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No. 96,869
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DAVID J. SILVERS,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1. When an evidentiary hearing has been conducted in the district court, as here, our standard
of review from a denial of a K.S.A. 60-1507 motion is findings of fact and conclusions of
law. Under this standard, an appellate court must determine whether the district court's
factual findings are supported by substantial competent evidence and whether those
findings are sufficient to support the district court's conclusions of law. Ultimately, the
district court's conclusions of law and its decision to grant or deny the 60-1507 motion are
reviewed using a de novo standard.
2. Before defense counsel's assistance is determined to be so defective as to require reversal
of a conviction, a 1507 movant must establish first that trial counsel's performance was
deficient. In other words, trial counsel made errors so serious that his or her performance
was less than that guaranteed by the Sixth Amendment to the United States Constitution.
Second, movant must establish trial counsel's deficient performance prejudiced the
defense. This requires a showing trial counsel's errors were so serious as to deprive
movant of a fair trial.
3. Clearly, criminal defendants are not entitled to have the jury instructed on jury
nullification, but the jurors in a criminal case have the clear ability to disregard both the
rules of law and the evidence in order to acquit a defendant.
4. When defense attorneys have made an educated, well-considered decision to rely on a jury
nullification strategy, appellate courts have generally concluded such attorneys afforded
effective assistance of counsel. But, when jury nullification strategy is presented
haphazardly or in preference for other defenses with a likelihood of success, appellate
courts have concluded such attorneys were ineffective.
Appeal from Sedgwick District Court. DAVID W. KENNEDY, judge. Opinion filed
January 11, 2008.
Affirmed.
Michael S. Holland II, of Law Offices of Michael S. Holland, of Russell, for
appellant.
Kristi L. Barton, assistant district attorney, Nola Tedesco Foulston,
district attorney, and Paul J.
Morrison, attorney general, for appellee.
Before RULON, C.J., GREENE, J., and BRAZIL, S.J.
RULON, C.J.: Movant David J. Silvers appeals the denial of his K.S.A. 60-1507 motion,
following an evidentiary hearing in the district court. We affirm.
The issue on appeal is whether there was substantial competent evidence that movant's
trial counsel was competent.
Underlying Facts
On April 27, 2003, S.M., the 13-year-old, female victim, was spending the night with her
friend Amber at Amber's aunt's apartment. Shortly after the victim and Amber arrived at the
apartment, James Taylor arrived with his friend, movant. Eventually, the victim was left alone
with the two men.
The victim testified she was given alcohol, marijuana, and an unidentifiable pill. The victim
fell asleep and was on the floor naked when she awoke. One of the men was penetrating the
victim vaginally, and the other was about to place his penis in the victim's mouth. The victim
could not tell which man was on top of her, but she immediately told the man on top of her to get
off and found her clothes.
After getting dressed, the victim called her sister to pick her up. The victim was taken to
the hospital where a sexual assault examination was performed. The examination revealed (1)
tearing and redness in the victim's vagina consistent with injury due to the force of insertion; (2)
tearing and redness around the victim's rectum; and (3) a plastic dome-shaped object inside the
victim's vagina which one of the State's DNA analysts later testified had possibly been attached to
the tip of a condom. Semen attributable to movant was found on a rectal swab and in the middle
and rear sections of the victim's underwear. No semen was detected on a vaginal swab. One sperm
cell was found on the dome-shaped object, but testing was unable to link the sample to either
movant or Taylor.
Movant was charged with rape of a child under 14 years of age and aggravated criminal
sodomy of a child under 14 years of age.
Prior to trial, movant's defense attorney, Pamela McLemore, moved to admit evidence of
the victim's prior sexual relationships, contending such evidence was relevant because movant
would be pursuing a misrepresentation of age/consent defense based on the victim's statement she
was "old enough." The district court denied the motion, finding movant was free to present
evidence of the victim's alleged misrepresentation of her age on the night at issue, but the court
would not allow argument that consent or misrepresentation was a defense to the charges.
During opening statements defense counsel refuted the rape evidence, but admitted
movant had some sort of consensual sexual activity with the victim. Defense counsel stated the
victim said she was "old enough," "looked old," and "indicated [the victim] wanted to mess
around with these guys, so they did."
