Thomas v. State ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,885
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
EDDIE LAMAR THOMAS SR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed June 18,
2021. Affirmed.
Brittany E. Lagemann, of Olathe, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before WARNER, P.J., BUSER and CLINE, JJ.
CLINE, J: Eddie Lamar Thomas Sr. appeals the district court's summary dismissal
of his K.S.A. 60-1507 motion, in which he alleged several ineffective assistance of trial
counsel claims. Since the motion, files, and records of this case conclusively establish
Thomas has no right to relief, we affirm.
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FACTS
The facts here can be found in Thomas' direct appeal before the Kansas Supreme
Court:
"On August 25, 2010, [Christopher] Dotson's body was found in his apartment.
An autopsy revealed that he died from a single gunshot wound to the head. A .40 caliber
bullet was recovered during a subsequent police search of Dotson's apartment, but the
casing was never located. In addition, a blue plastic cup was collected and submitted for
fingerprint analysis. Dotson's wallet and cell phone were missing from his apartment.
"Dotson's cell phone records revealed over 100 text messages and phone calls to
[Eddie] Thomas' cell phone on August 22, 2010, with the last phone call at 10:08 p.m. No
calls or text messages were sent from Dotson's phone after that time. Consequently,
police attempted to locate Thomas in order to question him about his August 22, 2010,
communications with Dotson.
"On August 27, 2010, Thomas voluntarily appeared at the Shawnee Police
Department for an interview with Detectives Rasnic and Hohnholt. Thomas admitted that
he had recently reconnected with Dotson through Facebook but said that he had not seen
Dotson since 2009. Thomas said that he last communicated with Dotson by text message
on Sunday, August 22, 2010, but downplayed the extent and content of their
communications on that day.
"Rasnic confronted Thomas with Dotson's cell phone records and warned
Thomas that law enforcement officers would soon know the content of the text messages.
Thereafter, Thomas admitted that Dotson had texted him throughout the day on August
22 and requested sex in exchange for money. Thomas said that he initially refused
Dotson's propositions; but when Dotson persisted, Thomas began to 'mess' with him by
seeing how much money Dotson was willing to pay. Thomas eventually admitted that he
went to Dotson's apartment on the evening of August 22, 2010, and watched television
for a little bit but then told Dotson he was not going to do anything and left. However,
after further pressing by the detectives, Thomas finally confessed that while at the
apartment, he shot Dotson with a .40 caliber Ruger pistol and took Dotson's wallet.
"After the interview, law enforcement officers applied for a warrant to search the
residence of Thomas' girlfriend, Shana Williams. The affidavit submitted in support of
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the search warrant included Thomas' admissions that (1) he owned a .40 caliber Ruger
pistol; (2) he took the pistol with him to Dotson's apartment; and (3) he shot Dotson in
the face.
"During the search of Williams' residence, police seized a white t-shirt and denim
shorts that appeared to have small drops of blood on them. The search also revealed a
receipt signed by Thomas itemizing the purchase of a Ruger P94 pistol and .40 caliber
Smith and Wesson ammunition. Police were unable to locate the pistol or ammunition.
"Thomas was first charged with first-degree murder and aggravated robbery in
Johnson County District Court case number 10CR2098. However, after his arraignment,
Thomas filed a motion to suppress statements he made during his interview, claiming a
Miranda violation. [See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).] The district court granted Thomas' motion and issued an order suppressing
portions of Thomas' interview, including his confessions that he owned a pistol, shot
Dotson, and took Dotson's wallet. The district court later dismissed the criminal charges
because Thomas' confessions were the only evidence presented at the preliminary hearing
to support the finding of probable cause for the filed charges.
"The State refiled charges against Thomas for first-degree murder under
alternative theories of premeditation and felony murder, and for aggravated robbery.
Following another preliminary hearing, the district court found that probable cause
existed to bind Thomas over for trial. The district court also incorporated its order from
Thomas' original criminal case, which had suppressed Thomas' un-Mirandized
confessions. Thomas thereafter filed a motion seeking to suppress the physical items
seized when the police executed the search warrant which had been issued upon an
affidavit containing Thomas' unlawfully obtained incriminating statements. The district
court denied the motion.
