Kangas v. State ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,601
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
WILLIAM G. KANGAS,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Harper District Court; R. SCOTT MCQUIN, judge. Opinion filed October 9, 2020.
Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before BRUNS, P.J., WARNER, J., and BURGESS, S.J.
PER CURIAM: William G. Kangas appeals the district court's denial of his K.S.A.
60-1507 motion. In the district court, Kangas complained that his trial counsel failed to
object to the prosecutor's statements, arguing they vouched for witness' credibility. He
also complained that his appellate counsel should have raised prosecutorial error on
appeal. The district court held that neither counsel was ineffective. Kangas renews these
claims on appeal. Because the statements were not prosecutorial error, we affirm the
district court.
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FACTUAL AND PROCEDURAL BACKGROUND
In 2013, a jury convicted William Kangas of aggravated kidnapping, criminal
threat, domestic battery, and criminal damage to property. The district court sentenced
him to 88 months in prison. On his direct appeal, he argued that the district court violated
his constitutional rights when it allowed a video recording of the victim's statements to
the police into the jury room for the jury's examination. This court affirmed the district
court. See State v. Kangas, No. 111,519, 2015 WL 5458519 (Kan. App. 2015)
(unpublished opinion).
During the trial, Terry Griffiths, a nurse practitioner, testified she examined S. S.,
the victim, after she came to the emergency room with multiple bruises. Griffiths
recounted S.S.'s account about how Kangas beat her. Griffin testified she was trained to
detect malingering and that S.S. did not appear to be malingering. She stated that S.S. did
not appear to be under the influence of alcohol.
The victim's mother, C.G., testified that a pastor brought S.S., bruised and upset,
over to her home. She recounted what S.S. told her about what Kangas did to her. After
this, C.G. took S.S. to the emergency room.
During closing arguments, the prosecutor made several statements to the jury:
"We have seen the photos of what happened to her. We saw that she went then to
the hospital. She told the nurse practitioner what happened to her. She told essentially the
same thing. She told her mother what happened to her, when they took her to her
mother's home. Essentially the same thing. She's not a robot, she told it essentially the
same every time. The same essential facts are there. A person probably doesn't tell
exactly the same thing unless they have memorized. She didn't memorize.
....
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"Her mother knows her daughter. You heard her testimony about what her—what
her daughter looked like and how worried she was. And you heard the nurse practitioner
testify, she was not malingering. She was not pretending to be hurt. This is a trained
nurse practitioner. She knows how to find out. She said, no, that didn't happen. And we
asked her, was she under the influence. She's trained to detect those things, she needs to
do that for her work, and she testified, no, she didn't see any signs that she was currently
under the influence, although it showed in her blood test she had smoked marijuana
sometime in the last 45 days. She said herself that she didn't drink alcohol. And, you
notice she recanted many of the things that she originally tried to say to help—to help
William."
In 2017, Kangas filed a K.S.A. 60-1507 motion. Kangas listed four statements
made by the prosecution:
• "A person probably doesn't tell exactly the same thing unless they memorized. She
didn't memorize."
• "Her mother knows her daughter."
• "This is a trained nurse practitioner. She knows how to find out. She said no that
didn't happen."
• "And we asked her, was she under the influence. She's trained to detect those
things, she needs to do that for her work, and she testified, no, she didn't see any
signs that she was currently under the influence, although it showed in her blood
test she had smoked marijuana sometime in the last 45 days."
Kangas also noted that the appellate defender, Christina Kerls, did not chose to pursue
this claim in his direct appeal. Kangas later amended his motion to include a claim that
his trial counsel, Michael Brown, was ineffective for failing to object to the prosecutorial
errors and his appellate counsel was ineffective for failing to raise prosecutorial error and
trial counsel's ineffectiveness on appeal.
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The district court held an evidentiary hearing. First, Brown testified about his
representation of Kangas but did not testify to anything about the prosecutor's closing
argument. Second, Kerls testified that she always considers statements made by
prosecutors in either opening or closing argument because they do not have to be
objected to. But Kerls did not testify about the statements Kangas raises in this appeal.
Lastly, Kangas testified that he wrote Kerls a letter with a list of 12 issues he thought they
should appeal. The only issue she pursued was a claim that the prosecution should not
have given a video to the jury in its deliberations.
In a memorandum decision, the district court denied Kangas' motion. It found that
the evidence did not support Kangas' claims of ineffective assistance of trial or appellate
counsel. The district court found that Kerls, upon her review of the record, determined
there was no basis for any claim of prosecutorial error. Kerls saw that Brown had
objected to all the potential prosecutorial error claims, and the district court addressed
these objections. Kerls concluded Kangas suffered no prejudice. The district court also
stated that "most of the claims of prosecutorial [error] set out in Kangas' motion are not
[error] at all, but merely the prosecutor pointing out the evidence favorable to the [S]tate's
case." The district court held that neither counsel was ineffective.
