Summers v. State

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NOT DESIGNATED FOR PUBLICATION

No. 114,967

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JAMAAL A. SUMMERS,
Appellant

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed February 3, 2017.
Affirmed.

Steven Willibey, of Kansas City, Missouri, and Adam G. North, of Kansas City, Missouri, for
appellant.

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

Before GARDNER, P.J., POWELL, J., and HEBERT, S.J.

Per Curiam: After his murder conviction was affirmed on direct appeal, Jamaal
A. Summers filed a K.S.A. 60-1507 motion, alleging that he received ineffective
assistance of trial counsel. Following an evidentiary hearing, the district court denied the
motion, finding that trial counsel was effective. On appeal, Summers challenges the
district court's denial of his motion. After a thorough review of the record, we find no
error by the district court and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 2007, Salvador Velasquez' wife returned home to find Velasquez'
body on the floor. He had been shot in the chest, head, and neck. Earlier that day,
Velasquez had told his wife and a neighbor that his friend "Homi" was coming over.
Police found numbers in Velasquez' phone listed under "Homi" and "Homi2" and were
able to trace one of the numbers to Summers. Phone records showed 12 calls between the
two men on the day of the shooting. Velasquez' wife identified Summers as the man she
knew as "Homi." One of Velasquez' neighbor also identified Summers as the man she
saw at Velasquez' house before the shooting. When police questioned Summers, he
initially denied knowing Velasquez but later admitted that Velasquez was one of his
marijuana dealers.

Police learned that Summers owned a .40 caliber handgun, the same caliber as the
three shell casings found in Velasquez' house. On the morning of the shooting, Summers
reported the gun stolen. As part of the investigation, police also spoke with Summers'
former neighbor, who reported that she heard gunshots coming from Summers' yard more
than 6 months before on New Year's Eve. The neighbor's son found a spent shell casing
in the yard, which he gave to police. The State ultimately charged Summers with first-
degree murder.

David Wright, a Kansas Bureau of Investigation firearms expert, testified at trial
that when firearms are manufactured, toolmarks are created on the firearms which can be
transferred to bullets or shell casings, enabling him to match bullets or shell casings to a
particular gun. Based on the toolmarks on the shell casings found at the scene and the
toolmarks on the shell casing found by Summers' former neighbor, Wright concluded that
all four shell casings were fired from the same gun.

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The lead detectives testified about trying to conduct a second interview with
Summers' wife. The first detective testified that when they approached Summers' wife a
second time, she told them to contact "her attorney." The second detective testified that
Summers' wife said they could speak with "their attorney." At the end of the 5-day trial,
the jury found Summers guilty.

Following his conviction, Summers filed a direct appeal with the Kansas Supreme
Court, which affirmed his conviction in State v. Summers, 293 Kan. 819, 272 P.3d 1
(2012). Summers then filed his present motion under K.S.A. 60-1507, raising claims of
ineffective assistance of trial counsel. The only witness Summers presented at the
evidentiary hearing was trial counsel. In a memorandum decision, the district court
concluded that even assuming deficient performance by trial counsel, Summers had not
established prejudice. Moreover, the court found that Summers, who had the burden to
prove that another attorney would have acted differently based on the evidence presented
against him, had failed to do so. Finding that trial counsel provided effective assistance of
counsel, the district court denied Summers' motion.

Summers timely appeals.

DID THE DISTRICT COURT ERR IN DENYING SUMMERS' K.S.A. 60-1507 MOTION?

When a district court conducts a full evidentiary hearing to consider claims raised
in a K.S.A. 60-1507 motion, it must issue findings of fact and conclusions of law.
Supreme Court Rule 183(j) (2017 Kan. S. Ct. R. 222). We review the district court's
findings of fact, determining whether they are supported by substantial competent
evidence and are sufficient to support the district court's conclusions of law. State v.
Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013). The district court's conclusions of law
are reviewed de novo. Thompson v. State, 293 Kan. 704, 716, 270 P.3d 1089 (2011).

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The Sixth Amendment to the United States Constitution guarantees criminal
defendants the right to the effective assistance of counsel. Sola-Morales v. State, 300
Kan. 875, 882, 335 P.3d 1162 (2014). To show that counsel was ineffective, a movant
must show that (1) counsel's performance was deficient; and (2) counsel's deficient
performance caused prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); see also Chamberlain v. State, 236 Kan. 650, 656-57, 694
P.2d 468 (1985) (adopting Strickland). Counsel's performance was deficient if,
considering all the circumstances, it "fell below an objective standard of reasonableness."
Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). A strong presumption exists that
counsel's conduct was reasonable. 283 Kan. at 90. "[W]hat witnesses to call, whether and
how to conduct cross-examination, and other strategic and tactical decisions" are within
counsel's province and are virtually unchallengeable. Thompson, 293 Kan. at 716; see
Strickland, 466 U.S. at 690-91.