"During the trial, evidence was admitted indicating that (1) on the evening of
August 22, 2010, Thomas was wearing jean shorts and a white t-shirt and carried a
handgun in his backpack; (2) Thomas' fingerprints matched those found on a blue plastic
cup within Dotson's apartment; (3) the bullet recovered from Dotson's body could have
been fired from a Ruger P94; (4) Thomas owned a Ruger P94; (5) Dotson's DNA was
found in the presumptive blood stains located on the white t-shirt collected from
Williams' apartment; (6) Thomas' DNA was located on the interior of the white t-shirt
containing Dotson's DNA; (7) Dotson's DNA was located in the stain on the jean shorts
collected from Williams' apartment; and (8) Thomas' DNA was located on the inside of
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the jean shorts containing Dotson's DNA. Thomas' redacted interview with police, in
which he admitted to going to Dotson's apartment on August 22, 2010, was also admitted
at trial. The State also admitted a copy of a recorded telephone call from jail wherein
Thomas was asked why he did not call the police and Thomas responded: 'Because it
happened so fast. Yeah. It all happened so fast.'
"The jury found Thomas guilty of aggravated robbery and first-degree murder.
The verdict form indicated that the jury was unable to reach a unanimous verdict on
either a theory of felony murder or a theory of premeditated murder, but the jury was
unanimous in finding Thomas guilty of first-degree murder. Thomas filed a timely notice
of appeal." State v. Thomas, 302 Kan. 440, 441-44, 353 P.3d 1134 (2015).
After the Supreme Court affirmed Thomas' convictions, he filed a pro se K.S.A.
60-1507 motion, asserting several claims of ineffective assistance of trial counsel. The
district court summarily denied Thomas' K.S.A. 60-1507 motion in a thoughtful and well-
reasoned order. On appeal, Thomas addresses none of the district court's reasons for
denying his motion. Instead, he simply argues he was entitled to an evidentiary hearing
because he "alleges facts and conclusions which are not readily available in the record."
Thomas does not specify which facts or conclusions were not readily apparent from the
record or which require exploration at an evidentiary hearing. We find no fault in the
district court's rationale for denying Thomas' motion.
ANALYSIS
An evidentiary hearing on a K.S.A. 60-1507 motion is not required if the motion,
files, and records of the case conclusively show the movant has no right to relief. K.S.A.
2020 Supp. 60-1507(b). The burden is on the movant to allege facts sufficient to warrant
a hearing on the motion. Doolin v. State, 24 Kan. App. 2d 500, 501, 947 P.2d 454 (1997)
(citing State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 [1994]). To meet this burden,
a movant's contentions must be more than conclusory, and either the movant must set
forth an evidentiary basis to support those contentions or the basis must be evident from
the record. Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). If the motion
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presents no substantial issues of fact, the district court is not required to appoint counsel
or hold a hearing. Doolin, 24 Kan. App. 2d at 501 (citing Rhone v. State, 211 Kan. 206,
208, 505 P.2d 673 [1973]).
When a district court summarily dismisses a K.S.A. 60-1507 motion, like it did
here, we conduct a de novo review to determine whether the motion, files, and records of
the case conclusively establish that the movant has no right to relief. Beauclair v. State,
308 Kan. 284, 293, 419 P.3d 1180 (2018).
Since Thomas alleges ineffective assistance of counsel, his motion falls under
K.S.A. 60-1507(b), which mandates relief when a prisoner establishes, by a
preponderance of the evidence, that "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. 2020 Supp. 60-1507(b); see Supreme Court Rule 183(g) (2021 Kan. S.
Ct. R. 239). The Sixth Amendment to the United States Constitution guarantees an
accused the right to have assistance of counsel for his or her defense. Miller v. State, 298
Kan. 921, 929, 318 P.3d 155 (2014). The Fourteenth Amendment to the United States
Constitution applies this right to state proceedings. 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 [1984]).
The Kansas Supreme Court recently recounted the two-prong test for analyzing
ineffective assistance of counsel claims in Khalil-Alsalaami v. State, 313 Kan. __,
__ P.3d __, 2021 WL 1945151 (2021):
"'Strickland established a two-prong test for determining if a criminal
defendant's Sixth Amendment right to effective assistance of counsel has
been violated by an attorney's performance. 466 U.S. at 687-96. Kansas
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courts adopted this test in Chamberlain [v. State], 236 Kan. [650,] 656-
57[, 694 P.2d 468 (1985)]. Under the first prong, a defendant must
demonstrate that counsel's performance was deficient. 236 Kan. at 656. If
so, the court moves to the second prong and determines whether there is
a reasonable probability that, without counsel's unprofessional errors, the
result would have been different. Strickland, 466 U.S. at 694.' State v.
