Clary v. State

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NOT DESIGNATED FOR PUBLICATION

No. 116,658

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSHUA MITCHELL CLARY,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Crawford District Court; KURTIS I. LOY, judge. Opinion filed November 9, 2017.
Affirmed.

Kyle M. Fleming, of Pittsburg, for appellant.

Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., STANDRIDGE, J., and WALKER, S.J.

PER CURIAM: Joshua Mitchell Clary appeals the denial of his K.S.A. 60-1507
motion alleging ineffective assistance of counsel. Finding no error requiring reversal, we
affirm.

In December 2009, Clary was convicted by a jury of rape, aggravated kidnapping,
and criminal threat. His convictions were affirmed on appeal by this court, and on
February 19, 2013, the Kansas Supreme Court declined to review the matter. State v.
Clary, 47 Kan. App. 2d 38, 270 P.3d 1206 (2012), rev. denied 296 Kan. 1131 (2013).

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Clary filed a pro se 60-1507 motion on November 12, 2013, and an amended
motion on October 7, 2014. In the motion, as amended, Clary claimed his trial counsel
was ineffective for (1) failing to strike a partially deaf juror from the impaneled jury, (2)
failing to subpoena numerous witnesses to trial, (3) failing to subpoena and secure text
messages that would have proven Clary was innocent, and (4) failing to disclose and
point out to the jury that the State could not produce blood or DNA evidence on the
alleged weapon used by Clary. Clary also claimed appellate counsel was ineffective for
failing to raise the issue on appeal that the trial court was slow in reappointing Clary
adequate counsel.

On April 21, 2015, the trial court held an evidentiary hearing on Clary's 60-1507
motion at which Clary, his trial counsel (Geoff Clark), and his appellate counsel
(Michelle Davis) testified. Afterwards, the parties filed proposed findings of facts. The
court adopted the State's proposed findings of fact and found that Clary's representation
did not amount to ineffective assistance of counsel. The court dismissed the K.S.A. 60-
1507 motion. Clary appeals, raising only the first three issues from his K.S.A. 60-1507
motion.

Standard of review and legal principles

After a full evidentiary hearing on a K.S.A. 2016 Supp. 60-1507 motion, the trial
court must issue findings of fact and conclusions of law concerning all issues presented.
Supreme Court Rule 183(j) (2017 Kan. S. Ct. R. 222). An appellate court reviews the
court's findings of fact to determine whether they are supported by substantial competent
evidence and are sufficient to support the court's conclusions of law. Appellate 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).

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To be entitled to relief under K.S.A. 60-1507, the movant must establish by a
preponderance of the evidence either: (1) "the judgment was rendered without
jurisdiction"; (2) "the sentence imposed was not authorized by law or is otherwise open to
collateral attack"; or (3) "there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack." K.S.A. 2016 Supp. 60-1507(b) (grounds for relief); Supreme Court Rule 183(g)
(preponderance burden).

A claim alleging ineffective assistance of counsel presents mixed questions of fact
and law. When the trial court conducts a full evidentiary hearing on such claims, the
appellate courts determine whether the trial court's findings are supported by substantial
competent evidence and determine whether the factual findings support the court's legal
conclusions; the appellate courts apply a de novo standard to the trial court's conclusions
of law. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that the performance of defense counsel was deficient under the totality
of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury
would have reached a different result absent the deficient performance. Sola-Morales v.
State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or 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 deficient performance, the outcome of the proceeding
would have been different, with a reasonable probability meaning a probability sufficient
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to undermine confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d
828 (2015).

If counsel has made a strategic decision after making a thorough investigation of
the law and the facts relevant to the realistically available options, then counsel's decision
is virtually unchallengeable. Strategic decisions made after a less than comprehensive
investigation are reasonable exactly to the extent a reasonable professional judgment
supports the limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292
P.3d 318 (2013) (citing Strickland, 466 U.S. at 690-91).

We note that the record on appeal does not contain the trial transcript, leaving this
court with only a partial picture of the evidence that was before the jury. The burden is on
the party making a claim to designate facts in the record to support that claim; without
such a record, the claim of error fails. Friedman v. Kansas State Bd. of Healing Arts, 296
Kan. 636, 644-45, 294 P.3d 287 (2013). This court has only the testimony from the
K.S.A. 60-1507 hearing and the facts as laid out in Clary's direct appeal.

The partially deaf juror

Clary contends that his trial counsel, Clark, allowed a juror with some hearing loss
to remain on the jury without a device to assist the juror hear the testimony. Clary
contends this fell below the standard of reasonable assistance of counsel.

