Pollard v. State ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,920
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
COREY L. POLLARD JR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed August 19,
2022. Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE and COBLE, JJ.
PER CURIAM: A jury found Corey L. Pollard guilty of first-degree murder and
aggravated robbery. On appeal, our Supreme Court affirmed his convictions. Pollard later
filed a pro se K.S.A. 60-1507 motion alleging several grounds for relief. The district
court appointed Pollard counsel and held a preliminary hearing to determine whether any
of his claims warranted an evidentiary hearing. After dismissing most of the claims, the
district court determined that a few issues warranted such a hearing, including claims for
ineffective assistance of trial counsel. After hearing testimony from Pollard and his trial
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counsel, the district court determined that none of Pollard's claims warranted relief.
Pollard now appeals. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Our Supreme Court fully recounted the facts of Pollard's original criminal case in
State v. Pollard, 306 Kan. 823, 397 P.3d 1167 (2017). In short, Pollard and three other
men—Dallas Guy, Orville Smith, and Dijon Thomas—met with Paul Khmabounheuang
under the pretense of buying marijuana, while their actual plan was to rob
Khmabounheuang. After demanding Khmabounheuang give them all his drugs, a struggle
over a gun ensued, which left two of the would-be robbers injured and Khmabounheuang
dead. Following trial, the jury convicted Pollard of both first-degree murder and
aggravated robbery, and the district court sentenced him to life in prison for the first-
degree murder conviction and a consecutive 100 months for the aggravated robbery
conviction. The Supreme Court upheld his convictions. 306 Kan. 823.
Pollard filed a timely K.S.A. 60-1507 motion. The motion alleged several grounds
for relief, only three of which he brings forward on appeal. All involve claims that his
trial counsel was ineffective.
First, Pollard claims that counsel was ineffective for failing to prepare his two alibi
witnesses prior to trial. Pollard expressed dissatisfaction that trial counsel allowed the
State to call them both as witnesses, and he felt trial counsel did not adequately discuss
the case with either of them. To provide context for this claim, we draw on the trial
transcripts.
Police were first dispatched to the scene of a shooting at about 1:28 p.m.
Information had been called into the police by multiple sources who had heard the
gunshots and observed people running from the residence where the shooting occurred. A
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neighbor also had eight surveillance cameras surrounding his home. He gave police
footage of what the cameras captured from noon to 2 p.m. that day. The State showed the
footage to the jury and it depicted someone running from the area consistent with the
witness statements. All the testimony about the time of the shooting reflected a time
frame between 1 p.m. and 1:28 p.m.
Rachel Peters is Pollard's grandmother. She was called as a State's witness at trial.
She said Pollard had been living with her off and on. She testified that she got home from
work the day of the crime between 12:30 and 1 p.m. Her habit was to go to her room and
watch her favorite game shows. On the day of the crime, Pollard was at her house when
she arrived home. Although she appeared confused during direct examination and did not
remember some of the things she had said in a prior police interview, when cross-
examined by Pollard's attorney she testified that Pollard was at her house during the game
show Catch 21, which ran from 1 to 1:30 p.m. and through Chain Reaction which ran
from 1:30 to 2 p.m. If the jury believed her, her testimony was enough to establish that
Pollard was with her during the time the State claimed the crime took place. But the State
also called a detective she had spoken with around the time of the crime to put the
credibility of her statements in doubt.
Edward Pollard was Peters' son, and Pollard's uncle. He lived at Peters' house. He
was also called to testify by the State. He testified that on the day of the crime he left the
house at 12:10 p.m. to go to work. Like with Peters, the prosecutor managed to point out
some inconsistencies between his testimony before the jury and what he had told police
the day of the crime. He had apparently told police earlier that he first saw Pollard in the
house between 1:30 p.m. and 1:55 p.m. He also told detectives that when he left the
house, the police were already at the crime scene, and he saw all the activity—suggesting
he left sometime after 1:28 p.m. During cross-examination, Pollard's attorney
reestablished with Edward that he had first observed Pollard at the house at 12:10 to
12:15 and he was on a flip phone. If the jury believed Edward, it would mildly reinforce
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Peters' testimony that Pollard was at her home at the time of the crime. But just like with
Peters, the State also called the detective he had spoken with around the time of the crime
to put the credibility of his statements in doubt.
Yet another uncle of Pollard's and a cousin testified that Pollard was at their house
at 1 p.m. on the day of the crime. He left after receiving a phone call at 1 p.m. and
returned at about 4:30 p.m. wearing different clothes. The cousin testified similarly.
Pollard testified at the evidentiary hearing. On cross-examination, he admitted that
police officers interviewed both his Uncle Edward and Peters the night of the crime, and
trial counsel filed a notice of alibi with the district court which was supported by
Edward's and Peters' statements to police shortly after the crime. Pollard acknowledged
that Edward's and Peters' testimony during trial conflicted with their earlier statements to
police officers, which is why he felt trial counsel should have reviewed their previous
statements with them before trial.