Betancourt, 301 Kan. 282, 306, 342 P.3d 916 (2015).
"To establish deficient performance under the first prong, 'the defendant must
show that counsel's representation fell below an objective standard of reasonableness.'
Strickland, 466 U.S. at 688. Courts must remain mindful that their scrutiny of an
attorney's past performance is highly deferential and viewed contextually, free from the
distorting effects of hindsight:
"'Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse sentence, and it is all too
easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time. Because of
the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy." There are countless ways to
provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.
[Citations omitted.]' 466 U.S. at 689.
"Under Strickland's second prong, defendants must show the deficient
performance of counsel was prejudicial. To do so, defendant must establish with
reasonable probability that the deficient performance affected the outcome of the
proceedings, based on the totality of the evidence. Edgar v. State, 294 Kan. 828, 838, 283
P.3d 152 (2012). '"A reasonable probability is a probability sufficient to undermine
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confidence in the outcome. A court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury."' 294 Kan. at 838." 2021 WL 1945151,
at *9.
We will apply this test to each of Thomas' claims in turn.
1. Thomas' counsel was not deficient for failing to argue a mistaken theory of felony
murder.
A jury convicted Thomas of aggravated robbery, in violation of K.S.A. 21-3427,
and first-degree murder, in violation of K.S.A. 21-3401. Under K.S.A. 21-3401, first-
degree murder is the killing of a human being either "intentionally and with
premeditation" or "in the commission of, attempt to commit, or flight from an inherently
dangerous felony as defined in K.S.A. 21-3436 and amendments thereto." Aggravated
robbery is considered an inherently dangerous felony when applying the felony murder
rule. K.S.A. 21-3436(a)(4).
The jury instructions allowed the jury to convict Thomas of first-degree murder
under either alternative means set forth in the statute—felony murder or killing
intentionally and with premeditation. The instruction also provided that if the jury did not
have a reasonable doubt that the State had proven murder in the first degree "'on either or
both theories,'" it must enter a verdict of guilty. Thomas, 302 Kan. at 445-46. The
Supreme Court upheld these instructions on appeal. 302 Kan. at 445-46.
Thomas first argues his trial counsel was ineffective for failing to argue he stole
the victim's personal property after the victim's death. Yet, as the district court explained,
Thomas is mistaken in his assertion that, to qualify as felony murder, the murder had to
have resulted from the victim being robbed or resisting a robbery:
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"The test for determining application of the felony-murder rule is stated in State
v. Cameron, 300 Kan. 384, 396-97, 329 [P.3d] 1158 (2014):
'In order to establish felony murder, the State must prove two causation
elements. First, the death must lie within the res gestae of the underlying
crime, which is defined in this context as acts committed before, during,
or after the happening of the principal occurrence, when those acts are so
closely connected with the principal occurrence as to form, in reality, a
part of the occurrence. Second, the felony and the homicide must have a
direct causal connection, which exists unless an extraordinary
intervening event supersedes the defendant's act and becomes the sole
legal cause of death.'
"When applying the felony murder rule, the felony and the victim's death do not
need to occur simultaneously, nor does the felony need to occur before the death. Time,
distance, and the causal relationship between the underlying felony and the killing are
factors to be considered in determining whether the killing is a part of the felony and
therefor[e] subject to the felony murder rule. State v. Jacques, 270 Kan. 173, 14 P.3d 409(2000).
"In this case, if Thomas' trial counsel had argued that the aggravated robbery
took place after Thomas murdered the victim, a jury could still convict Thomas of felony-
murder. The death occurred shortly before Thomas stole the victim's property, and thus,
became 'so closely connected with' the aggravated robbery. A direct causal connection is
also present. The time element is met because evidence presented at trial indicated that
the events happened quickly. The State admitted a copy of a recorded telephone call from
jail wherein Thomas was asked why he did not call the police. Thomas responded:
'Because it happened so fast. Yeah. It all happened so fast.' The distance factor is satisfied
because the murder and aggravated robbery happened in the same apartment."
