Netherland v. State ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,065
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JIMMY NETHERLAND,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed July 22, 2022.
Affirmed.
Matthew R. Williams, of Topeka, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Jimmy Netherland was one of multiple defendants implicated in the
murder of a woman during a robbery. A jury convicted Netherland of multiple felony
offenses including first-degree felony murder. Following his direct appeal, Netherland
filed a K.S.A. 60-1507 motion alleging, in part, that his trial counsel was ineffective. The
district court held an evidentiary hearing and denied relief on the K.S.A. 60-1507 motion.
Netherland appeals. After reviewing the arguments raised and the record on appeal, we
affirm the district court's decision for the reasons stated below.
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FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Netherland was convicted of first-degree felony murder, attempted
aggravated robbery, aggravated robbery, conspiracy to commit aggravated robbery,
aggravated battery, and attempted burglary of a motor vehicle after a six-day trial during
which he was represented by attorney Linda Eckelman. The crimes were committed in
July 2011. Netherland appealed, and the Kansas Supreme Court detailed the facts of the
case in its decision affirming his convictions. State v. Netherland, 305 Kan. 167, 168, 379
P.3d 1117 (2016).
Within a year of his convictions becoming final, Netherland filed a pro se motion
to correct illegal sentence pursuant to K.S.A. 22-3504 or in the alternative K.S.A. 60-
1507. The district court summarily denied the motion on both K.S.A. 60-1507 and K.S.A.
22-3504 grounds. Although Netherland initially appealed this denial, he later sought
dismissal of his appeal by the appellate courts on grounds not relevant to this discussion.
Netherland then filed a new pro se K.S.A. 60-1507 motion on September 29, 2017,
alleging six claims of ineffective assistance of counsel against his trial counsel,
Eckelman, and one claim of newly discovered evidence:
"(a) Mr. Netherland's Constitutional right to effective assistance of counsel was
violated when trial counsel failed to present his alibi [defense] [of Blake Miller].
"(b) Mr. Netherland's Constitutional right to effective assistance of counsel was
violated when trial counsel failed to present exculpatory evidence.
"(c) Newly discovered evidence that will prove Mr. Netherland is innocent of
homicide.
"(d) Mr. Netherland's Constitutional right to effective assistance of counsel was
violated when trial counsel failed to hire an expert on phone records.
"(e) Mr. Netherland's Constitutional right to effective assistance of counsel was
violated when trial counsel failed to call his mother, Mrs. Thelma Netherland, and his
sister, Shayonna Netherland to the stand in his [defense].
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"(f) Mr. Netherland's Constitutional right to effective assistance of counsel was
violated when trial counsel failed to investigate the many city cameras surrounding
Topeka.
"(g) Mr. Netherland's Constitutional right to effective assistance of counsel was
violated when counsel refused to withdraw from the case."
The district court held an evidentiary hearing in October 2019, during which
Netherland's new appointed counsel called three witnesses and Netherland to testify.
Peter Conley testified he was Eckelman's intern at the time of Netherland's trial. He stated
during that time, Eckelman had a heavy caseload and was slowing down on her caseload
in preparation for her retirement. He also stated that although he had recently noticed in
Eckelman "a progression of some mental health issues or dementia," he did not notice
anything like that, nor was he concerned about her mental competency, throughout the
period of Netherland's trial.
Jessica Stoffer, a private investigator hired by Eckelman before and during
Netherland's trial, also testified that Eckelman had a heavy caseload and that Eckelman
had a lot of help. Stoffer stated that Eckelman had issues with her diminishing vision and
some physical effects of diabetes, but Stoffer did not notice any cognitive decline during
the trial period. Stoffer also testified about her investigation prior to Netherland's trial
into possible alibi witnesses and her surprise when Eckelman did not present alibi or
alternative suspect evidence at trial.
Eckelman testified at the 2019 evidentiary hearing that she did not have any
memory or cognitive issues in 2013. She also testified that she did not provide any
alternative line of defense in the Netherland trial because her strategy was to show that
the State did not meet its burden of proof. However, Netherland's counsel raised during
the hearing that Eckelman's current condition caused her to be suggestible, and she was
offering inconsistent testimony about the evidence she provided to him. In a bench
discussion with the district court, Netherland's counsel raised this issue and both parties
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agreed to submit a joint stipulation of facts regarding the inconsistencies in Eckelman's
testimony.
The State called Chris Biggs to testify at the evidentiary hearing. Biggs was the
prosecutor during Netherland's trial, and he testified that he did not believe Eckelman's
mental acuity was diminished, and he thought she was a "zealous, effective advocate"
during that trial.
Netherland testified that he provided alibi information to Eckelman when they
were preparing for trial and that Eckelman stated she intended to put on more than one
alibi witness. Netherland claimed Eckelman planned to call his friend, Blake Miller, his
mother, Thelma, and his sister, Shayonna.
