State v. Marshall ( 2015 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 110,976
STATE OF KANSAS,
Appellee,
v.
MARQUIS J. MARSHALL,
Appellant.
SYLLABUS BY THE COURT
1.
An appellate court applies an abuse of discretion standard when determining
whether a district court made the correct decision regarding a defendant's competency to
stand trial.
2.
Judicial discretion can be abused in three ways: (1) if no reasonable person would
have taken the view adopted by the trial court; (2) if the judicial action is based on an
error of law; or (3) if the judicial action is based on an error of fact.
3.
Under K.S.A. 22-3301(1), a defendant is incompetent to stand trial when he or she
cannot understand the nature or purpose of the proceedings or cannot make or assist in
making his or her defense because of mental illness or defect.
4.
The failure to hold a competency hearing when evidence raises a bona fide doubt
as to defendant's competency is a denial of due process. Courts presume a criminal
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defendant is competent to stand trial. Furthermore, a defendant is not incompetent to
stand trial simply because he or she has received or needs psychiatric treatment.
5.
To protect a defendant's right to counsel under the Sixth Amendment to the United
States Constitution, a district court must inquire into potential conflicts between a
defendant charged with a felony and defense counsel if (1) the court is aware of the
conflict or (2) it is brought to the court's attention. A district court abuses its discretion if
it becomes aware of a potential conflict of interest between a defendant and his or her
attorney but fails to conduct an inquiry. Furthermore, a district court can abuse its
discretion if it conducts an inquiry into a defendant's claim of dissatisfaction with his or
her attorney but the inquiry fails to fully investigate (1) the basis for the claim and (2) the
facts necessary for determining if that dissatisfaction justifies appointing new counsel.
6.
Though an indigent criminal defendant has a constitutional right to the assistance
of counsel, such a defendant cannot compel the district court to appoint the counsel of
defendant's choice. To warrant substitute counsel, a defendant must show "justifiable
dissatisfaction" with his or her appointed counsel. Justifiable dissatisfaction may be
demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a
complete breakdown in communication between counsel and the defendant.
7.
As long as the trial court has a reasonable basis for believing the attorney-client
relationship has not deteriorated to a point where appointed counsel can no longer give
effective aid in the fair presentation of a defense, the court is justified in refusing to
appoint new counsel.
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8.
Cumulative trial errors, when considered collectively, may require reversal of the
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. Cumulative error, however, will not be
found when the record fails to support any of the errors raised on appeal by the
defendant.
Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed December 18,
2015. Affirmed.
Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief
for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Derek Schmidt, attorney
general, and Marc Bennett, district attorney, were with her on the brief for appellee.
The opinion of the court was delivered by
ROSEN, J.: Marquis Marshall was convicted of capital murder in connection with
the November 2012 slayings of Zachary Hunt and Henry Harvey inside a Wichita Dollar
General store. The district court imposed a sentence of lifetime imprisonment without the
possibility of parole.
On appeal, Marshall does not challenge the sufficiency of the evidence presented
against him at trial. But he raises four arguments for why his capital murder conviction
cannot stand: (1) The district court erred when it failed to order a competency
evaluation; (2) the district court erred when it failed to sufficiently inquire into Marshall's
requests for new counsel; (3) the district court judge erred when he allegedly misspoke
during his reading of the instructions to the jury; and (4) the cumulative effect of these
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errors deprived Marshall of a fair trial. Finding no merit with any of these arguments, we
affirm Marshall's conviction.
FACTS
The evidence presented at Marshall's trial established that shortly after 8 p.m. on
November 30, 2012, he entered a Wichita Dollar General store and proceeded to walk
down an aisle. At the time, Hunt, an employee of the store, was at the cash register
tallying up customer Harvey's purchases. A few seconds later, Marshall emerged from
the aisle holding a .22 caliber pistol. He walked to the front of the store and fired three
shots into Hunt's body and then three shots into Harvey's back, killing both men. In a rush
to flee, Marshall attempted to exit the store by first pushing against the store's inwardly-
swinging entrance door with his bare palm. He quickly realized his error and escaped
through the store's designated exit. The entire incident—from Marshall's entry to his
eventual flight from the store—lasted less than 1 minute.