Thomas does not challenge the district court's reasoning on appeal, nor does he point to
any facts or conclusions which require exploration at an evidentiary hearing. Like the
district court, we do not find that Thomas' counsel was deficient in failing to argue a
mistaken theory of felony murder, nor do we find there is a reasonable probability that, if
counsel had argued these facts, the result would have been different.
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2. Thomas' trial counsel did not fail to exclude "previously dismissed evidence."
Thomas' second claim, that his counsel failed to exclude "previously dismissed
evidence" from his second criminal case, has no basis in the record. As noted above, in
Thomas' original case, his counsel successfully suppressed the admission of incriminating
statements from Thomas' interrogation, leading to the dismissal of the criminal charges.
After the State refiled the criminal charges, his counsel filed another motion to suppress
these statements for Miranda violations, which the district court granted. The district
court correctly dismissed this ineffective assistance of counsel claim.
3. Thomas' trial counsel was not deficient in failing to challenge the refiled charges or
the evidence used to support probable cause in re-filing the charges.
Thomas mistakenly argues his counsel failed to challenge the evidence used to
support probable cause in the refiling of the criminal charges against him. His counsel did
challenge the use of the incriminating statements to support probable cause in the motion
to suppress items seized in execution of the search warrant. Further, while he generically
claims his attorney should have challenged the State's refiling of criminal charges against
him, he provides no legal or factual basis for any such a challenge. Once again, Thomas'
claim has no basis in the record and was correctly dismissed.
4. Thomas' trial counsel was not deficient for failing to cite the "fruits of the poisonous
tree" doctrine in a motion to suppress.
Thomas argues his counsel was ineffective for not citing the "fruits of the
poisonous tree doctrine" to suppress evidence in his second criminal case. The district
court suppressed Thomas' statements used to obtain a search warrant in both cases filed
against Thomas. Thomas presumably believes his counsel should have asked the district
court to also exclude evidence discovered as a result of the search warrant (a white t-shirt
and denim shorts with blood on them and a receipt showing Thomas bought a Ruger P94
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pistol and .40 caliber ammunition). On appeal, Thomas simply repeats his same
conclusory claim and ignores the district court's rationale for denying the claim below.
As the district court explained, the Supreme Court rejected Thomas' challenge of the
denial of his motion to suppress the items discovered as a result of the search warrant. In
his direct appeal, the Supreme Court analyzed the affidavit and found that even without
these statements, the affidavit contained sufficient evidence to support a finding of
probable cause. Thomas, 302 Kan. at 452-54. Thomas cannot use his K.S.A. 60-1507
motion as a substitute for a second appeal. Rule 183(c)(3).
We also find Thomas' counsel was not ineffective because the fruit of the
poisonous tree doctrine does not apply to exclude physical evidence that surfaced because
of an un-Mirandized, voluntary statement. See State v. Schultz, 289 Kan. 334, 343-44,
212 P.3d 150 (2009) (adopting United States v. Patane, 542 U.S. 630, 636, 124 S. Ct.
2620, 159 L. Ed. 2d 667 [2004]) ("'The Miranda rule is a prophylactic employed to
protect against violations of the Self-Incrimination Clause. The Self-Incrimination
Clause, however, is not implicated by the admission into evidence of the physical fruit of
a voluntary statement.'"). Thus, even if Thomas' counsel had cited the fruit of the
poisonous tree doctrine, the result would be unchanged. The motion, files, and records
conclusively show Thomas cannot establish he was prejudiced by this failure, so the
district court correctly dismissed his claim.
5. Thomas' trial counsel agreed with the State on the evidence presented.
Finally, Thomas argues his counsel was ineffective because his counsel "agreed
with the [S]tate regarding the evidence presented." Thomas does not explain what
evidence he is referring to or how a failure to agree would have changed the outcome in
his case. Thomas had to make more than conclusory contentions and either set forth an
evidentiary basis for his contentions or the evidentiary basis must have been evident in
the record to satisfy his burden to show his claim warrants an evidentiary hearing. See
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Sola-Morales, 300 Kan. at 881. He failed to satisfy this burden in his original motion, and
he makes no effort to satisfy it on appeal.