The district court, having heard the testimony of witnesses and reviewing the
closing briefs, found that Eckelman's performance was not deficient and that her
performance did not prejudice the defense or deprive Netherland of a fair trial. The
district court also denied all of Netherland's other claims—issues raised in Netherland's
written K.S.A. 60-1507 motion but not in the instant appeal—and found that none of
them would have changed the result of the trial. Ultimately, the district court denied
Netherland's K.S.A. 60-1507 motion.
Netherland timely filed a notice of appeal, and again new counsel was appointed
to represent him. After some excused delays related to new counsel's military service and
other unexplained delays, Netherland's appellant's brief was untimely filed. On February
17, 2022, this court issued an order directing Netherland to submit a corrected brief that
fully complied with Supreme Court Rule 6.02(a) (2022 Kan. S. Ct. R. at 35). Netherland
did not file a corrected brief by the assigned due date, even after seeking and receiving an
extension of time. This court issued an order on March 22, 2022, stating that "appellant's
brief will be retained but any fact without a citation to the volume and page number of
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the record on appeal will not be considered as supported by the record." Therefore,
statements of facts with inadequate citations in the appellant's brief are not considered in
this decision.
THE DISTRICT COURT DID NOT ERR IN
DENYING NETHERLAND'S K.S.A. 60-1507 MOTION
Netherland argues the district court erred in denying his K.S.A. 60-1507 motion.
He claims on appeal that he was entitled to 60-1507 relief because Eckelman was
ineffective as his trial counsel when she failed to call alibi witnesses, which resulted from
her "failing mental faculties during the trial."
Standard of Review
When, as here, the district court conducts an evidentiary hearing pursuant to a
K.S.A. 60-1507 motion, the appellate court applies a mixed standard of review. We
review the district court's factual findings using a substantial competent evidence
standard. Substantial competent evidence is that substantive and relevant evidence that a
reasonable person could accept as being adequate to support a conclusion. Khalil-
Alsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216 (2021); Geer v. Eby, 309 Kan. 182,
190, 432 P.3d 1001 (2019). When reviewing the record for substantial competent
evidence, the appellate court does not reweigh evidence, pass on the credibility of
witnesses, or resolve conflicts in the evidence. Khalil-Alsalaami, 313 Kan. at 486-87.
Appellate courts review the district court's legal conclusions based on those facts
applying a de novo standard of review. 313 Kan. at 486.
Legal Standard
Netherland's appeal centers on his claims of ineffective assistance of trial counsel,
which are analyzed under the two-prong test articulated in Strickland v. Washington, 466
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U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by the Kansas
Supreme Court in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985).
Under the first prong, the defendant must show that defense counsel's performance was
deficient. If successful, the court moves to the second prong and determines whether
there is a reasonable probability that, absent defense counsel's unprofessional errors, the
result would have been different. Khalil-Alsalaami, 313 Kan. at 485 (citing Strickland,
466 U.S. at 694).
To demonstrate deficient performance under the first prong, "'the defendant must
show that defense counsel's representation fell below an objective standard of
reasonableness.'" Khalil-Alsalaami, 313 Kan. at 485 (quoting Strickland, 466 U.S. at
688). Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel must be highly deferential. A fair assessment of counsel's performance requires
that every effort be made to eliminate the distorting effects of hindsight, reconstruct the
circumstances surrounding the challenged conduct, and evaluate the conduct from
counsel's perspective at the time. Khalil-Alsalaami, 313 Kan. 485-86 (quoting Strickland,
466 U.S. at 689). A court considering a claim of ineffective assistance of counsel must
strongly presume that defense counsel's conduct fell within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, counsel's action "'might be considered sound trial strategy.'" 313 Kan.
at 486 (quoting Strickland, 466 U.S. at 689).
Th second prong of the Strickland analysis requires the defendant to establish that
defense counsel's deficient performance was prejudicial. To establish such prejudice, the
defendant must show "with reasonable probability that the deficient performance affected
the outcome of the proceedings, based on the totality of the evidence." 313 Kan. at 486
(citing Edgar v. State, 294 Kan. 828, 838, 283 P.3d 152 [2012]). "'A reasonable
probability is a probability sufficient to undermine confidence in the outcome. A court
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hearing an ineffectiveness claim must consider the totality of the evidence before the
judge or jury.'" Khalil-Alsalaami, 313 Kan. at 486 (quoting Edgar, 294 Kan. at 838).