At trial the State called movant's friend, Jeremy Twist, who testified he overheard movant
admit to having sexual contact with the victim. Equally important, movant admitted during direct
examination he had anal sex with the victim, but claimed such conduct was consensual.
Additionally, movant testified he believed the victim was older because of her appearance and
because when he asked the victim how old she was, the victim said, "Old enough."
During closing argument, defense counsel stressed inconsistencies and insufficiencies in
the evidence supporting the rape charge and further argued movant had been honest about his
sexual encounter with the victim.
Ultimately, movant was found guilty of aggravated criminal sodomy, but acquitted of
rape. On direct appeal, movant argued insufficiency of the evidence, but his conviction was
affirmed.
Movant then filed the instant 60-1507 motion, contending trial counsel's jury nullification
strategy essentially resulted in counsel entering a guilty plea without movant's consent. Jury
nullification is defined as:
"A jury's knowing and deliberate rejection of the evidence or refusal to apply the
law either
because the jury wants to send a message about some social issue that is larger than the case itself
or
because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness."
Black's
Law Dictionary 875 (8th ed. 2004).
An evidentiary hearing was held with movant present, but movant did not present
evidence, instead relying on his motion and the record. The State called movant's trial counsel to
testify. Counsel testified she did not remember conversations she had with movant prior to trial,
but said, "Well, the problem with the case is that we didn't have a legal defense. I
was–honestly, I
was trying to go for jury nullification, 'cause it just seemed so injust [sic] at the way
the law's
written." Counsel testified she did not remember if she had discussed her strategy and the
consequences with movant; however, counsel testified her usual practice was to "tell . . . my client
everything about the case, and we go over the facts and talk about the pros and cons of different
strategies." Counsel further testified she "probably did" go over her strategy with movant and she
could not remember ever presenting a defense without clearing the defense strategy with a
defendant.
The district court ultimately found movant's trial counsel "did everything she could, short
of violating her ethical oath to testify truthfully, to provide assistance to her former client."
Trial Counsel's Representation
Where there has been a full evidentiary hearing before the district court, as here,
"the appropriate standard of review is findings of fact and conclusions of law. Under this
standard, an appellate court must determine whether the district court's factual findings are
supported by substantial competent evidence and whether those findings are sufficient to support
the district court's conclusions of law. [Citation omitted.] Ultimately, the district court's
conclusions of law and its decision to grant or deny the 60-1507 motion are reviewed using a de
novo standard. [Citation omitted.]" Bellamy v. State, 285 Kan. ___, ___ P.3d ___
(2007).
Before defense counsel's assistance is determined to be so defective as to require reversal
of a conviction, a 1507 movant must establish first that trial counsel's performance was deficient.
In other words, trial counsel made errors so serious that his or her performance was less than
guaranteed by the Sixth Amendment to the United States Constitution. Second, movant must
establish trial counsel's deficient performance prejudiced the defense. This requires a showing trial
counsel's errors were so serious as to deprive movant of a fair trial. State v. Mathis,
281 Kan. 99,
109-10, 130 P.3d 14 (2006).
"Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel
must be
highly deferential. There is a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. [Citation omitted.] To show prejudice, the defendant
must show a reasonable probability that but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." State v. Betts, 272 Kan. 369, 387-88, 33 P.3d
575 (2001).
Although movant now argues several instances of trial counsel's perceived ineffectiveness,
his primary claim is jury nullification is not a valid defense strategy and trial counsel should have
instead required the State to establish movant's guilt beyond a reasonable doubt.
Clearly, criminal defendants are not entitled to have the jury instructed on jury
nullification, but the jurors in a criminal case have the clear ability to disregard both the rules of
law and the evidence in order to acquit a defendant. State v. McClanahan, 212 Kan.
208, 215-17,
510 P.2d 153 (1973).
Our review of cases from other jurisdictions indicate jury nullification is an acceptable
defense strategy, but only when there is strong evidence of guilt and other options are highly
unlikely to succeed.
For example, in People v. Ganus, 148 Ill. 2d 466, 594 N.E.2d 211 (1992), the
defendant
confessed in detail to a prison murder. Despite the fact compulsion is not a defense to first-degree
murder, the defendant's attorney introduced evidence the defendant was in a gang and the murder
had been committed under gang orders. 148 Ill. 2d at 471-72. The Ganus court held:
"What the instant case presents is a situation where the defendant literally had no defense.
