State v. Brooks

1

NOT DESIGNATED FOR PUBLICATION

No. 113,454

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MONTA BROOKS aka MANTA BROOKS,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed February 5, 2016.
Affirmed.

Janine Cox, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and JOHNSON, S.J.

Per Curiam: Monta Brooks appeals the district court's order denying his K.S.A.
60-1507 motion after an evidentiary hearing. At the end of the hearing, the district court
denied the motion and stated its reasons for doing so on the record. Brooks contends on
appeal, however, that the district court did not enter sufficient findings of fact and
conclusions of law following the hearing. Brooks further contends that his trial counsel
was ineffective in several respects. Based on our review of the record, we conclude that
the district court adequately explained its reasons for denying Brooks' K.S.A. 60-1507
motion and that Brooks has failed to demonstrate that his trial counsel was ineffective.
Thus, we affirm.
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FACTS

In his direct appeal, a panel of this court explained the facts of Brooks' underlying
criminal case. State v. Brooks, No. 105,358, 2012 WL 309075 (Kan. App. 2012)
(unpublished opinion), rev. denied 296 Kan. 1131 (2013). For the purposes of this appeal,
we note that Brooks was an inmate at the Hutchinson Correctional Facility (HCF). While
incarcerated at HCF, Brooks was involved in an incident that led to him being convicted
in September 2010 of one count of battery against a corrections officer and two counts of
criminal threat. It is his 2010 conviction that is the subject of his current K.S.A. 60-1507
motion.

From the facts set forth in the opinion issued in Brooks' direct appeal, we glean
that on the evening of July 6, 2009, Brooks refused to leave the chow hall after a
corrections officer ordered him to do so because he had finished eating. After writing a
disciplinary report, the officer went to Brooks' cell to return his inmate identification
badge. When the officer arrived at the cell, Brooks was holding a mirror through the bars
so he could see down the corridor. The officer told Brooks that inmates were not allowed
to use mirrors in this manner. Brooks responded by taking his identification badge,
pulling the mirror inside his cell, and spitting on the corrections officer.

The next day, Brooks submitted two inmate request forms. In each, Brooks
threatened to kill the corrections officer who he had spit on as well as another corrections
officer who Brooks was upset with over an unrelated incident. Subsequently, the State
filed a criminal complaint in which it charged Brooks with one count of battery against a
corrections officer—based on the spitting incident—and two counts of criminal threat—
based on the threats to kill the two corrections officers.

The district court conducted a jury trial on September 28, 2010, during which
several witnesses testified for the State. The State also admitted into evidence the two
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inmate request forms and two videos showing Brooks' interaction with the correction
officer at his cell. The videos were of such low quality that they only depicted Brooks
leaning toward the corrections officer but did not clearly show him spitting on the officer.
Brooks did not testify, call any witnesses, or present any evidence at trial. After
deliberation, a jury convicted Brooks on all counts.

On January 27, 2012, a panel of this court found that there was sufficient evidence
to sustain Brooks' convictions. Thereafter, Brooks filed a petition for review. The
following year, on February 4, 2013, the Kansas Supreme Court denied Brooks' petition
for review, and a mandate was subsequently entered on February 5, 2013.

On January 15, 2014, Brooks filed a "motion to vacate and set aside conviction
and grant new trial," which the district court appropriately treated as a K.S.A. 60-1507
motion. See State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013). Although Brooks
alleged several errors in his motion, he later agreed that the only issues properly before
the district court were his claims of ineffective assistance of trial counsel. More
specifically, Brooks claimed that during voir dire, several jurors made statements
suggesting that they were unable to impartially decide his case and that his trial
counsel—Bonnie Corrado—permitted the State to "stack the jury" in its favor. He further
claimed that his trial counsel failed to inform him of his "right to call witnesses" to testify
on his behalf at trial.

Two days after Brooks filed his K.S.A. 60-1507 motion, the district court
appointed counsel to represent him. Shortly thereafter, the district court set the motion for
an evidentiary hearing. On May 30, 2014, the same district judge who had conducted the
jury trial in the underlying criminal case presided over the evidentiary hearing on Brooks'
K.S.A. 60-1507 motion.