Pollard's trial counsel testified that he spoke with both Edward and Peters on the
telephone about the statements they gave to police officers prior to Pollard's trial. He
specifically recalled speaking with Peters about the timeline of the day of the crime. He
said he spoke with both to ensure their statements matched those they had given police,
and he filed a notice of alibi in case he called them to testify during trial. He did not
record or take any notes from the conversations between himself and Edward or Peters.
He also did not recall specifically how long the conversations lasted, but he recalled them
not lasting very long. Even so, trial counsel felt the conversations were enough to prepare
them for their testimony during trial. That said, the State surprised him by calling Edward
and Peters to testify during its case-in-chief, but trial counsel said he was prepared to call
them if the State had not. In fact, he felt he was probably in a better position to question
them through cross-examination where he could better direct their testimony.
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Second, Pollard claims trial counsel should have objected to the introduction of
surveillance footage from those cameras the neighbor gave police because Pollard
believed the footage was more prejudicial than probative. Pollard believed the
surveillance footage had no connection with the case and counsel should have asked the
court to suppress it because it did not show identifiable people running from the scene of
the crime. His trial counsel explained that he did not believe there was any basis to
suppress the evidence because it belonged to one of the victim's neighbors who gave it to
the police, so there could be no Fourth Amendment claim. Similarly, trial counsel did not
believe he had any basis to object to the introduction of the video during trial.
Third, Pollard claims that his attorney was ineffective for not objecting to the
introduction of text messages that appeared on a phone that did not belong to him—
though admittedly from a number associated with him. Pollard argued that the evidence
did not show that he sent the text messages or was using his phone when they were
received. The text messages were sent before the robbery and murder and appear to be
setting up the robbery. They align with what witnesses testified were the plans that day
and the involvement of Pollard. Trial counsel testified that he did not believe he had a
basis to object to those text messages coming in, but that he did point out the problems
with the evidence during cross-examination and again emphasized in closing that there
was no direct evidence that Pollard sent the messages.
The district court concluded that trial counsel interviewed both Edward and Peters
prior to trial regarding their previous statements to law enforcement. Similarly, the
district court found that trial counsel had no basis to move to suppress or object to the
introduction of the surveillance footage because the footage came from a private citizen's
home surveillance, was voluntarily turned over to the police, and was both relevant and
probative. As to the text messages, the district court also found that it would not have
suppressed the text messages. They were sent to and retrieved from a phone that did not
belong to Pollard which was properly seized. The text messages were recovered as the
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result of a search warrant that is not challenged here. As a result, the court found that
Pollard would not have had standing to object to introduction of the text message
exchanges. In sum, the district court found that trial counsel's testimony was credible and
his performance was not deficient. As a result, the district court denied Pollard's K.S.A.
60-1507 motion.
Pollard timely appeals.
ANALYSIS
Pollard claims his counsel was ineffective in his representation of him at trial. The
right of an accused to have assistance of counsel for his or her defense is guaranteed by
the Sixth Amendment to the United States Constitution. The right is "applicable to state
proceedings by the Fourteenth Amendment." Miller v. State, 298 Kan. 921, 929, 318 P.3d
155 (2014). The guarantee includes not only the presence of counsel, but counsel's
effective assistance as well. 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, reh. denied 467 U.S. 1267 [1984]). Thus, Pollard claims he was denied a
constitutional right.
A district court has three options when handling a K.S.A. 60-1507 motion. Our
standard of review turns on which of these options a district court used. State v. Adams,
311 Kan. 569, 578, 465 P.3d 176 (2020). Here, the district court conducted a full
evidentiary hearing on the motion. After a full evidentiary hearing, the district court must
issue findings of fact and conclusions of law for all issues presented. Supreme Court Rule
183(j) (2022 Kan. S. Ct. R. at 242). We then review the court's findings of fact to
determine whether they are supported by substantial competent evidence and can support
the court's conclusions of law. Appellate review of the district court's ultimate
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conclusions of law is de novo. Balbirnie v. State, 311 Kan. 893, 897-98, 468 P.3d 334(2020).
Here, to prevail on a claim of ineffective assistance for deficient performance, "'a
criminal defendant must establish (1) 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.'" Fuller v. State, 303 Kan. 478, 486, 363 P.3d 373 (2015). 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. 303 Kan. at 488. As the movant, the burden of
proof to establish ineffective assistance of counsel is on Pollard. 303 Kan. at 486.
Pollard argues trial counsel was ineffective for two reasons: (1) counsel failed to
adequately prepare his alibi witnesses, Edward and Peters, for trial; and (2) trial counsel
failed to object to the admission into evidence of video surveillance footage and text
messages from a witness' phone. We will address each argument in turn. Pollard has
abandoned all other arguments made to the district court because he has failed to raise or
brief those issues on appeal. See In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d
1033 (2018).