Evidence of his guilt was overwhelming. His counsel conceived a compulsion defense which,
though not a legal defense, could or might have persuaded a jury not to convict. Jury nullification
is always a possibility. It is not inconceivable that a compulsion defense might have evoked
empathy, compassion or understanding and sympathy in the minds of the jurors. . . . A weak or
insufficient defense does not indicate ineffectiveness of counsel in a case where a defendant has
no defense. In this case it would appear that defense counsel used his imagination and
resourcefulness to come up with something where he had nothing to go on." 148 Ill. 2d at 473-74.
In In re Alcox, 137 Cal. App. 4th 657, 40 Cal. Rptr. 3d 491 (2006), the
defendant was
charged with felony murder despite the fact he ran away from the hotel defendant and his
co-conspirators were attempting to burglarize before the murder took place. The defendant had
confessed to the crime–both to police and in front of a third party–and had made
incriminating
jailhouse statements. 137 Cal. App. 4th at 661. Defendant's attorney essentially admitted the
defendant was present and involved in the crime, but unsuccessfully urged the jury to convict the
defendant of attempted burglary rather than murder based on the defendant's disengagement
before the hotel clerk was shot, and his honesty and cooperation with police. 137 Cal. App. 4th at
667-68. The Alcox court held:
"It is not ineffective assistance of counsel for counsel to admit obvious weaknesses
in the
defense case. [Citation omitted.] '[W]here the evidence of guilt is quite strong, "it is entirely
understandable that trial counsel, given the weight of incriminating evidence, made no sweeping
declarations of his client's innocence but instead adopted a more realistic approach, namely, that
... defendant ... may have committed [some of the charged crimes]...."' [Citation omitted.]
"[G]ood trial tactics [may] demand complete candor" with the jury. [Citation omitted.]'
"[There] was strong evidence of guilt. [The defense attorney] attempted to make the best
of a bad
situation, given his very limited options. [Citation omitted.] It was not ineffective assistance of
counsel to concede some measure of culpability and offer the jury some other choice in
defendant's favor. [Citations omitted.]" 137 Cal. App. 4th at 668-69.
When defense attorneys have made an educated, well-considered decision to rely on a jury
nullification strategy, appellate courts have generally concluded such attorneys afforded effective
assistance of counsel. But, when jury nullification strategy is presented haphazardly or in
preference for other defenses with a likelihood of success, appellate courts have concluded such
attorneys were ineffective.
Here, movant arguably could have been acquitted of rape without admitting guilt to
aggravated criminal sodomy, but an acquittal was not a certainty. Although movant now argues
trial counsel should have exploited the fact the victim did not know who was on top of her, the
fact remains the victim testified "someone" was on top of her. The object found in the victim's
vagina and her vaginal injuries corroborated the victim's testimony, so the only real question was
whether the "someone" was movant or Taylor.
The evidence supporting movant's conviction for aggravated criminal sodomy was
overwhelming. Independent of trial counsel's opening and closing statements and movant's
testimony, the evidence established: (1) the victim's rectal injuries, (2) movant's semen in the
victim's underwear, and (3) movant's semen inside the victim's rectum. We are convinced the jury
could not possibly have acquitted movant of this charge.
Essentially, trial counsel conceded movant's guilt on the aggravated criminal sodomy
charge in order to preserve movant's honesty so the jury might believe movant's version of the
facts on the rape charge, or maybe even feel sympathy for movant and ignore the district court's
instructions and acquit on the aggravated criminal sodomy charge as well. To a certain extent trial
counsel's strategy was successful. Far from showing incompetency, trial counsel's representation
was that of an effective attorney.
Importantly, movant has not established he did not consent to trial counsel's strategy. At
the evidentiary hearing, movant chose to rest on the record and his motion, neither of which state
movant did not understand or agree with trial counsel's strategy. Trial counsel testified her usual
practice was to discuss defense strategy with her clients, and indeed counsel could not remember
an instance where she had not done so.
We firmly conclude the district court had substantial competent evidence to find movant's
trial counsel was effective.
Affirmed.
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