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At the beginning of the evidentiary hearing, the district court sought to confirm
whether Brooks had voluntarily waived the attorney-client privilege so that Corrado
could testify about her representation; specifically, the transcript of the proceeding
indicates the following exchange between Brooks and the district court:

"THE COURT: Mr. Brooks, based upon your motion, are you waiving any
attorney/client privilege you have in relation to Ms. Corrado's representation of you?

"THE DEFENDANT: Need to break it down because I'm fully not
comprehending right now.

"THE COURT: There's a privilege that says statements between a[n] attorney
and their client are privileged.

"THE DEFENDANT: Uh-huh.

"THE COURT: Ms. Corrado was your attorney. She cannot be questioned about
what was spoke between you and her unless you waive that privilege.

"THE DEFENDANT: As in when, I assume you say I waive it I'm assuming I
can't, we can't discuss that. That's what you're saying, right?

"THE COURT: No, I just need to know are you waiving the privilege of
counsel/client privilege or not, yes or no.

"THE DEFENDANT: No.

"THE COURT: It's not a difficult question.

"THE DEFENDANT: No, no.

5

"THE COURT: Okay. Then we're not going to proceed because Ms. Corrado
cannot be examined or cross-examined in regards to anything in relation to contacts
between Mr. Brooks and her.

"THE DEFENDANT: That's kind of funny because—

"THE COURT: No, I didn't ask you to talk. You only talk if I ask you to talk.
You have an attorney.

"[Counsel for Defendant]: Judge, can I have a moment?

"THE COURT: Yes, you may . . .

"THE DEFENDANT: I want to check that man because—

"THE COURT: No, you do not—listen to me, sir. You do not talk.

"THE DEFENDANT: Watch who you're talking to.

"THE COURT: Okay. One more time that you talk when I tell you not to talk
you're going to be taken back to the prison and we're going to continue the hearing
without your presence.

(Counsel and defendant confer out of the hearing of the reporter.)

"[Counsel for Defendant]: You got to tell the court that.

"The Defendant: Yeah, man, I waive it.

"THE COURT: Thank you, Mr. Brooks.

. . . .
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"THE COURT: Mr. Brooks, we're not—okay. Take him back to prison because
the defendant is making sexual gestures from his chair, he's indicating he's not going to
participate.

"THE DEFENDANT: Hell, that's a sexual gesture, man. You's a bitch, man.
Here's your pen, man. He's a straight bitch, a real bitch. Ah, he's a pussy, man. Don't
worry about it, I'll be out in 10 years, man. I'll see you then. I got 13 more years left.

(The defendant is removed from the courtroom.)

"THE COURT: The court will find the defendant has voluntarily absenced [sic]
himself from the proceedings by his conduct, by his language, and his actions. In the
court's view he was simulating masturbation as he was sitting at counsel table."

Following Brooks' removal from the courtroom, Corrado testified about her
representation during the underlying criminal case. Because it had been nearly 4 years
since she had represented Brooks, Corrado understandably had a difficult time recalling
some of the details of her representation. Corrado recalled meeting with Brooks twice
before trial while he was in a segregation unit at El Dorado Correctional Facility (EDCF).
She recalled taking a laptop with her on one occasion to allow Brooks to watch the video
of the incident and that she met with him "quite a while that day" to discuss court
procedures and trial tactics. More specifically, Corrado spoke with Brooks regarding how
she would approach his defense at trial. She also recalled that Brooks had requested the
personnel files of both corrections officers. Specifically, she testified:

"A. I believe I requested personnel files. I know I have requested them in, in
cases for them to be viewed in camera by the judge and often there's nothing in them of,
that we could use.

"Q. Okay.

7

"A. Now, specific to his case I can't remember if I did that or not. I would have
to, like, go through the file and see if I, if I filed that."

When asked about the process of jury selection, Corrado testified that she always
gives her client a copy of the juror seating chart and a pen. She also asks them to take
notes and to let her know the jurors they wish to strike. Corrado confirmed that this
occurred in Brooks' case, and she produced Brooks' copy of the seating chart, which
contained the notes he had taken during voir dire. According to Corrado, "before I ever
made any decision on which person to strike or not it would ultimately be my client's
decision. I have never overruled my client's decision on their request." Upon further
questioning on the matter, she explained her theory on client involvement during voir dire
as follows:

"A. [M]y theory behind it is it's his trial/her trial, they suffer the consequences,
they need to have decision making. Of course I guide them, my education and
experience, and I will give them my opinion on their chosen person, but ultimately if they
say no, I want that person or I don't want that person, they make the decision."