Failure to adequately prepare witnesses
To advance his argument that trial counsel provided ineffective assistance of
counsel for failing to adequately prepare Edward and Peters for trial, Pollard claims he
"pointed out that there was no testimony the alibi witnesses had been prepared for what it
is like to sit on the witness stand and deal with cross examination." Pollard also points to
the age of the witnesses and the time that had passed since the crime to the time of trial.
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Had trial counsel done so, Pollard believes these witnesses would have impacted the
outcome of his trial. These arguments are unconvincing.
First, Pollard's argument essentially ignores the district court's findings on this
issue, beyond stating that he acknowledges that the district court ruled against him. The
district court found that Pollard "[g]ave no basis" and "no corroborating evidence to
support" the assertion that trial counsel failed to interview or prepare Edward and Peters
for trial. Instead, the district court held that trial counsel spoke with both witnesses before
trial about their previous statements to ensure their testimony would align with those
statements. The district court also found trial counsel's testimony credible.
Second, the district court's factual findings are supported by the record. At the
evidentiary hearing, trial counsel testified he spoke with both Edward and Peters on the
telephone before trial to discuss their previous statements made to police officers. Trial
counsel also filed a notice of alibi and felt he was prepared to call them at trial if the State
did not. None of Pollard's arguments cast doubt on trial counsel's assertions. Trial counsel
also referenced their testimony supporting an alibi for Pollard in his closing statement.
Third, Pollard ignores the standard of review. Rather than argue the district court's
factual findings are not supported by substantial competent evidence, Pollard essentially
asks this court to review the same arguments presented to the district court and come to
the opposite conclusion. That is not this court's function. See Balbirnie, 311 Kan. at 897-
98.
And lastly, Pollard fails to explain why the outcome of the trial would have been
different if Edward or Peters had been more prepared. He claims both witnesses were key
to his defense but does not point to any specific portion of their testimony that he believes
trial counsel failed to prepare them for. Instead, he presents conclusory statements about
Edward's and Peters' lack of preparation and speculative arguments concerning how their
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testimony impacted his case. He concludes that but for counsel's lack of preparation the
trial outcome would have been different. Such arguments do not satisfy either prong of
the ineffective assistance of counsel inquiry and ignores the breadth of other evidence
presented in the case that Pollard participated in the robbery and murder. It also ignores
the fact that trial counsel managed to pin Edward and Peters down to the time frame that
most benefited his alibi defense. See Fuller, 303 Kan. at 486.
Failing to suppress or object to the surveillance footage and text messages
We combine Pollard's second and third claims as one since they both involve the
failure to seek the suppression of evidence. Pollard asserts trial counsel "was ineffective
for failing to suppress or object to the videotape and the text messages from Mr. Guy['s]
cellphone." That said, Pollard acknowledges that a private citizen took the surveillance
footage and provided it to police, which meant trial counsel could not object on Fourth
Amendment grounds. Similarly, he acknowledges he lacked standing to object to the
introduction of the text messages because the police properly retrieved the messages from
Guy's phone.
These acknowledgments essentially defeat Pollard's claims. Pollard does not
explain how we could find trial counsel's performance deficient under the totality of the
circumstances since he acknowledges trial counsel did not have any legal avenue to move
to suppress or object to the introduction of the surveillance footage or text messages. Nor
does he explain how trial counsel's performance could have prejudiced him if there was
no way to keep the evidence from being admitted. See Fuller, 303 Kan. at 486.
And as he did in the previous issue, Pollard ignores the standard of review and the
district court's factual findings on this issue. When delivering its ruling, the district court
issued extensive factual findings from the trial transcript regarding why trial counsel
could not have suppressed the video surveillance footage and text messages. Similarly,
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the district court issued extensive factual findings regarding why trial counsel's
performance was not deficient for failing to object to the introductions of that evidence.
The district court considered the surveillance footage and text messages both relevant and
highly probative. None of Pollard's arguments on appeal cast doubt on the district court's
factual findings or legal conclusions.
It is also worth mentioning that the district judge who presided over Pollard's trial
also ruled on Pollard's K.S.A. 60-1507 motion. In such situations, this court has given
deference to a district court's factual findings. See Gilkey v. State, 31 Kan. App. 2d 77,
78, 60 P.3d 351 (2003). And our Supreme Court has stated that the performance of trial
counsel "'can best be evaluated by the judge who presided at trial.'" Wilkins v. State, 286
Kan. 971, 988, 190 P.3d 957 (2008).
In sum, Pollard's arguments ignore the standard of review as it relates to the
district court's factual findings. Similarly, his arguments fail under both prongs of the
Strickland test. He does not establish that trial counsel's performance was deficient under
the totality of the circumstances or that the alleged deficiencies prejudiced his trial. For
these reasons, we affirm.
Affirmed.
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