Prejudice is proven

"by showing that there is a reasonable probability that, but for counsel's deficient
performance, the result of the proceedings 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." Bledsoe, 283 Kan. at 90-91.

Circumstantial evidence alone is sufficient to support a conviction of even the gravest
offense. State v. Darrow, 304 Kan. 710, 716, 374 P.3d 673 (2016).

A. Wright's testimony

Summers' first claim is that trial counsel failed to effectively challenge Wright's
testimony about the shell casings. As Summers notes, some federal district courts have
held that while admissible under the federal standard for expert testimony, toolmark
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matching is a subjective determination and a firearms expert may only testify that a
match between a shell casing and a gun is more likely than not. See United States v.
Glynn, 578 F. Supp. 2d 567, 570-75 (S.D.N.Y. 2008); United States v. Monteiro, 407 F.
Supp. 2d 351, 356-75 (D. Mass. 2006); United States v. Green, 405 F. Supp. 2d 104, 108-
24 (D. Mass. 2005). Based on these cases, Summers argues that trial counsel should have
challenged Wright's testimony by filing a pretrial motion in limine, objecting at trial, and
cross-examining Wright about the subjectivity of his analysis.

While the federal cases that he mentions do limit the admissibility of an expert's
toolmark analysis testimony, Summers does not point to any Kansas authority on the
issue. In fact, no Kansas court has cited those cases. More importantly, there appears to
be contrary authority from the Kansas Supreme Court. In State v. Churchill, 231 Kan.
408, 414, 646 P.2d 1049 (1982), the expert testified "that toolmark examinations in
human tissue were conducted by the same procedures and governed by the same
principles applicable generally in toolmark examinations," and our Supreme Court upheld
as admissible testimony regarding toolmark evidence which involved the matching of a
knife to a wound. Other Kansas cases have accepted without comment evidence that shell
casings were matched to a particular gun using toolmark analysis. See, e.g., State v.
Netherland, 305 Kan. 167, 174, 379 P.3d 1117 (2016); State v. Kidd, 293 Kan. 591, 600,
265 P.3d 1165 (2011); State v. Moore, 287 Kan. 121, 128, 194 P.3d 18 (2008); State v.
Scott-Herring, 284 Kan. 172, 176, 159 P.3d 1028 (2007); State v. Martis, 277 Kan. 267,
272, 83 P.3d 1216 (2004); State v. Davis, 275 Kan. 107, 114, 61 P.3d 701 (2003); State v.
Jones, 273 Kan. 756, 761, 47 P.3d 783, cert. denied 537 US. 980 (2002); State v.
Manard, 267 Kan. 20, 24, 978 P.2d 253 (1999).

At the evidentiary hearing, trial counsel testified that he did not file a motion in
limine because he did not think Kansas law supported one. "When defense counsel has no
sound basis to believe that a pretrial motion would have merit and has no reasonable
evidence or argument upon which to base such a motion the failure to make it cannot be
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equated with ineffective assistance of counsel." Chamberlain, 236 Kan. 650, Syl. ¶ 5.
Here, even though a few federal cases may have provided a reasonable argument,
contrary authority in Kansas caselaw means that trial counsel's decision not to file a
motion was also reasonable.

Trial counsel also challenged Wright's testimony in other ways. He questioned
Wright about whether being outside and possibly exposed to a lawnmower could have
affected the markings on the shell casing Summers' former neighbor found. Most
importantly, trial counsel had Wright admit that he could not say with any degree of
scientific certainty that the projectiles found in Velasquez' body were fired from a
particular gun because they were not submitted to him for testing. Trial counsel also
elicited testimony from Wright that the presence of other guns, including a revolver,
could not be ruled out because spent shell casings are retained in a revolver and would
not have been left at the scene unless the shooter purposely removed the shell casings
from the revolver's cylinder. Accordingly, we conclude trial counsel's cross-examination
of Wright thus fell "within the wide range of reasonable professional assistance." See
Bledsoe, 283 Kan. at 90.

However, even if we presume trial counsel should have done more to challenge
Wright's testimony, he gave valid reasons for not doing so. Summers presented an alibi
defense at trial and said his gun had been stolen, so trial counsel did not think it was
important to show whether the shell casings matched the gun; instead, he thought it
would be better to simply cross-examine Wright about the possibility of multiple guns.
Trial counsel knew that Wright was a good witness, and he was concerned that
challenging Wright too much would make things worse. Because the decisions to present
an alibi defense and how to cross-examine Wright were strategic, trial counsel's decision
not to challenge Wright's testimony any more than he did was reasonable. See Thompson,
293 Kan. at 716; Strickland, 466 U.S. at 690-91.