Corrado further testified that she remembered Brooks telling her about prior
altercations he had with the corrections officer he was accused of spitting on, but she
could not recall questioning the corrections officer during trial about the other incidents.

Corrado remembered Brooks asking her to subpoena fellow inmates who may
have witnessed the altercation with the corrections officer, but she testified that Brooks
did not provide her with any of the inmates' names. She also testified that she spoke with
someone at the department of corrections over the phone in an attempt to identify the
inmates who may have witnessed the incident. According to Corrado, the person she
spoke to at the department of corrections told her that it did not have a record of the cells
in which inmates were housed on a particular date. During cross-examination, Corrado
testified that she diligently tried to identify and locate other inmates to testify on Brooks'
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behalf. She also testified that she spoke with Brooks before and during trial about his
right to testify at trial, but she believed that he had chosen not to testify.

After Corrado finished testifying, Brooks' counsel advised the district court that
Brooks had intended to testify at the evidentiary hearing before he was removed from the
courtroom. However, counsel stated that he was unsure whether Brooks would cooperate
in giving his testimony if he were brought back to the courtroom. The district court then
mentioned the possibility of permitting Brooks to testify by video, but the State argued
that Brooks had waived his right to testify by his conduct at the evidentiary hearing. The
district court ultimately instructed Brooks' counsel to contact his client and tell him that if
he apologized, he could testify via Skype. The district court stated, however, that if
Brooks did not apologize, it would proceed to rule on the motion.

On October 24, 2014, the district court resumed the evidentiary hearing. At the
beginning of the hearing, Brooks' counsel informed the district court that he had spoken
with his client but that Brooks refused to apologize because he did not believe he did
anything wrong. He also reported that he told Brooks the district court would conclude
the hearing and rule on the motion if he did not apologize, to which Brooks responded he
was "fine with."

The district court stated on the record that it had been contacted by the department
of corrections prior to the hearing on May 30, 2014, which told the court that it would
have had to transport Brooks individually for the hearing because of several problems he
had caused since being incarcerated. The district court further stated that "in this year
alone [Brooks] had 14 disciplinary hearings: avoiding an officer, assault, four disobeying
orders, two disrespects, one threatening an officer, one battery, one arson, and one
additional hearing, or disciplinary conviction. That doesn't count the numerous
disciplinary convictions he's had since he entered in prison in 2008." The district court
also pointed out that it had tried to resolve the matter by permitting Brooks to apologize.
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Under the circumstances, the district court found that Brooks had voluntarily excused
himself from the evidentiary hearing by his inappropriate actions.

Thereafter, the district court then denied the K.S.A. 60-1507 motion. In support of
the denial, the district court stated on the record that Corrado's performance was not
constitutionally deficient, and even if it could be construed as such, it was only because
she may have relied too much on her client. The district court also found that even if
Brooks had met the first prong of the Strickland test, he was not prejudiced by Corrado's
performance at trial. The district judge stated that he recalled the evidence he had heard
while presiding over the jury trial in the underlying criminal case and remembered that
"there was more than sufficient evidence to support" the jury verdict and that it was not
"a close case."

Brooks subsequently filed a notice of appeal, which became timely on November
3, 2014, when the district court filed a Journal Entry denying Brooks' K.S.A. 60-1507
motion. See Supreme Court Rule 2.03(a) (2015 Kan. Ct. R. Annot. 13); State v. Hall, 298
Kan. 978, 988, 319 P.3d 506 (2014).

ANALYSIS

Compliance with Kansas Supreme Court Rule 183(j)

On appeal, Brooks first contends that the district court did not make sufficient
findings of fact and conclusions of law as required by Kansas Supreme Court Rule 183(j)
(2015 Kan. Ct. R. Annot. 271). In response, the State contends that when the district
court's journal entry and statements from the bench are viewed together, they were
sufficient. Our review of whether the district court complied with Supreme Court Rule
183(j) is de novo. See Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009).