A store employee who was in the storage room during the shooting eventually
called 911. Law enforcement quickly arrived at the scene and reviewed the video
captured on the store's surveillance system. Though the resolution of the video was too
poor to yield any specific details (aside from gender) regarding the shooter, it showed the
particular location on the entry door where the shooter had placed his palm as he
attempted his exit through the door. A crime scene investigator inspected that area of the
door and found a palm print. The print was lifted from the door and transferred to the
crime lab for immediate testing. A latent print examiner determined that the print
matched a known print of Marshall's contained within a database.
Notably, footage from inside the store showed a store employee wiping down the
inside of the entry door a few hours before the shooting, thus eliminating or greatly
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reducing the possibility that Marshall's print was left on the door during an earlier visit to
the store.
On December 2, 2012, Marshall was arrested during a traffic stop. He was taken to
the police station where he was questioned by detectives. After answering a few
biographical questions, Marshall was advised of and waived his Miranda rights, agreeing
to speak with the detectives. During the interview, the detectives showed Marshall a
picture of the shooter placing his hand on the entry door and told Marshall that his
fingerprints had been found on that area of the door. In response, Marshall said,
"'Obviously.'" Though Marshall denied being at the store during the time of the
shootings, he told the detectives, "'I never expect myself to kill anybody.'" When the
discussion turned to what gun the shooter used, Marshall asked whether the gun was a .22
before officers could mention that fact. Throughout the interview, Marshall had no
trouble understanding and answering the detectives' questions. Marshall eventually asked
for a lawyer, causing the detectives to end the interview and leave the interrogation room.
While Marshall was alone in the room, a police officer monitored video and audio
footage of the room. During this time, the officer heard Marshall make several statements
to himself. According to the officer, who took notes at the time, Marshall made the
following statements:
 "'Crazy. They think I killed two people. Two whole people. I never killed
nobody. Rest of my life in prison and I didn't even get to kill anybody.'"
 "'My grandmother thinks I killed two people, my mom thinks I killed two people.
I think I'm starting to think I killed two people. I don't give a fuck. I don't even
like Dollar General.'"
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 "'I'm thinking about a full-out confession, but I don't know where to start. I really
don't.'"
 "'Funny, all the bad things I have done in my life, only one thing I wish I could
take back, and I'm telling you, it was that night. Only thing I ever wish I could
take back. Like anybody and everybody else, if I could take back that one night, I
swear, heartbeat, just so you could be here.'"
 "'You think it's over for me or what? I think it's been over for me, honestly, too.
You knew me. Did you think I would do something like this? But you know the
truth. You know what kind of person I am. You also know that I don't like
shooting .22s, don't you. I hate .22s with a passion.'"
 "'Swear I don't know how my fingerprints got on that door. I don't even
remember going to Dollar General that day.'"
 "'I remember all I had to do was pull the trigger and you would be here today.'"
On December 5, 2012, Marshall was charged with one count of capital murder. On
April 2, 2013, he filed a pro se motion under K.S.A. 2014 Supp. 60-1501, seeking
termination of defense counsel. Marshall alleged that the request was based on counsel's
lack of performance and "a conflict of breakdown communication." Marshall also alleged
that counsel had engaged in unethical behavior based on his refusal to communicate with
Marshall regarding continuances or to provide him information on a death penalty
defense. Marshall also alleged that he had only spoken to defense counsel one time since
his confinement in the Sedgwick County Jail.
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Prior to Marshall's preliminary hearing on May 2, 2013, the district court
addressed Marshall's motion, advising him that his "motion or petition for ineffective
assistance" was likely premature given the early stage of his case. The district court then
asked Marshall whether he desired to proceed with the motion to have counsel dismissed.
Marshall declined, saying he wanted to withdraw the motion and proceed with defense
counsel.
In July 2013, Marshall filed two pro se motions. The first motion requested that he
be sent to Larned State Hospital for an evaluation. In support of this motion, Marshall
noted that he had been previously sent to Larned, had taken "meds for mental problems"
in the past, and was seen by a doctor while at Larned. The second motion requested that
his counsel be dismissed for ineffective assistance based on "(1) lack of
communication[,] (2) irreconcilable differences[,] and (3) conflict of interest." Marshall
did not provide any factual allegations to support his assertions.