Our de novo review of the motions, files, and records of this case conclusively
establishes Thomas has no right to relief on any of his ineffective assistance of counsel
claims.
Affirmed.
***
WARNER, J., concurring: I join fully in the majority opinion's analysis of the merits
of Eddie Thomas' claims for ineffective assistance of counsel. I agree that Thomas'
K.S.A. 60-1507 motion does not allege constitutionally defective performance under
Strickland v. United States, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and
its Kansas progeny, or warrant an evidentiary hearing. I write separately to explain an
alternative reason for my decision—and to emphasize the critical importance of the
appellant's burden to convince us of error, particularly in the appellant's briefing.
The purpose of appealing a district court's decision to an appellate court is
twofold—to convince the court that an error has occurred and to convince us that the
error merits reversal or other relief. To this end, an appellant's brief must do more than
incidentally identify potential issues. It must provide an adequate discussion of a claim's
factual basis to lay a foundation for the appellate court's understanding. It must set forth
the governing legal lens for the court's analysis, whether based on a constitution, statute,
regulation, or judicial decision. And it must explain why, under that governing law, an
error occurred and why it requires appellate correction.
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This last persuasive step in the briefing process—the explanation and analysis—is
the crux of appellate practice. And though that step is essential in any appellate case, it is
particularly important in the context of an appeal from a summary denial of a K.S.A. 60-
1507 motion, where the district court found the issues could be resolved without an
evidentiary hearing. An appellate court does not defer to a district court's analysis, but the
appellant bears the burden to convince us that the district court erred—that the appellant's
claim requires an evidentiary hearing to evaluate its merits. Sola-Morales v. State, 300
Kan. 875, Syl. ¶ 3, 335 P.3d 1162 (2014); see K.S.A. 2020 Supp. 60-1507(b). After all,
the appellant is in the best position to make this showing, having personally experienced
the previous proceedings (including matters outside the record) and having filed the
K.S.A. 60-1507 motion in the first place.
In cases involving claims of ineffective assistance of counsel, this means that the
appellant's brief must persuade the court that there are proffered evidentiary questions,
unresolved by the transcripts and other court records, that could show (1) the previous
defense counsel provided constitutionally deficient representation and (2) this deficient
representation prejudiced the outcome of the earlier proceeding in a meaningful way. See
Khalil-Alsalaami v. State, 313 Kan. ___, ___ P.3d ___, 2021 WL 1945151, at *9 (2021).
Judicial scrutiny of trial attorneys' performance, in proceedings often several years after
the fact, is highly deferential; we presume that defense counsel acted reasonably. State v.
Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). It is the appellant's role to convince us
otherwise.
In my view, Thomas has not made this showing. As the majority points out,
Thomas' brief merely indicates that his K.S.A. 60-1507 motion "alleges facts and
conclusions which are not readily available in the record" and then summarily reiterates
the allegations in that motion. The brief does not explain the substance of the evidence
that Thomas would offer during a hearing or indicate why this information is different
from the matters contained in the record. Nor does it provide any explanation as to how
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this evidence would show Thomas' previous attorney's actions were unreasonable or how
those actions affected the outcome of the trial. In short, the brief provides no explanation
as to why this court should rule in his favor. On this basis, I would find that Thomas fails
to apprise us of error.
The majority opinion takes it upon itself to divine the analytical basis of Thomas'
summary allegations, largely based on the district court's well-reasoned opinion and the
State's response brief. There certainly are justifications for such an effort, ranging from
promoting judicial economy to achieving finality regarding Thomas' claims. But the
danger to this approach is that the court runs the risk of misunderstanding the party's
argument or deciding the case on a point that was never intended. It causes the court to
rely more heavily on the district court's opinion than our standard of review warrants.
And it converts the court's role from one of reviewing arbiter to one of inquisitor.
All that said, I am confident in this case that the majority opinion accurately
depicts the assertions in Thomas' K.S.A. 60-1507 motion and that the majority's analysis
of the merits of that motion is sound. I therefore join the opinion. But appellants and their
counsel should be wary of making summary assertions or surface-level arguments
without explanation. Other panels might more rigidly adhere to the principle that it is the
responsibility of the appellant—not the appellate court—to fully develop an argument
and thereby persuade the court of error.
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