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If—taken together—a district court's oral expressions at the time of the hearing
and its subsequent findings and conclusions in a journal entry are sufficient for an
appellate court to consider an appellant's arguments, then remand is not necessary. See
Robertson, 288 Kan. at 232-33. "'"[M]eaningful appellate review is precluded where a
trial court's findings of fact and conclusions of law are inadequate to disclose the
controlling facts or basis for the court's findings."'" State v. Rodriguez, 302 Kan. 85, 91,
350 P.3d 1083 (2015) (quoting State v. Hoge, 283 Kan. 219, 221-22, 150 P.3d 905
[2007]).

Brooks argues that the district court "articulated no conclusions of law except to
misstate the second prong of the Strickland test." This is incorrect. At the conclusion of
the evidentiary hearing, the district court stated on the record:

"The court has heard closing argument. The ineffective assistance of counsel, the
standards are well known going back to the Strickland and the United States Supreme
Court. It's been adopted and followed numerous times in the Kansas appellate courts. It's
a two prong test: was the performance deficient, using a[n] objective standard. The court
will find based upon the evidence presented from trial counsel that the performance was
not deficient. That, in fact, if trial counsel made an error it was probably because relying
too much on the advice of Mr. Brooks on how he wanted decisions to be made. But the
court will find the first prong has not been met.

"And that even if the first prong were met, under the second prong the court must
find the, there's a deficient performance prejudiced the defendant to a reasonable degree
of probability. The court will find even if the first prong was met, the second prong was
not met. Also having heard the jury trial and the evidence, that in fact there was more
than sufficient evidence to support the jury, their verdict. The court did not find it to be a
close case, and therefore the motion, or the habeas corpus petition is denied."

The district court's subsequent journal entry stated that Brooks had voluntarily
absented himself from the hearing by way of his conduct. It also stated that "[b]ased on
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the evidence presented, the court denies the defendant's Petition under K.S.A. 60-1507
due to ineffective assistance of counsel." Although the district court certainly could have
entered a more detailed journal entry, we find no reversible error because the district
court's explanation of its ruling on the record at the conclusion of the evidentiary hearing
provides a sufficient basis for appellate review. See Robertson, 288 Kan. at 232-33
(holding that the district court's "sparse" findings and conclusions were adequate to
permit appellate review in light of the district judge's additional statements at the
hearing); Horn v. State, No. 111,069, 2014 WL 7653863, at *4 (Kan. App. 2014)
(unpublished opinion), rev. denied 302 Kan. ___ (August 20, 2015) (same).

In addition, Brooks' counsel did not object to a perceived failure to make sufficient
findings or conclusions. When no objection is made to a district court's inadequate
findings of fact or conclusions of law, we may presume that the district court found all
facts necessary to support its judgment. See Phillips v. State, 282 Kan. 154, 179, 144 P.3d
48 (2006); Moore v. State, No. 110,390, 2015 WL 249840, at *2 (Kan. App.)
(unpublished opinion), rev. denied 302 Kan. ___ (August 20, 2015). This is especially
true in this case because the same judge who presided over Brooks' criminal case heard
his K.S.A. 60-1507 motion. See Gilkey v. State, 31 Kan. App. 2d 77, 78, 60 P.3d 351
(2003); see also Wilkins v. State, 286 Kan. 971, 988, 190 P.3d 957 (2008) ("We have
previously observed that substantial questions of fact about the performance of trial
counsel 'can best be evaluated by the judge who presided at trial.'"). Thus, we conclude
that when considering the district court's oral expressions explaining its reasons for
denying Brooks' K.S.A. 60-1507 motion along with the journal entry, we are able to
conduct meaningful appellate review.

Alleged Ineffective Assistance of Counsel

Brooks next contends that the trial counsel in his underlying criminal case was
ineffective. As indicated above, Brooks makes four allegations of ineffective assistance
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of trial counsel. In response, the State contends that Brooks has failed to establish that his
trial counsel's assistance was ineffective. Moreover, the State asserts that there is nothing
in the record to suggest that Brooks was prejudiced by the legal representation he was
provided in the underlying criminal case.

Both our federal and state constitutions guarantee the right of a criminal defendant
to the effective assistance of counsel. State v. Brown, 300 Kan. 565, 574-75, 331 P.3d
797 (2014). To establish ineffective assistance of counsel, the defendant must show (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. See State v. Coones, 301
Kan. 64, 70, 339 P.3d 375 (2014).