On August 27, 2013, a hearing was held to address the two motions. When asked
what the basis was for his motion to dismiss defense counsel, Marshall was vague, saying
that he did not think defense counsel had done anything for him and that defense counsel
was "not communicating with my family, not telling me things I need to know, that he
needs to tell me." The district court asked Marshall to provide a legal basis for removing
defense counsel. Marshall responded that he did not know "exactly what to say." The
district court denied the motion after Marshall conceded that there was no basis for his
motion. With regard to Marshall's request to be sent to Larned for an evaluation, Marshall
told the court that he did not write the motion himself and that he did not "even know
what Larned is exactly." In response, the district court denied that motion as well.
In September 2013, Marshall began refusing to visit with defense counsel.
(According to comments made by the prosecutor at a September 25 hearing, prior to
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Marshall's refusal to see his attorney, defense counsel had visited Marshall 20 to 25
times.) Marshall also refused clothes that defense counsel had brought to him to wear
during his trial. The district court conducted a hearing on the matter on September 25.
When Marshall was asked why he was refusing to meet with his attorney, he said, "Me
and my lawyer ain't seeing eye to eye." When asked to elaborate, Marshall said he did not
think defense counsel was "working for me to the best of his abilities." The district court
asked Marshall what he expected defense counsel to do prior to the start of trial on
September 30. Marshall replied, "I didn't say I expect him to do anything." After the
district court judge advised Marshall that trial would not be delayed due to his refusal to
meet with defense counsel and that he would be forced to wear his jail-issued jumpsuit if
he refused the clothes that defense counsel had offered to him, Marshall told the court
that he would meet with his attorney and that he would wear the clothes.
Later at the hearing, the district court asked defense counsel whether there was
anything he wanted to put on the record. Defense counsel stated:
"[Marshall] has assured me that when I come to see him he's going to see me, and we've
seen each other a lot. And I—I'm—I don't take this lightly. And I think a failure—a
breakdown in communication is the standard whether I should move to withdraw.
"And I think we've communicated sufficiently in the past. He certainly knows
what I think. I haven't—I haven't shied away from my opinion, or what he's going to see
at the trial, or what his options are. I think he understands those. If I didn't think that I
would have filed competency papers. I've not done that; I don't think he's incompetent.
"I've told him that I'll be up to see him, you know, a couple of times between
now and Monday [the first day of trial] this weekend. I'll be here all weekend. And he's
agreed to come out and see me, so I think we'll be ready on Monday."
Marshall's trial proceeded as scheduled on September 30. At the conclusion of the
trial, the jury found Marshall guilty of capital murder. Because the State did not seek the
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death penalty, the district court imposed the mandated sentence of lifetime imprisonment
without the possibility of parole.
Marshall filed a timely notice of appeal.
COMPETENCY EVALUATION
Marshall first argues that the district court should have construed his pro se motion
requesting a psychological evaluation at Larned as a motion to determine his competency
to stand trial. Marshall contends that the circumstances surrounding his case (the
irrationality of his crime, his rambling monologue while left alone in the interrogation
room at the police station, his claim that he had previously been sent to Larned State
Hospital and that he has taken medication for his "mental problems") should have put the
district court on notice that his competency to stand trial was at issue and needed to be
verified.
Under K.S.A. 2014 Supp. 22-3302(1), a district court judge has a duty to inquire
into a defendant's competency should the circumstances warrant. The statute states:
"If . . . upon the judge's own knowledge and observation, the judge before whom the case
is pending finds that there is reason to believe that the defendant is incompetent to stand
trial the proceedings shall be suspended and a hearing conducted to determine the
competency of the defendant." K.S.A. 2014 Supp. 22-3302(1).