At the 60-1507 motion hearing, Clary testified that during jury selection a juror
told the judge he was deaf in his right ear. Clary testified that the judge told the juror that
he was supposed to be given an amplifier but that amplifiers did not do any good because
they echo. The juror was impaneled. Clary testified that, during the trial, the juror did not
give any indication that he could not hear the testimony. The juror never stopped the trial
and told the judge he needed assistance in hearing. But Clary testified that at one point
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the juror looked "disinterested, like he just gave up trying to listen at all." The judge and
defense counsel told the assistant county attorney to "speak up" repeatedly during the
trial but they never reasked or reanswered the questions. The victim, E.H., was also told
to "speak up" during the trial. Clary testified he never discussed the issue with his trial
attorney. Clary admitted that he was only speculating that the juror could not hear the
testimony.

Clark testified that he could not remember whether he tried to dismiss the juror for
cause. From what Clark remembered, the judge was not going to dismiss the juror for
cause, and Clark thought the juror was "the better of the other ones."

The trial court at the hearing on the 60-1507 motion found that the juror never
complained about being unable to hear during the trial and that Clary was speculating as
to whether the juror was unable to hear.

To reiterate, our ability to review this issue is greatly hampered by the absence of
the trial transcript in the record. Thus we are only able to assess the validity of Clary's
claims from an examination of the evidence before the court hearing the 60-1507 motion
itself. Based on this limited evidence, we hold the trial court's findings were supported by
substantial evidence.

With no indication that the juror in question was actually unable to hear the
testimony, Clary has not met his burden to show either that his trial attorney's
performance was deficient or that the juror's presence on the jury prejudiced the outcome.
Mere speculation that the juror had a difficult time hearing at trial is not sufficient to
show ineffective assistance of counsel.



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Counsel's failure to subpoena witnesses

Clary next contends that he gave his trial attorney the names of key persons who
witnessed some of the events in question and whose testimony was needed to challenge
the victim's credibility. He contends that trial counsel's failure to subpoena these
witnesses fell below the standard of reasonableness for a defense attorney. Clary argues
he likely would have been acquitted had these witnesses testified.

At the 60-1507 motion hearing, Clary testified that trial counsel failed to subpoena
a woman named Rita; Tyler Mattingly, a coworker; and Michelle, Mattingly's girlfriend.
Clary did not remember Rita's last name. Rita and Michelle were with Clary the morning
after the crimes allegedly occurred, which was when Clary and victim E.H. exchanged
text messages. Clary claims Rita and Michelle could have testified to the text messages
they exchanged. Mattingly could have testified that E.H. was not telling the truth when
E.H. testified that Mattingly tried to warn her about what Clary was going to do.

Clary testified he told trial counsel that he wanted these witnesses called or
subpoenaed. Within a month, trial counsel told Clary that he could not find Mattingly or
Michelle. Mattingly and Michelle had been residing at a homeless shelter, but Clary did
not know for how long.

Clary also complained that Michael Maike, who was subpoenaed, did not show up
to testify. Maike was E.H.'s ex-husband or ex-boyfriend. Clary believed Maike could
have testified that some of the bruises on E.H. were the result of a battery involving
Maike. Clary admitted that, at trial, Clark cross-examined E.H. regarding the domestic
battery involving Maike.

Defense attorney Clark testified that, from what he could recall, he did not know
the full name of Mattingly and did not have an address for him. Clark was sure he had
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asked his private investigator, Jack Kelly, to find Mattingly, but he could not recall. Clark
did not think that they were able to find Mattingly or Michelle. Clark recalled going to
the homeless shelter with Kelly to find certain people, but Clark was not 100% sure that
his recollection was about the Clary case. Clark did recall going to Pro Cut Lawn Care,
Clary and Mattingly's employer, and handing subpoenas to a couple of people there. But
Clark did not think Mattingly was still working at Pro Cut by that time. Clark would have
asked about Mattingly when he went to Pro Cut. Clark remembered being frustrated not
only in locating Mattingly and Michelle, but in even trying to figure out who they were.
Clark testified he had done everything that he could to locate the witnesses.

With regard to Rita, Clark testified that Kelly looked for her. Clark did not recall
whether Kelly could not find her or whether the testimony would not have been favorable
to Clary. Clark had notes from Kelly stating that he would be contacting Rita. With
regard to Maike's failure to appear, Clark did not raise the issue with the court because he
did not believe Maike's testimony would have been helpful to the theme of the defense,
based on Kelly's investigation.