Kangas timely appeals.
THE DISTRICT COURT DID NOT ERR IN DENYING KANGAS' CLAIM THAT HIS
TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO
CHALLENGE THE PROSECUTOR'S STATEMENTS.
On appeal, Kangas asserts the prosecutor improperly vouched for its witnesses'
credibility. He argues that his trial counsel was ineffective for failing to object to these
statements and his appellate counsel should have raised this prosecutorial error on appeal.
He concludes this alone establishes deficient performances and prejudice.
4
Preservation
In his motion and amended motion, Kangas raised ineffective counsel for failing
to object when the prosecutor allegedly vouched for the credibility of its witnesses. The
district court denied Kangas' K.S.A. 60-1507 motion and stated that the evidence did not
support the claims of ineffective assistance of counsel. Kangas has properly preserved
this issue.
Standard of Review
When the district court conducts an evidentiary hearing on claims of ineffective
assistance of counsel, appellate courts review the district court's factual findings using a
substantial competent evidence standard. State v. Butler, 307 Kan. 831, 853, 416 P.3d
116 (2018). Substantial competent evidence refers to legal and relevant evidence that a
reasonable person could accept as adequate to support a conclusion. State v. Doelz, 309
Kan. 133, 138, 432 P.3d 669 (2019). Appellate courts review the district court's legal
conclusions based on those facts applying a de novo standard of review. Butler, 307 Kan.
at 853.
Analysis
Trial Counsel Was Not Ineffective
"To prevail on a claim of ineffective assistance of trial 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, reh.
denied 467 U.S. 1267 [1984])." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).
5
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. State v. Sprague, 303 Kan.418, 426, 362 P.3d 828 (2015).The reviewing
court must strongly presume that counsel's conduct fell within the broad range of
reasonable professional assistance. See 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 to undermine
confidence in the outcome. Sprague, 303 Kan. at 426.
Kangas must show that Brown's performance was deficient under the totality of
the circumstances. See Salary, 309 Kan. at 483. Kangas claims Brown's failure to object
to the prosecutor's alleged vouching for its witnesses' credibility establishes Brown's
deficient performance. Under the totality of the circumstances, Kangas must first show
that these statements fall under prosecutorial error in the first place. He fails to do so.
These statements were not the prosecutor's mere opinion but were proper statements that
directed the jury to make reasonable inferences based on the evidence.
In State v. Sherman, 305 Kan. 88, Syl. ¶¶ 5-8, 378 P.3d 1060 (2016), the Kansas
Supreme Court revamped the concept of and standard of review for "prosecutorial
misconduct." In the context of whether a criminal conviction is reversible due to the
inappropriate actions of a prosecutor during trial, the nomenclature has been changed to
"prosecutorial error." 305 Kan. at 91-93.
An appellate court uses a two-step process to evaluate claims of prosecutorial
error. The complaining party must show that an error has been committed and that he or
she was prejudiced by that error. See 305 Kan. at 109.
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"To determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial." 305 Kan. at 109.
See State v. Blansett, 309 Kan. 401, 412, 435 P.3d 1136 (2019).
Because jurors must base their determination of a witness' credibility on their
observations and experience, a prosecutor errs when he or she offers to the jury his or her
opinion on the credibility of a witness. See State v. Sean, 306 Kan. 963, 979, 399 P.3d
168 (2017); State v. Dull, 298 Kan. 832, 837, 317 P.3d 104 (2014); Kansas Rule of
Professional Conduct (KRPC) 3.4(e) (2020 Kan. S. Ct. R. 357) ("A lawyer shall not . . .
state a personal opinion as to . . . the credibility of a witness."). Commenting on the
credibility of a witness generally involves direct comments about whether the witness
was lying or telling the truth. See, e.g., State v. Hirsh, 310 Kan. 321, 342, 446 P.3d 472(2019) (prosecutor improperly stated, "'She told the truth.'"); State v. Knox, 301 Kan. 671,
683, 347 P.3d 656 (2015) (Prosecutor erred by stating her personal opinion that witness
"'was brutally honest on the stand'" and told "'the truth'" because "comments were
unsworn and unchecked statements that are not fair commentary on the evidence."); Dull,
298 Kan. at 837 (prosecutor's statement that victim's story was "'the truth'" outside wide
latitude afforded prosecutors); State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005)
(prosecutor improperly said, "'you know [the victim] was telling you the truth'"); State v.
Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000) (prosecutorial "misconduct" when the
prosecutor told the jury that the defendant and defense counsel lied).
Yet "a prosecutor does not act outside the wide latitude afforded if he or she
merely observes that some reasonable inference about witness credibility may be drawn
from evidence introduced at trial." Sean, 306 Kan. at 980 (stating a fact based on
something already in evidence is not prosecutorial error); cf. State v. Hachmeister, 311
Kan. _504, 519, 464 P.3d 947 (2020) ("Prosecutors may comment on a witness' lack of
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motivation to be untruthful but must base these comments on the evidence and reasonable
inferences from the evidence without stating their own personal opinion concerning the
witness' credibility."). See, e.g., State v. Duong, 292 Kan. 824, 831-32, 257 P.3d 309(2011) (prosecutor's explicit comments about witnesses' credibility not improper because
they were reasonable inferences based on the evidence at trial and prosecutor directed
jury to that evidence); State v. King, 288 Kan. 333, 353, 204 P.3d 585 (2009) (prosecutor
may comment on evidence that demonstrates the witness' motivations to be untruthful);
State v. McReynolds, 288 Kan. 318, 326, 202 P.3d 658 (2009) (A prosecutor may offer
"the jury an explanation of 'what it should look for in assessing witness credibility.'");
State v. Davis, 275 Kan. 107, 122-23, 61 P.3d 701 (2003) (prosecutor made reasonable
inferences based on evidence in stating witness should be believed and that witness was
more likely to tell truth in first police interview than second).
Kangas asserts the prosecutor's statements, listed above, were improper vouching.
They were not. They were comments either about the evidence or about what the jury
should look for in assessing witness credibility. The prosecutor's statement, "A person
probably doesn't tell exactly the same thing unless they memorized. She didn't
memorize," came in the context of the prosecutor telling the jury that S.S.'s multiple
stories were close but not perfect. S.S.'s testimony and her disparate narratives may have
challenged the victim's credibility, and the prosecutor properly offered the jury "an
explanation of 'what it should look for in assessing'" those narratives. See McReynolds,
288 Kan. at 326 (stating it was proper for the prosecutor to offer an explanation for the
defendant's two competing stories); see also State v. Carter, 305 Kan. 139, 156-57, 380
P.3d 189 (2016) (stating the prosecutor's statements that the defendant was telling three
stories of the events to protect himself was not improper); State v. Chanthaseng, 293
Kan. 140, 143, 148, 261 P.3d 889 (2011) (stating the prosecutor's statement that the
witness was credible because she was consistent and "'the same on the elements'" was not
improper).
8
The prosecutor's statements about the victim's mother and the nurse practitioner
were not the prosecutor's personal opinion about their credibility. They were statements
made about the evidence or reasonable inferences that could be drawn from the evidence.
The statement, "Her mother knows her daughter," was a reasonable reference regarding
the relationship between the mother and daughter. It was a fair comment that a mother
would have insight to her daughter's comments and behavior. The statements about the
nurse practitioner pointed to her training and the testimony she gave at trial.
Because none of these statements were prosecutorial error, there was no reason for
Brown to object at trial. To prevail, Kangas must establish that Brown's performance was
deficient under the totality of the circumstances. Brown's failure to object to comments
that were not error does not help Kangas meet his burden to show Brown was ineffective.
Kangas challenges no other aspect of the district court's holding that Brown was
ineffective. We affirm the district court's holding that Kangas failed to meet the first
prong of the Strickland test, and his claim for Brown's ineffectiveness fails.
In all events, Kangas fails to claim or make a showing that the result of the trial
would have been different but for the comments of the prosecutor. Kangas fails on the
second prong of the test for ineffective assistance of counsel.
Appellate Counsel Was Not Ineffective
To establish ineffective assistance of counsel on appeal, a defendant must show
that (1) counsel's performance, based on the totality of the circumstances, was deficient in
that it fell below an objective standard of reasonableness and (2) the defendant was
prejudiced to the extent that there is a reasonable probability that, but for counsel's
deficient performance, the appeal would have been successful. Miller v. State, 298 Kan.
921, 930-31, 934, 318 P.3d 155 (2014); see also Butler, 307 Kan. at 852-53 (detailed
quotation describing the Strickland standard).
9
Like the above argument, the district court did not err in denying Kangas' claim
that Kerls was ineffective. She was not ineffective for failing to raise prosecutorial error
over statements that she judged not to be error—and that indeed were not. See Holmes v.
State, 292 Kan. 271, 280, 252 P.3d 573 (2011) ("[A]n attorney has no duty to assert on
appeal every alleged error."). Thus Kangas' argument fails here as well.
Affirmed.
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