An appellate court applies an abuse of discretion standard when determining
whether a district court made the correct decision regarding a defendant's competency to
stand trial. State v. Foster, 290 Kan. 696, 703, 233 P.3d 265 (2010) (applying abuse of
discretion standard to determine whether district court, after ordering defendant to Larned
State Hospital for a competency evaluation, conducting a competency hearing, and
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finding defendant competent to stand trial, erred when it failed to revisit defendant's
competency to stand trial sua sponte under K.S.A. 22-3302[1] based on defendant's
subsequent behavior at trial). "Judicial discretion can be abused in three ways: (1) if no
reasonable person would have taken the view adopted by the trial court; (2) if the judicial
action is based on an error of law; or (3) if the judicial action is based on an error of fact."
State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
A defendant is incompetent to stand trial when he or she cannot understand the
nature or purpose of the proceedings or cannot make or assist in making his or her
defense because of mental illness or defect. K.S.A. 22-3301(1). This standard is in accord
with the standard pronounced by the United States Supreme Court, which states that "the
'test must be whether [the defendant] has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding—and whether he has a rational
as well as factual understanding of the proceedings against him.'" Dusky v. United States,
362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). "The failure to hold a
competency hearing, when 'evidence raises a bona fide doubt as to defendant's
competency, is a denial of due process.' [Citations omitted.]" State v. Foster, 290 Kan.
696, 704, 233 P.3d 265 (2010). "Courts presume a criminal defendant is competent to
stand trial." State v. Barnes, 293 Kan. 240, 256, 262 P.3d 297 (2011). Furthermore, "[a]
defendant is not incompetent to stand trial simply because that individual has received or
needs psychiatric treatment." State v. Harkness, 252 Kan. 510, 516, 847 P.2d 1191
(1993).
With regard to Marshall's assertion that his competency to stand trial was put into
question based on the irrationality of his crime, the State aptly responds by stating that
"[t]here is seldom a rational or logical explanation for violent crimes, but the inexplicable
nature of a defendant's choice of actions is not, in and of itself, a sign of incompetency."
In State v. Shopteese, 283 Kan. 331, 153 P.3d 1208 (2007), the court stated:
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"'"[I]f the accused is capable of understanding the nature and object of the proceedings
going on against him; if he rightly comprehends his own condition with reference to such
proceedings, and can conduct his defense in a rational manner, he is, for the purpose of
being tried, to be deemed sane, although on some other subject his mind may be deranged
or unsound." [Citations omitted.]'" 283 Kan. at 341 (quoting Van Dusen v. State, 197
Kan. 718, 722-23, 421 P.2d 197 [1966]).
See also State v. Barnes, 293 Kan. 240, 256, 262 P.3d 297 (2011) (same).
The only facts that Marshall alleged within his motion to support his request for a
competency evaluation was that he had been sent to Larned before, had taken
medications for mental problems, and was seen by a doctor while at Larned. At the
hearing to address this motion and Marshall's second motion to dismiss counsel, Marshall
was clearly able to communicate with the district court judge and responded
appropriately to the judge's questions. When the judge asked Marshall about his motion
requesting the evaluation, Marshall conceded that he did not write the motion
(presumably someone in jail had drafted the document for him) and stated, "I don't even
know what Larned is exactly." Though the facts alleged in the motion warranted further
exploration at a hearing, Marshall's behavior and verbal responses to the judge's inquiry
at that hearing did not put into question his competency to stand trial.
Similarly, Marshall's behavior at his interview with detectives (evidence of which,
based on the record, was not presented to the district court until during Marshall's trial)
did not warrant an evaluation of Marshall's competency. According to one of the
detectives that interviewed Marshall, Marshall asked about his Miranda rights at the start
of the interview and appeared to understand the nature of those rights when they were
read to him. Marshall also had no trouble communicating with the detectives throughout
the interview, showing a keen awareness for why he was being questioned and
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responding appropriately to the detectives' questions. Perhaps most significantly,
Marshall ended the interview by invoking his right to counsel, displaying a clear
understanding of his rights and how to exercise them.
Though the subsequent comments Marshall made while left alone in the interview
room appear unusual when viewed in isolation, his behavior before and after the
comments—especially his behavior at several pretrial hearings where he was able to
clearly communicate with the court—shows that Marshall possessed mental faculties
capable of understanding the legal proceedings against him and assisting with his
defense. This conclusion is supported by defense counsel's comments at the last pretrial
hearing indicating that he had visited with Marshall on numerous occasions and had been
able to discuss the legal aspects of the case with him. Significantly, defense counsel told
the district court that he had not filed a motion to determine Marshall's competency to
stand trial because he did not think Marshall was incompetent.