Under the first prong, a defendant must show that counsel's representation fell
below an objective standard of reasonableness. State v. Betancourt, 301 Kan. 282, 306,
342 P.3d 916 (2015). In doing so,

"'[j]udicial scrutiny of counsel's performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel's defense after it
has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. [Citation omitted.] A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action "might be
considered sound trial strategy." [Citation omitted.] There are countless ways to provide
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effective assistance in any given case. Even the best criminal defense attorneys would not
defend a particular client in the same way. [Citation omitted.]'" Coones, 301 Kan. at 70
(quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674
[1984]).

See State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014).

Under the second prong, a defendant must demonstrate "'a reasonable probability
that, but for counsel's deficient performance, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. A court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury.'" Edgar v. State, 294 Kan. 828, 838, 283
P.3d 152 (2012) (quoting Bledsoe v. State, 283 Kan. 81, 90-91, 150 P.3d 868 [2007]).

Generally, it is "'within the province of a lawyer to decide what witnesses to call,
whether and how to conduct cross-examination, and other strategic and tactical
decisions.'" Sola-Morales v. State, 300 Kan. 875, 887, 335 P.3d 1162 (2014) (quoting
Thompson v. State, 293 Kan. 704, 716, 270 P.3d 1089 [2011]). Hence, a defendant bears
the burden of showing that trial counsel's actions were not the product of strategy. 300
Kan. at 888.

As the State points out, Brooks raised only two claims of ineffective assistance of
trial counsel in his K.S.A. 60-1507 motion: (1) trial counsel was ineffective by
permitting Brooks to strike certain jurors; and (2) trial counsel failed to investigate and
subpoena fellow inmates to testify on his behalf. On appeal, however, Brooks attempts to
raise two additional claims of ineffective assistance of counsel that he did not argue
before the district court. First, that trial counsel failed to obtain the guards' disciplinary
reports Brooks requested; and second, that trial counsel did not inform him of his right to
testify on his own behalf.
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In regards to the additional claims, we will generally not consider an allegation of
ineffective assistance of counsel raised for the first time on appeal. See State v. Dull, 298
Kan. 832, 839, 317 P.3d 104 (2014). Only under extraordinary circumstances will we
consider a claim of ineffective assistance of counsel that was not asserted before the
district court. One of these circumstances is where there are no factual issues presented
and the test for ineffective assistance of counsel can be applied as a matter of law based
upon the appellate record. See Wimbley v. State, 292 Kan. 796, 807, 275 P.3d 35 (2010).

We also note that Brooks fails to follow Supreme Court Rule 6.02(a)(5) (2015
Kan. Ct. R. Annot. 41), which requires an explanation of why the issues he raises for the
first time on appeal are properly before us. In fact, the Kansas Supreme Court has
recently emphasized that "Rule 6.02(a)(5) means what it says and is ignored at a litigant's
own peril." State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015); State v.
Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). Nevertheless, even if we consider
the two additional allegations of ineffective assistance of counsel asserted by Brooks, we
find the record on appeal clearly refutes these claims.

Arguably, Brooks has also abandoned all his claims on appeal by failing to support
them with relevant authority. Other than a cursory citation to the two-part Strickland test,
Brooks does not cite any authority to support his specific claims of ineffective assistance
of counsel. As a general rule, a point raised incidentally in a brief and not argued therein
is deemed abandoned. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636,
645, 294 P.3d 287 (2013). Failure to support a point with pertinent authority or show why
it is sound despite a lack of supporting authority or in the face of contrary authority is
akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273
(2013).



15

Trial Counsel's Performance During Jury Selection

Brooks' argument in regards to Corrado's performance during voir dire has
evolved throughout this case. In his K.S.A. 60-1507 motion, Brooks argued that Corrado
did not effectively use her preemptory challenges and permitted the State to "stack the
jury in [its] favor." In making his argument, he referenced five jurors who he believes
Corrado should have struck. On appeal, Brooks shifts the focus of his argument away
from statements made by specific jurors to Corrado's statements made during the
evidentiary hearing on his K.S.A. 60-1507 motion, in which she explained that she
always permits the defendant to strike a juror if he or she is adamant about doing so.