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B. Detectives' testimony

Summers' second claim is that trial counsel allowed the State to elicit improper
testimony during its direct examination of the police detectives. According to Summers,
the detectives made impermissible references to his constitutional right to counsel when
the detectives testified that Summers' wife told them to direct any more questions to their
attorney. Summers argues that trial counsel should have objected to the detectives'
testimony, relying on State v. Dixon, 279 Kan. 563, 576-79, 591, 112 P.3d 883 (2005),
where the Kansas Supreme Court held that prosecutors may not elicit any references to a
defendant seeking the assistance of counsel, which may imply the defendant's guilt.

We reject Summers' argument because the testimony was permissible. First, one
detective testified that Summers' wife said to contact her attorney, in no way referencing
that Summers had sought the assistance of counsel. Second, this case is distinguishable
from Dixon. There, the prosecution directly questioned four witnesses about the
defendant speaking and meeting with his attorney. The testimony was extensive and
clearly intended to imply that the defendant was guilty. Here, the second detective's
reference to "their attorney" only implies that the attorney might have also been
Summers'. The testimony was brief and seemingly intended to show that detectives were
unable to interview Summers' wife a second time. Because the State did not elicit any
direct references to Summers seeking the assistance of counsel, trial counsel's decision
not to object was reasonable.

Trial counsel also explained why he did not object. First, according to counsel,
because in his mind the testimony was directed at Summers' wife and her actions and not
his client, he was not even sure he noticed the use of the word "their." Second, counsel
stated he knew that objecting would draw attention to the issue and he did not want the
jury to think he was concerned about it. Since it was strategic, trial counsel's decision not
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to object was reasonable. See Thompson, 293 Kan. at 716; Strickland, 466 U.S. at 690-
91.

C. Prejudice

Summers also claims that trial counsel's failure to limit or challenge Wright's
testimony and to object to the detectives' testimony prejudiced him. He essentially argues
that the State's evidence was circumstantial and underwhelming, pointing to weaknesses
in the testimony of several witnesses. But because trial counsel's performance was not
deficient, we need not even consider whether trial counsel's performance affected the
outcome of Summers' trial. See Strickland, 466 U.S. at 697.

Even if we assume trial counsel's performance was deficient, Summers was not
prejudiced. First, trial counsel's alleged failure to limit and challenge Wright's testimony
did not affect the trial's outcome. The State did not conclusively tie Summers to the shell
casing that his former neighbors found, and it did not conclusively tie the shell casings
found at the scene to the projectiles found in Velasquez' body. Had Wright been forced to
testify that the shell casings were more likely than not fired from the same gun, his
testimony would have done little to weaken the already circumstantial evidence. It is
doubtful that limiting Wright's testimony would have made any difference in the minds of
the jurors as Summers has not shown that the jurors would have paid any attention to the
expert's use of the qualifying phrase "more likely than not."

Second, trial counsel's decision not to object to the detectives' testimony also did
not affect the jury's verdict. The reference to "their attorney," which only implied that
Summers may have had a lawyer, was brief. Summers, in his case-in-chief, also elicited
similar testimony from his wife, who referenced "the attorney," which could also imply
that the lawyer represented Summers. While our court has held that references to a
defendant seeking the assistance of counsel cannot be deemed harmless error, Quinton v.
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State, No. 112,439, 2015 WL 7693691, at *8 (Kan. App. 2015) (unpublished opinion),
petition for rev. filed December 22, 2015, our Supreme Court, however, has still
considered harmlessness when reviewing the issue in the context of prosecutorial error
claims. See Dixon, 279 Kan. at 591-92. The harmlessness standard used in prosecutorial
error cases has the same or a higher degree of certainty than the prejudice standard used
in ineffective assistance of counsel cases. See State v. Ward, 292 Kan. 541, 562-66, 256
P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012); Bledsoe, 283 Kan. at 90. It follows
that we may still conclude that trial counsel's decision not to object to the detectives'
testimony did not prejudice Summers.

Finally, when considering all of the evidence, there is no reasonable probability
that, but for trial counsel's conduct, the outcome of Summers' trial would have been
different. Velasquez told his wife and another witness that "Homi" was coming over. A
phone number in Velasquez' phone belonged to Summers. There were 12 calls between
Velasquez and Summers on the day of the shooting. Summers initially denied knowing
Velasquez. Velasquez' wife identified Summers as "Homi." A witness saw Summers at
Velasquez' house before the shooting. Summers owned a .40 caliber handgun, which he
reported stolen on the morning of the shooting. The tool marks on the .40 caliber shell
casings found at the scene matched the tool marks on the shell casing that Summers'
former neighbor found. While the evidence may be circumstantial, it is sufficient to
uphold Summers' conviction. See Darrow, 304 Kan. at 716.

Therefore, the district court did not err in denying Summers' K.S.A. 60-1507
motion.

Affirmed.