Despite Marshall's argument to the contrary, a review of the record on appeal does
not raise a bona fide doubt regarding his competency to stand trial. Accordingly, we
conclude that the district court did not abuse its discretion by failing to order sua sponte
an evaluation of Marshall to determine his competency.
INQUIRY INTO MARSHALL'S REQUEST FOR NEW COUNSEL
On two separate occasions, Marshall filed motions requesting the appointment of
new counsel. Marshall withdrew the first motion, and the district court denied the second
motion. Marshall argues that the district court did not conduct a sufficient inquiry
regarding the basis for these motions.
12
To protect a defendant's right to counsel under the Sixth Amendment to the United
States Constitution, a district court must inquire into potential conflicts between a
defendant charged with a felony and defense counsel if (a) the court is aware of the
conflict or (b) it is brought to the court's attention. State v. Vann, 280 Kan. 782, 789, 127
P.3d 307 (2006). "A district court abuses its discretion if it becomes aware of a potential
conflict of interest between a defendant and his or her attorney but fails to conduct an
inquiry." State v. Pfannenstiel 302 Kan. 747, Syl. ¶ 5, 357 P.3d 877 (2015). Furthermore,
a district court can abuse its discretion if it conducts an inquiry into a defendant's claim of
dissatisfaction with his or her attorney but the inquiry fails to fully investigate (1) the
basis for the claim and (2) the facts necessary for determining if that dissatisfaction
justifies appointing new counsel. 302 Kan. 747, Syl. ¶ 6.
Though an indigent criminal defendant has a constitutional right to the assistance
of counsel, such a defendant cannot compel the district court to appoint the counsel of
defendant's choice. To warrant substitute counsel, a defendant must show "justifiable
dissatisfaction" with his or her appointed counsel. State v. Bryant, 285 Kan. 970, 986-87,
179 P.3d 1122 (2008); State v. Hegwood, 256 Kan. 901, 903, 888 P.2d 856 (1995).
Justifiable dissatisfaction may be demonstrated by showing a conflict of interest, an
irreconcilable disagreement, or a complete breakdown in communication between
counsel and the defendant. Bryant, 285 Kan. at 986. "'"[A]s long as the trial court has a
reasonable basis for believing the attorney-client relation has not deteriorated to a point
where appointed counsel can no longer give effective aid in the fair presentation of a
defense, the court is justified in refusing to appoint new counsel."'" Bryant, 285 Kan. at
986-87 (quoting State v. Ferguson, 254 Kan. 62, 70, 864 P.2d 693 [1993] [quoting State
v. Banks, 216 Kan. 390, 394, 532 P.2d 1058 (1975)]).
With regard to the first motion (alleging a lack of performance, "a conflict of
breakdown communication," unethical behavior based on defense counsel's refusal to
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discuss continuances or provide information on a death penalty defense, and just one
discussion with defense counsel since being incarcerated), the district court addressed the
motion prior to Marshall's preliminary hearing. After advising Marshall that defense
counsel was one of a few attorneys in the state qualified to handle a capital murder case
and that the motion to terminate defense counsel was likely premature due to the infancy
of the case, the district court judge asked Marshall whether he wanted to proceed with his
motion. Marshall responded by saying he wanted his motion withdrawn and agreed that
defense counsel should continue representing him. These facts demonstrate that the
district court inquired into the basis for Marshall's motion. Because Marshall withdrew
his motion, it was proper for the district court to maintain defense counsel's appointment
as Marshall's attorney without inquiring into the matter further.
Marshall's second motion alleged that defense counsel was providing him
ineffective assistance based on "(1) lack of communication[,] (2) irreconcilable
differences[,] and (3) conflict of interest." As mentioned above, Marshall did not provide
any factual allegations within his motion to support these assertions. Likewise, he did not
make any factual allegations at the hearing on the motion to show that he had a justifiable
dissatisfaction with defense counsel. When the district court asked Marshall to explain
his displeasure with defense counsel, Marshall stated that he did not think defense
counsel had done anything for him and that defense counsel was "not communicating
with my family, not telling me things I need to know, that he needs to tell me." When
asked to elaborate, Marshall responded by saying he did not know "exactly what to say."