Initially, Brooks complains of one potential juror who stated that he could
probably not make a fair and impartial decision if the defendant refused to testify.
However, Corrado struck this juror with a preemptory challenge. In addition, Brooks
points to a potential juror who stated that she would not believe a witness is telling the
truth if he or she could not maintain eye contact. However, the State struck this juror with
a preemptory challenge. Therefore, these contentions have no merit.

Next, the record does not support Brooks' complaints about the three remaining
jurors. Brooks first contended in his K.S.A. 60-1507 motion that Corrado should have
struck one juror who admitted that she did not like inmates. The record indicates the juror
stated that in 1987—23 years before the trial—she worked for 6 months as a food service
supervisor for a company that provided food services in HCF. The prosecutor then went
on to question her as follows:

"MS VOTH: Okay. Is there anything about that experience that would make it
hard for you to listen to the evidence as it's presented?

"JUROR: No. I, I didn't, I didn't care for it out there, but I gave it, you know,
gave it my best shot and that was it, so.
16

"MS VOTH: Okay. What about it did you not care for?

"JUROR: Any of it.

"MS VOTH: Okay. Like the people, the job?

"JUROR: The people.

"MS VOTH: Okay.

"JUROR: All. Not just inmates, just the whole.

"MS VOTH: In general?

"JUROR: Staff in general, yeah.

"MS VOTH: Okay. And even with your experience there, do you still think you
would be able to be fair and impartial?

"JUROR: Yes."

The juror stated that she did not care for all of the people she worked around—she
did not suggest a particular prejudice against inmates, as Brooks claims.

Brooks also noted in his motion that a second juror admitted to being friends with
a sergeant from the Reno County Sheriff's Department. However, that officer did not
testify at Brooks' jury trial nor at his K.S.A. 60-1507 hearing, and the juror stated that she
did not believe her friendship would affect her ability to be a juror. Lastly, Brooks points
to a third juror who he believes "admitted to believing once a criminal always a
criminal." The record does not support this contention. At one point during voir dire,
Corrado asked,

17

"On a scale of one to ten, with one being once a criminal always a criminal, and ten, I
don't care what he had done in his past, I'm going to set that aside and look at the
evidence in this case . . . where do you think you would fall?"

The third juror ranked his opinion as a "five"—not a "one." Thus, we find that the
record does not support Brooks' contention.

In regards to Brooks' claim on appeal, Brooks argues that Corrado ceded too much
authority to Brooks by permitting him to strike certain jurors he absolutely did not want
on the jury. Brooks stated in his K.S.A. 60-1507 motion that Corrado ignored her
obligation to protect his right to a fair trial and permitted the State to stack the jury in its
favor. However, it is an unfair characterization of her representation to suggest that
Corrado permitted Brooks to conduct jury selection. At the hearing on Brooks' motion,
Corrado testified that she gave Brooks a copy of the seating chart and a pen and asked
him to take notes and tell her of jurors he wished to strike. She even produced the seating
chart, which contained notes that Brooks had taken during voir dire.

Rather, the trial record indicates that Corrado conducted a meaningful voir dire.
See Bledsoe, 283 Kan. at 103-04. She thoroughly questioned prospective jurors, testing
their qualifications and competency. See United States v. Bedonie, 913 F.2d 782, 795
(10th Cir. 1990); Deghand v. Wal-Mart Stores, Inc., 980 F. Supp. 1176, 1179 (D. Kan.
1997). If trial counsel conducts a thorough investigation, strategic choices made
thereafter are "virtually unchallengeable." Flynn v. State, 281 Kan. 1154, 1157, 136 P.3d
909 (2006); see K.S.A. 22-3408(3) (providing: "The prosecuting attorney and the
defendant or his attorney shall conduct the examination of prospective jurors.").
Accordingly, we find that Corrado was not ineffective for including Brooks in the jury
selection process.


18

Trial Counsel's Decision to Not Call Certain Witnesses to Testify

Brooks argues that Corrado failed to adequately search for inmates who might
have been able to testify about the spitting altercation. Included in a trial counsel's
responsibility to make strategic and tactical decisions is the duty to conduct a reasonable
investigation. Shumway v. State, 48 Kan. App. 2d 490, 505, 293 P.3d 772, rev. denied
298 Kan. 1203 (2013) (citing State v. Hedges, 269 Kan. 895, 914, 8 P.3d 1259 [2000]).
However, counsel may make a reasonable decision that makes particular investigations
unnecessary. "'In any ineffectiveness 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.'" State v. Cheatham, 296 Kan. 417, 437, 292 P.3d
318 (2013) (quoting Strickland, 466 U.S. at 690-91).