The trial court did not make independent findings based upon the testimony but
simply adopted the State's proposed findings of fact as its own. Among the adopted
findings as to adequacy of trial counsel were the following: Clark hired a private
investigator in an attempt to locate Mattingly and Michelle and exhausted all leads to find
them; Clark was frustrated by his attempts to locate and ascertain who Mattingly and
Michelle were prior to trial; Clark had notes indicating his private investigator attempted
to locate Rita; Clark would have called Rita to testify if he had located her and received
favorable information; Clark did locate Maike but did not call him as a witness because
his testimony would not have been beneficial to Clary; and, though Maike did not testify,
evidence was elicited that E.H. sustained certain injuries from a prior battery incident.

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One of the disadvantages of wholesale adoption of a litigant's proposed findings
by a trial court is that it oversimplifies the nuances of actual evidence in the record.
Parties urging a court to make particular findings are naturally inclined to supply
conclusions based upon parts of the record favorable to them, and omit or pass over less
favorable portions. When trial courts rely exclusively on proposed findings, it makes our
task on appeal much more difficult when, as here, the findings and the evidence have
substantial inconsistencies.

This is amply demonstrated in this case by the trial court's finding that defense
attorney Clark "exhausted all leads" in finding Tyler Mattingly, Rita (later identified as
Rita Larkum), and Tyler's girlfriend Michelle. To say the least, this appears to be a
considerable overstatement of the evidence as to the thoroughness of Clark's services for
Clary.

Although Clark testified that he engaged investigator Kelly at an early stage of the
case, and his billing records indicated he had sent Kelly a memorandum about the case,
Clark could not locate a copy of the memo in his file. When asked about trying to find
Tyler, Clark said, "I didn't—can't say for 100 percent sure but it seemed to me that we
couldn't even—we didn't know his full name and we didn't have an address for him."
Asked whether he had requested investigator Kelly to look for Tyler, Clark testified, "I'm
sure I asked him to try to find the person but I don't recall."

As to potential witness Rita Larkum, Clark testified he was sure the investigator
looked for her but was uncertain as to whether she could not be found or whether her
testimony would not be favorable to Clary. On this rather basic point Clark stated, "I
simply don't recall."

As noted above, Clark's memory also failed him when he was questioned about
Clary's testimony that Tyler and his girlfriend Michelle were living in the local homeless
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shelter. Asked whether he actually went to the shelter to check on Tyler and Michelle,
Clark testified, "I don't know. I have a recollection—I've been to that homeless shelter on
several different cases because witnesses seemed to be there or in the past were there. I
can't remember in this case whether I did or not." Clark did recall driving with
Investigator Kelly to the homeless shelter but testified that "I can't say 100 percent sure
that that was this case or another case."

Clark's testimony at the hearing concerning his strategic decision not to seek
enforcement of the subpoena for Maike was also less than totally clear. When asked why
he did not raise Maike's failure to appear directly with the trial court, Clark responded,
"Well, frankly, Mr. Maike's testimony I don't know would have been—would have been
helpful to fit in with our theme of the case." Clark said he based this conclusion on
Investigator Kelly's interview with Maike. In response to an inquiry as to whether he had
discussed Maike's testimony directly with Clary, Clark said, "I think I did. Once again, it
is five years, I don't have 100 percent recollection." Clark emphasized that he had spent a
lot of time talking to Clary but ended by saying, "And so in answer to your question, I
believe I did. Do I have a specific recollection of that time, I don't. It kind of blurs into
we had a lot of conversation about this case and I thought we had talked a lot about all
the witnesses, all the potential witnesses and what we should be doing, what our theme of
this case was, and how to advance that theme and hopefully get a not guilty verdict."

Clark's ultimate conclusion was that Maike's failure to appear did not prejudice
Clary's case in any way. His lack of recollection as to the specific reasons why he did not
follow up on the nonappearance of Maike is counterbalanced to a great extent by Clark's
contention that he was able to elicit the evidence Clary believed Maike could have
provided through cross-examination of victim E.H.

