantly killed him.
"While Jackson identified Richmond as the shooter, both Hester and Brown
testified that they ducked when they heard shots and saw nothing more happening outside
of the car. Richmond did not testify.
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"After the shooting, Hester moved into the driver's seat and began to drive once
Jackson and Richmond got back in the car. Hester testified that after the shooting,
Jackson was carrying a different handgun from what he had been carrying earlier.
Jackson also got some of Owens' blood on his arm.
"Owens was a well-known drug dealer. Officers found $25 in his left hand, $15
in his pocket, and a small baggy of drugs on his person. They also found a glove
containing Richmond's DNA at the scene. Richmond was arrested in Miami, Florida,
approximately 10 days later.
"In exchange for their testimony in Richmond's jury trial, the three other men
received plea deals. Jackson pled guilty to one count of conspiracy to commit aggravated
robbery, one count of attempted aggravated robbery, and one count of aiding a felon. He
testified that he expected to serve 8 1/2 years in prison. Hester pled guilty to attempted
aggravated robbery and testified that he expected to receive 4 years in prison. All charges
against Brown were dropped. The jury convicted Richmond of first-degree premeditated
murder, and the court later sentenced him to the hard 50." 289 Kan. at 422-24.


At trial, the State presented a strong case against Richmond. Jackson was the only
witness who claimed to have actually seen Richmond shoot Owens. Both Hester and
Brown testified they ducked in the car and did not see the shooting. Brown testified that
he saw both Jackson and Richmond get out of the car before he ducked. Hester testified,
however, that Richmond got out of the car with a gun. Richmond raised his arm and
pointed the gun at Owens' vehicle. Once Richmond raised his arm, Hester heard a shot
and ducked.

Forensic evidence also corroborated the testimony provided by Jackson and
Hester. After the shooting, Jackson's shirt was covered in blood. Jackson claimed this
was because he was attempting to turn off the ignition in Owens' car when Owens was
shot. A forensic pathologist called by the State testified that one of the gunshot wounds to
Owen's head likely would have resulted in significant blood flow—consistent with the
blood on Jackson's clothing if he were trying to turn off the car's ignition, placing him
close to Owens. The pathologist found no stippling around the gunshot wounds, meaning
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the shooter was some distance from Owens. Again, the lack of stippling would be
consistent with Jackson's account that Richmond shot Owens. Additionally, many of the
gunshots were identified as coming from the same gun, corroborating Jackson's
testimony that Richmond was the only shooter.

A local resident also testified at trial. At the time of the shooting, she was sitting
on her porch smoking. She heard gunshots and turned to look in the direction of the
sound. She saw someone get into the passenger side of a white car, and the car took off.
All three codefendants testified Richmond was riding in the passenger seat of the car.

Other evidence also bolstered Richmond's conviction. Multiple witnesses testified
that Richmond had a dominant personality, while Jackson was more submissive.
Richmond's DNA was found on a glove left at the scene of the murder. There was also
testimony from numerous witnesses regarding Richmond's behavior after the shooting
that would support the State's case. After the shooting, Richmond calmly directed
Jackson, Hester, and Brown to Richmond's girlfriend's house. Once there, Richmond was
playing and singing with his daughter, seemingly unperturbed by the night's events. He
also gave instructions to others on concealing the crime and ran away to Florida, where
law enforcement eventually apprehended him.

During the trial, the State also called a KBI agent to testify that 2 years before the
killing, Richmond told her during a drug investigation that he "robbed and killed" by way
of explaining he would not have been involved in cocaine trafficking. The jurors were not
informed about why the agent interviewed Richmond; they only heard some of what he
said to the agent. Gayoso fought unsuccessfully before trial to exclude the statement as
evidence for multiple reasons. During trial, Gayoso again objected to the KBI agent's
testimony about Richmond's statement. But he did not then object on the grounds the
statement was inadmissible character evidence under K.S.A. 60-447 or that the
impermissible prejudice of the statement substantially outweighed its probative value, see
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State v. Logsdon, 304 Kan. 3, 34, 371 P.3d 836 (2016) (court may exclude unduly
prejudicial evidence). The district court admitted the statement.