The district court denied the motion after Marshall conceded that there was no basis for
it. Based on these facts, it cannot be said that the district court failed to conduct a
sufficient inquiry as to why Marshall wanted new counsel or that the district court acted
unreasonably by denying Marshall's motion. Marshall failed to articulate any specific
facts to support the conclusory allegations contained within his motion.
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Instead of having a justifiable dissatisfaction with defense counsel, it appears that
Marshall was filing his motions for new counsel for the purpose of delaying the case. As
indicated above, Marshall's trial was scheduled for September 30, 2013. When this date
drew near, Marshall began refusing to visit with defense counsel despite having seen him
on numerous occasions. Marshall also refused to accept clothes that defense counsel had
brought to him to wear during his trial. At the hearing to look into the matter, the district
court asked Marshall why he was refusing to meet with his attorney. Similar to his prior
statements, Marshall's comments about defense counsel remained conclusory and vague.
Marshall said, "Me and my lawyer ain't seeing eye to eye." When asked to elaborate,
Marshall said he did not think defense counsel was "working for me to the best of his
abilities." The district court asked Marshall what he expected defense counsel to do prior
to the start of trial on September 30. Marshall replied, "I didn't say I expect him to do
anything." After the district court judge advised Marshall that trial would not be delayed
due to his refusal to meet with defense counsel and that he would be forced to wear his
jail-issued jumpsuit if he refused the clothes that defense counsel had offered to him,
Marshall told the court that he would meet with his attorney and that he would wear the
clothes.
Finally, defense counsel's comments at the hearing indicate that the district court
acted appropriately in refusing to appoint new counsel. Defense counsel stated that he
and Marshall had spoken on numerous occasions about the case and that Marshall had
agreed to see him that weekend in order to prepare for trial on Monday. Defense counsel
also expressed the opinion that they had "communicated sufficiently in the past" and had
not reached "a breakdown in communication." Thus, it appears that defense counsel and
Marshall were able to maintain a relationship that allowed defense counsel to "give
effective aid in the fair presentation of a defense." See Bryant, 285 Kan. at 986-87.
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Based on the record before this court, we conclude that the district court did not
abuse its discretion by failing to inquire further into the reasons for Marshall's displeasure
with defense counsel.
THE READING OF THE JURY INSTRUCTIONS
Next, Marshall argues that the district court judge committed reversible error
during his reading of the instructions to the jury by mistakenly telling the jury that
Marshall pled "guilty" to the charge of capital murder. In support of his claim, Marshall
points to the trial transcript originally filed with this court, indicating that during the
reading of Instruction No. 5—informing the jury that Marshall was charged with capital
murder and describing the elements of that crime—the judge stated that Marshall pled
"guilty" to capital murder.
In response to Marshall's claim, the State looked into the matter and determined
that the judge had correctly told the jury that Marshall pled "not guilty" to capital murder
but that the court reporter had inadvertently omitted the word "not" from the transcript.
Subsequently, the court reporter who prepared the original transcript filed an amended
transcript reflecting this change—now Vol. XIV of the record on appeal—and an
amended certificate of filing, which noted the error in the original transcript. Marshall has
not filed any response to these developments. Accordingly, we conclude that Marshall's
claim of judicial error during the reading of the jury instructions is without merit.
CUMULATIVE ERROR
Marshall argues that his conviction should be reversed based on the cumulative
effect of the errors he has raised on appeal.
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Cumulative trial errors, when considered collectively, may require reversal of the
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. State v. Smith, 296 Kan. 111, 134, 293
P.3d 669 (2012). Cumulative error, however, "will not be found when the record fails to
support the errors raised on appeal by the defendant." State v. Cofield, 288 Kan. 367, 378,
203 P.3d 1261 (2009).
We have concluded that none of the issues raised on appeal constitute error.
Accordingly, we reject Marshall's cumulative error argument.
Marshall's conviction for capital murder is affirmed.
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