Analysis
On appeal, Netherland argues only three of the seven claims originally raised in
his K.S.A. 60-1507 motion. In particular, Netherland did not address claims (b), (c), (d),
and (g) of the K.S.A. 60-1507 motion during the evidentiary hearing, and he does not
argue them on appeal. The claims that Netherland raised in his motion before the district
court but did not brief on appeal are deemed waived and are not considered herein. See
State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (issues not briefed are deemed
waived or abandoned). The three claims he does argue can be grouped into two primary
concerns: trial counsel's failure to call alibi witnesses, and trial counsel's purported
mental decline. Each contention is addressed separately.
Counsel's Failure to Call Alibi Witnesses
Netherland argues, in part, that Eckelman was ineffective as counsel for failing to
call his anticipated alibi witnesses at trial. In Netherland's original K.S.A. 60-1507
motion, he pinpoints in his claims (a) and (e) that Miller, Thelma, and Shayonna were the
potential alibi witnesses who were not called. Netherland also testified during the
evidentiary hearing that he had discussed these three possible alibi witnesses with
Eckelman.
But Netherland did not present any of the purported alibi witnesses at the
evidentiary hearing. Absent any testimony from the suggested witnesses, Netherland
failed to provide any evidence to demonstrate how the alibi defense or the testimony
establishing Netherland's whereabouts from Miller, or his family members, would have
changed the outcome of the trial. In fact, Netherland stated in his K.S.A. 60-1507 motion
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only that the testimony of his mother and sister "could have" impeached the State's
witnesses regarding his whereabouts on the night of the crime, rather than definitively
presenting an alibi defense. His brief also admits it is "disputed whether Thelma and
[Shayonna] Netherland's testimony would be hearsay or admissible . . . ." Mere
speculation that a witness' testimony could have possibly changed the outcome of the jury
verdict is not sufficient to satisfy the prejudice prong of the Strickland test. See Mullins v.
State, 30 Kan. App. 2d 711, 719, 46 P.3d 1222 (2002) (citing State v. Gardner, 272 Kan.
706, 708, 36 P.3d 229 [2001]); see also State v. Morgan, No. 109,099, 2014 WL
5609935, at *8 (Kan. App. 2014) (unpublished opinion) (applying second Strickland
prong and finding this court cannot base judgment on speculation).
Contrary to Netherland's suggested assumption, the district court noted the State's
response to Netherland's notice of alibi during trial and its motion in limine regarding
third party evidence could have deterred Eckelman from presenting Miller as an alibi
witness. In fact, Netherland's appellate brief admits "[t]here is some evidence to support
why [c]ounsel might make a strategic decision not to call Blake Miller to testify." Also
notably, Stoffer, Netherland's witness who briefly interacted with Miller, was unable to
present factual evidence and provided only speculative testimony that Miller's testimony
might have provided an alibi defense.
Netherland also contends in his brief that because "there is not a way to know why
trial counsel did not call alibi witnesses which would have contradicted the State's
witnesses it must be assumed that the outcome of the case would have been different if
the alibi witnesses had been called." (Emphasis added.) But this is an incorrect statement
of Netherland's legal burden. He bears the burden of proving prejudice, and "'[w]hen
there are blanks in the record, appellate courts do not fill them in by making assumptions
favoring the party claiming error in the district court.'" Morgan, 2014 WL 5609935, at *8
(quoting Harman v. State, No. 108,478, 2013 WL 3792407, at *1 [Kan. App. 2013]
[unpublished opinion]).
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Based on these facts, the district court held: "Netherland has not presented any
evidence regarding testimony of his 'alibi' witnesses which would convince this court that
the outcome would have been different if Eckelman had called the alibi witnesses." This
court agrees.
The Supreme Court emphasized in Strickland the significance of the prejudice
prong of the ineffective assistance of counsel test by stating that such claim "could be
disposed of solely on that ground if the defendant failed to establish that he or she
suffered prejudice." Edgar, 294 Kan. at 843. In Strickland, the Supreme Court held:
"Although we have discussed the performance component of an ineffectiveness
claim prior to the prejudice component, there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the same order or even to address
both components of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed. Courts should strive to ensure
that ineffectiveness claims not become so burdensome to defense counsel that the entire
criminal justice system suffers as a result." 466 U.S. at 697.
Therefore, Netherland's failure to demonstrate prejudice is itself sufficient for this court
to decide Netherland's claim regarding the alibi witnesses.
Even if this were not so, Netherland also fails to support his allegation that
Eckelman's performance fell below an objective standard of reasonableness. Her decision
to not call the alibi witnesses must be given a "heavy measure of deference" and "directly
assessed for reasonableness in all circumstances." See Strickland, 466 U.S. at 691.
Because Netherland concedes Eckelman may have decided not to call Miller as a trial
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strategy and presented no evidence of how his family witnesses' testimony may have
affected the case, Netherland simply failed to overcome the strong presumption that,
under the circumstances, counsel's action might be considered sound trial strategy.
Netherland's claims that Eckelman's failure to call alibi witnesses constitutes ineffective
assistance of counsel thus misses the mark under both prongs of the Strickland analysis.