Here, Corrado testified that Brooks asked her to subpoena fellow inmates who
may have been able to view the altercation but that Brooks was unable to provide her
with any names. She further stated that she called the department of corrections but that
they told her they did not have a record of who was located in those cells. Moreover, the
video produced at trial was of such low quality that it was impossible to identify the other
inmate who was housed in Brooks' cell. As such, it is hard to imagine what more Corrado
could have done to locate potential witnesses. Thus, we find that Corrado met her duty to
adequately investigate potential witnesses.

Trial Counsel's Alleged Failure to Inform Brooks of His Right to Testify

Brooks also contends that trial counsel failed to advise him of the right to testify
on his own behalf. The record on appeal clearly refutes this claim. During the hearing on
Brooks' K.S.A. 60-1507 motion—which was held nearly 4 years after trial—Corrado
testified that she spoke with Brooks about testifying and that she was "pretty sure he
chose not to." The trial transcript provides that after the State rested its case-in-chief, the
19

district court asked Brooks whether he had consulted with Corrado about testifying, and
he responded, "From what's been told to me, we have discussed it, and at the point right
now I just, I'm still kind of weighing out the options yea or nay . . . ." The district court
then recessed for the evening so that Brooks could decide whether to testify. The district
court conducted the following exchange with Brooks the next morning:

"THE COURT: . . .
"Last night when we adjourned the state had rested. Mr. Brooks wanted the
evening to determine if in fact he was going to testify. Miss Corrado, have we come to a
decision in that regard?

"MS. CORRADO: Yes, he has, judge. Mr. Brooks has informed me that he
chooses not to testify.

"THE COURT: Mr. Brooks, would you please rise? We had a discussion about
this yesterday afternoon when we adjourned, but for the record I want to verify that you
yourself personally have made a decision to exercise your rights against self-
incrimination and not to testify. Is that correct, sir?

"THE DEFENDANT: Yes, sir, I have.

"THE COURT: Okay. Thank you very much.

"THE DEFENDANT: You're welcome."

Hence, we find no merit in this claim.

Trial Counsel's Alleged Failure to Obtain Guards' Disciplinary Reports

Finally, Brooks asserts that his trial counsel was ineffective for failing to seek the
guards' disciplinary reports. The record is not entirely clear on this point. Corrado stated
during the evidentiary hearing that she was unable to recall whether she had requested the
20

guards' personnel files in this case but that she had previously requested personnel files in
similar cases, if not this one. She testified that in her experience, the trial judge would
view the files in camera and find no relevant information. See State v. Deavers, 252 Kan.
149, 157-58, 843 P.2d 695 (1992) (finding that district court properly quashed
defendant's subpoena duces tecum for county sheriff's personnel and internal affairs files
after the trial judge and the Kansas Supreme Court reviewed the files in camera and
found nothing relevant to the defense).

Despite Corrado's foggy recollection—which is understandable considering the
lapse of time between trial and the evidentiary hearing—Brooks has failed to indicate
how the guards' personnel files would have been relevant to his defense. That is,
assuming Corrado did not request the personnel files, he has not established how her
failure to do so prejudiced him to the degree that he was denied a fair trial. See Coones,
301 Kan. at 70. There was overwhelming evidence at trial that Brooks threatened to kill
two corrections officers as well as that Brooks spit on one of those officers.

Rather, Brooks' request seems more like a fishing expedition, which—considering
that Brooks threatened to kill both guards—would have been improper. See State v.
Moore, No. 103,451, 2011 WL 1878006, at *2 (Kan. App. 2011) (unpublished opinion)
(finding that defendant failed to explain how new evidence would have been relevant at
trial and concluding that his request was an improper fishing expedition). Consequently,
we find that the record does not support Brooks' claim.

We, therefore, conclude that the district court's denial of Brooks' K.S.A. 60-1507
motion should be affirmed.

Affirmed.