The trial court's overbroad and unambiguous endorsement of Clark's conduct as
defense counsel makes it more difficult for us to determine if substantial competent
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evidence supports its conclusion. Hence it makes that determination a close call in this
case. Applying the standard of Cheatham, 297 Kan. at 437, and since the proceedings
from Clary's trial itself are unavailable in our record, we can hardly conclude that Clark
made a "'thorough investigation of law and facts relevant to plausible options'" so as to
render his decisions "'virtually unchallengeable.'" On the other hand, even applying a less
than comprehensive standard to Clark's activities on behalf of Clary, we believe there is
sufficient evidence of activity by Clark to trigger our duty to strongly presume that
counsel's conduct fell within the broad range of reasonable professional assistance. See
Kelly, 298 Kan. at 970; Cheatham, 297 Kan. at 437.

But even if we were to conclude from the limited record before us that Clark's
representation of Clary was lacking, the second prong of the test under Sola-Morales and
Strickland requires Clary to demonstrate that there is a reasonable probability the jury
would have reached a different result absent the deficient performance. Once again, we
are handicapped in fully assessing this claim by the absence of the trial record. But from
our examining of the facts as set out in the published opinion of Clary's direct appeal, it
appears the case against Clary was strong and the jury's guilty verdicts were well
supported. Clary has failed to convince us that the outcome would be different if Clark
had somehow been able to produce the three witnesses. Thus, we are unable to conclude
that any deficiencies by Clark resulted in prejudice to Clary.

The text messages

Clary contends that his trial attorney failed to obtain certain text messages that
would have exonerated him. He argues the text messages showed that the alleged victim
fabricated her story to frame him.

At the 60-1507 motion hearing, Clary testified there were text messages on
Mattingly's phone from E.H. the morning after the crimes allegedly occurred. E.H. had
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been sending text messages to Mattingly that morning telling him "about what
happened." Clary explained that what happened was that he and E.H. had split up. Clary
took Mattingly's phone. Clary sent a text message to E.H. explaining that "while I still
love you, I can't be with you." E.H. then called him "every name in the book." E.H. sent a
text message to Clary that said: "I'm going to fuck you over some how, some way."
Clary explained that he believed E.H. was referring to the allegations she made against
him. He believed if the jurors had seen the text messages, they would have exonerated
him.

Clary testified he told Detective John Austin about the text messages the night he
was arrested. But the detective did not follow up except to ask E.H. about the text
messages. E.H. said the text messages had nothing to do with the case. Clary testified that
he asked Clark, his trial attorney, to subpoena the text messages. Clary testified that Clark
later told him that Clark tried to get the text messages but that "they told him that the guy
that does the text messages does not work there anymore" and that it was Clark's
understanding that "they never hold on to any text messages for any amount of time."
Clary admitted that Clark cross-examined E.H. regarding the text messages and pointed
out numerous inconsistencies in E.H.'s testimony.

Clark testified that it was his understanding that phone companies do not store text
messages longer than four days. His knowledge was a result of his membership to the
national and Kansas associations of criminal defense lawyers and being on their listserv.
Clark did not subpoena the phone provider. Clark also did not subpoena E.H.'s cell phone
to get the text messages because he believed she would have deleted them if they helped
the defense. Clark did issue business records subpoenas to T-Mobile and AT&T. He
could not remember but thought the subpoenas were for E.H.'s and her mom's phone
records. He recalled using the records at trial.

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The trial court found: Clark, upon reaching out to the national association of
criminal defense lawyers on a listserv, determined that the content of the text messages
would not have been available from the cell phone providers because of the time lapse
between when the messages were sent and when he was appointed to represent Clark;
Clark did subpoena and review T-Mobile and AT&T phone records as they related to the
case; Clark was able to cross-examine E.H. about the text messages; and Clark was able
to point out many inconsistencies in E.H.'s version of events and discredit her testimony
during the trial.

The trial court's findings are supported by substantial competent evidence. Clary
has not shown that Clark's performance was deficient. Clark did research whether he
would have been able to get the text messages from the phone provider but determined he
would not be able to get them. Clark cross-examined E.H. about the text messages and
pointed out inconsistencies in her testimony.

Moreover, Clary has not shown prejudice. Again, it is not possible for us to assess
whether the text messages, assuming they existed, would have changed the outcome. We
have not had the opportunity to read Clary's cross-examination of E.H. or assess the other
evidence of Clary's guilt presented at trial. The facts laid out in Clary's direct appeal paint
an overwhelming picture of Clary's guilt. E.H.'s testimony at trial was corroborated by
her neighbor who testified that she could hear screams from E.H.'s apartment and heard
Clary tell E.H. that he was "'going to kill her.'" Clary, 47 Kan. App. 2d at 39-40. Given
the facts as we understand them, we cannot say that admission of the text messages
would have affected the outcome of Clary's trial.

Affirmed.