Counsel's Alleged Cognitive Decline
Netherland also claims that Eckelman was ineffective because she was suffering
from declining mental cognition during his trial. Yet, Netherland has presented no
evidence in the record on appeal showing that Eckelman was experiencing a decline in
her mental cognition during his trial. On the contrary, the witnesses' testimony extracted
during Netherland's K.S.A. 60-1507 hearing largely noted Eckelman's performance as
trial counsel in 2013 appeared generally unaltered from the witnesses' observances of her
usual performance.
Throughout his appellate brief, Netherland seeks to make phantom connections
between Eckelman's condition during the 2019 evidentiary hearing and her mental state
during the period of Netherland's 2013 trial, using only unsubstantiated suggestions. For
example, Netherland proposes Conley's testimony supports that Eckelman was "not
taking care of her diabetes" during the trial and that the side effects of diabetes somehow
affected her mental cognition. But the transcript shows that Conley specifically testified
that he did not know whether her diabetes played a role in the slowing of her practice and
that he "wouldn't say [he] noticed" any signs of Eckelman's alleged cognitive impairment
during Netherland's trial. Conley's testimony clearly differentiated between Eckelman's
current cognitive condition and her characteristics in 2013, and Conley had no concerns
regarding dementia at the time of the 2013 trial.
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Netherland also claims that Stoffer testified Eckelman's diabetes affected her
performance during the trial period. But again, the hearing transcript reflects that Stoffer's
testimony was in fact contrary to Netherland's claims, and rather it shows Stoffer stating
she did not notice any cognitive decline in Eckelman—only that Eckelman at times had
to deal with the side effects of diabetes, but "she appeared to have it under control."
Again, Netherland makes unsubstantiated assumptions, but he fails to provide any actual
evidence supporting the presumption that Eckelman was suffering any mental cognitive
decline which would have rendered her 2013 performance deficient.
The district court found it apparent from Eckelman's 2019 testimony that she had
"mental decline due to health issues." Yet, the district court found that Eckelman did not
suffer from mental decline or deficiencies at the time she represented Netherland at trial.
The district judge who presided over the evidentiary hearing also presided over the trial
and stated in her decision on the 60-1507 motion that she "observed the diligence and
tenacity of Eckelman, both [during] pretrial and during the trial. [The] court was not
aware of any mental issues or health issues that affected Eckelman's performance during
her representation of Netherland." Likewise, in Netherland's direct appeal following
conviction, the Kansas Supreme Court characterized Eckelman's defense as "aggressively
challenged" specific evidence submitted by the State, and she "aggressively attack[ed the]
weaknesses in the State's case." Netherland, 305 Kan. at 172, 178.
As the district court found in its decision, Eckelman's mental health issues at the
time of the evidentiary hearing did render it difficult to determine the trial strategy she
employed in defending Netherland during trial. But, it is also equally problematic to
accept on its face Netherland's suggested fiction: that because no other explanation could
be given for Eckelman's actions, it must solely be attributable to the decline of
Eckelman's mental faculties. Conversely to Netherland's suggestions, the record on
appeal shows that throughout the evidentiary hearing, various legal reasons were
proffered by the State as to why a reasonable defense counsel would not have called the
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witnesses during a criminal trial. And again, Netherland concedes that"[i]t is reasonable
to presume [Eckelman] determined Miller would not benefit the defense and decided not
to call him as a witness." Netherland also admits it is "disputed whether Thelma and
[Shayonna] Netherland's testimony would be hearsay or admissible . . . ." As noted
above, Netherland simply provides no evidence to support his theory that Eckelmen's
decision to withhold alibi witnesses was a result of some nebulous mental condition.
Adhering to Strickland, Eckelman's decision to not call the witnesses provided by
Netherland should be given a "heavy measure of deference" and "directly assessed for
reasonableness in all circumstances." See 466 U.S. at 691. Because Netherland did not
present evidence to support his claim that Eckelman's performance was unreasonable
under the circumstances, he fails to overcome the strong presumption that, under the
circumstances, counsel's action might be considered sound trial strategy.
Therefore, because Netherland fails to support his claim that Eckelman's
performance was deficient due to her alleged deteriorated mental capacities, Netherland
fails under the first prong of the Strickland test. Consequently, the second prong of the
test need not be explored by this court. As a result, Netherland did not meet his burden of
establishing ineffective assistance of counsel due to alleged declining mental acuity.
The district court correctly found Netherland failed to show that Eckelman's
representation of Netherland fell below an objective standard of reasonableness or that
Eckelman provided inefficient assistance of counsel because of her declining mental
capacity. The district court's findings are supported by substantial competent evidence,
and it did not err in denying Netherland's K.S.A. 60-1507 motion.
Affirmed.
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