On direct appeal, Richmond argued the I-rob-and-kill statement was improperly
admitted as character evidence or as evidence of his commission of other crimes and, in
any case, was unfairly prejudicial. The Kansas Supreme Court rejected the other-crimes
argument on the merits and refused to consider the other grounds because Gayoso had not
raised them in the contemporaneous objection he made when the statement was offered at
trial. Richmond I, 289 Kan. at 427-30; see K.S.A. 60-404 (party challenging evidence at
trial must lodge "timely" objection "mak[ing] clear the specific ground").

Richmond timely filed his first 60-1507 motion to set aside the conviction. To
succeed on a 60-1507 motion, a criminal defendant must show both that his or her
lawyer's representation fell below a level of reasonable competence required by the right
to counsel guaranteed in Sixth Amendment to the United States Constitution and that the
outcome of the case likely would have been different had the lawyer performed
competently. See 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); Haddock v. State, 282 Kan. 475, 512-13, 146 P.3d 187 (2006). In presenting
Richmond's first 60-1507 motion, Beezley argued, among other things, that Gayoso
should have objected to the I-rob-and-kill statement as impermissible character evidence
and as causing unfair prejudice. The district court denied the 60-1507 motion. On appeal,
Beezley repeated her argument about the inadequacy of Gayoso's trial objection, but she
never asserted or explained how the admission of the statement prejudiced Richmond
during the murder trial. In other words, she failed to address the second part of the
Strickland test—how the exclusion of the statement likely would have affected the
verdict. This court affirmed the denial of the 60-1507 motion precisely because Beezley
didn't fully brief the habeas corpus claim. Richmond v. State, No. 106,885, 2012 WL
5366932, at *4 (Kan. App. 2012) (unpublished opinion).
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Richmond then filed his second 60-1507 motion—the one we have before us—
alleging Beezley inadequately represented him because she failed to make any argument
as to why Gayoso's limited trial objection to the I-rob-and-kill statement tainted the jury
verdict. After appointing a new lawyer for Richmond and holding an evidentiary hearing,
the district court determined that in light of the strength of the government's admissible
evidence against Richmond in the murder trial, the statement was not a material factor in
the outcome. Therefore, according to the district court, the legal representation of both
Beezley and Gayoso did not result in any legal prejudice to Richmond and he was
entitled to no habeas corpus relief. Richmond has now appealed that ruling.

A defendant's claim of ineffective assistance of counsel presents mixed questions
of fact and law. When the district court conducts a full evidentiary hearing on such
claims, we must determine whether substantial competent evidence supports the district
court's factual findings and whether those factual findings support the court's legal
conclusions. 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).

Generally, courts determine counsel's performance was deficient before
proceeding to the second prong of the Strickland standard. But that is not invariably so,
and a reviewing court may deny relief based on the absence of prejudice to the defendant
without deciding the constitutional adequacy of the legal representation. See Strickland,
466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed."); Sola-Morales, 300 Kan.
at 886. We decline to explore the adequacy of Gayoso's and Beezley's representation in
this case, particularly given the complex nature of the issues surrounding Gayoso's
objections to the I-rob-and-kill statement. We simply assume for the sake of argument
that both Gayoso and Beezley performed deficiently. Richmond cannot establish these
failures prejudiced him.
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The cornerstone issue in Richmond's second 60-1507 proceeding is this: Was
Beezley's failure to brief the prejudice prong of Strickland in the appeal of the first 60-
1507 motion itself prejudicial? It would have been if Beezley could have offered a
winning argument as to why the result of the jury trial likely would have been different
had the I-rob-and-kill statement been excluded as evidence. But as the district court ruled,
that is not the case. As we have outlined, the State presented overwhelming evidence
against Richmond at trial. Even assuming Gayoso's performance failed the first prong of
the Strickland standard, the admission of the I-rob-and-kill statement was inconsequential
to the jury's verdict. Accordingly, Richmond would not have prevailed in his original 60-
1507 motion even if Beezley had adequately briefed the appeal, and that, in turn,
precludes any relief in this sequential motion.

Affirmed.