Ross v. State ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 126,792
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
RAYMOND ROSS JR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Saline District Court; JARED B. JOHNSON, judge. Submitted without oral argument.
Opinion filed July 12, 2024. Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Ethan Zipf-Sigler, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.
Before HURST, P.J., GREEN and ATCHESON, JJ.
PER CURIAM: Raymond Ross Jr. appeals the summary denial of his K.S.A. 60-
1507 motion in which he alleged ineffective assistance of trial counsel. Ross argues that
contrary to the district court's ruling, he presented substantial issues entitling him to an
evidentiary hearing on his motion. Nevertheless, there are several problems with Ross'
arguments. First, we note that the initial problem with Ross' arguments is that he fails to
assert something more than conclusory contentions, which is necessary to obtain an
evidentiary hearing. See Breedlove v. State, 310 Kan. 56, 66, 445 P.3d 1101 (2019).
Here, he attempts to persuade by his mere assertions and repetitions. Because he offers no
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reasons in support for his assertions and repetitions, they are incapable of persuading
anyone who does not already agree with them.
Second, he contends that his trial attorney provided him with ineffective assistance
of counsel because she failed to call certain witnesses during his trial. But he fails to
explain how these alleged witnesses' testimony would have helped his defense. Finally,
he failed to show how his attorney's representation of him prejudiced the outcome of his
trial. For these reasons, we affirm the district court's summary denial of his motion.
BACKGROUND
As explained in Ross' direct appeal—State v. Ross, No. 120,322, 2020 WL
4555789 (Kan. App. 2020) (unpublished opinion)—a jury convicted Ross of committing
one count of aggravated indecent liberties with a child, two counts of criminal sodomy,
one count of indecent liberties with a child, and two counts of commercial sexual
exploitation of a child. Ross victimized a 15-year-old girl by sexually abusing her over
the course of six days in December 2016 and trafficking her at least once in exchange for
methamphetamine the two of them shared.
In his direct appeal, Ross' primary argument was that the district court erred by
denying his motion requiring the victim to submit to an independent psychological
evaluation. Yet, we rejected Ross' argument that our Supreme Court's precedent in State
v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979), required the district court to grant Ross'
motion. Instead, we held that the district court reasonably weighed the six nonexhaustive
factors outlined in State v. McCune, 299 Kan. 1216, 1231, 330 P.3d 1107 (2014), for
determining whether compelling reasons exist to grant the independent psychological
evaluation of an alleged sex abuse victim. Ross, 2020 WL 4555789, at *3-6. Also, while
addressing Ross' argument that his motion was not a fishing expedition under the fifth
Gregg factor because he needed the independent psychological evaluation "to present a
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full and complete defense," we pointed to the victim's jury trial testimony. 2020 WL
4555789, at *5. We held that Ross' argument that he needed an independent
psychological evaluation of the victim to present a full and complete defense was flawed
for the following reasons:
"Ross was able to argue that [the victim] was not a compelling witness before the jury.
Ross pointed out that [the victim] was using methamphetamine, made prior allegations of
rape against others, had multiple mental health diagnoses, self-reported short-term
memory problems, and had inconsistencies between her testimony and her earlier
statements. Even without an independent evaluation, Ross was able to make his points to
the jury." 2020 WL 4555789, at *5.
A little less than a year after our Supreme Court denied Ross' petition for review
of this direct appeal, Ross, acting pro se, moved for relief under K.S.A. 60-1507(a). Ross
argued that his trial counsel's representation was so deficient that she violated his right to
effective assistance of counsel under the Sixth Amendment to the United States
Constitution as outlined by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). So, Ross asked for an
evidentiary hearing on his motion.
In his motion, Ross explained how his trial counsel's deficient performance altered
the outcome of his trial for the following reasons: (1) because his trial counsel never
called L.H., B.R., V.R., D.R, and Y.P. as witnesses to undermine the victim's credibility;
(2) because his trial counsel never used a "forensic certified psychiatrist" to evaluate and
interview the victim; and (3) because his trial counsel never used an "expert witness
concerning the effects of methamphetamine on [the] psychologically troubled [victim]."
In his motion, Ross also argued that "the District Court violated his U.S. Constitutional
right to a speedy trial" under the Sixth Amendment to the United States Constitution by
forcing him to proceed pro se. According to Ross, his original attorney "created a conflict
of interest by yelling and threatening" him.
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The State responded that the district court should summarily deny Ross' K.S.A.
60-1507 motion without an evidentiary hearing. When responding to each of Ross'
arguments, it contended that his arguments were unpersuasive for many reasons.
The State further argued that neither the district court nor Ross' original counsel
violated Ross' speedy trial rights. Rather, it asserted Ross' argument involved an issue of
his own making when about a week before his jury trial, he refused to work with his
original counsel, refused to proceed pro se, and insisted that his trial occur as scheduled.
Essentially, Ross was upset that any attorney that the district court appointed could not be
ready to competently represent him by his trial that was scheduled to occur in about a
week. Hence, in his K.S.A. 60-1507 motion, Ross argued that the district court made him
choose between waiving his speedy trial right and waiving his right to counsel. Of note,
Ross' jury trial ultimately did not occur as scheduled for two reasons: (1) because the
district court ordered Ross to undergo a competency evaluation, and (2) because the
district court ordered new counsel, who was his trial counsel, to represent Ross.
Eventually, the district court summarily denied Ross' K.S.A. 60-1507 motion,
finding each of his arguments conclusory. As for Ross' arguments about the potential lay
witnesses that his trial counsel failed to use, the district court additionally explained that
Ross "fail[ed] to establish the evidence would be admissible and that it [met] the
prejudice prong of Strickland." It emphasized that Ross' arguments about what the
witnesses might have testified about concerned the victim's credibility. It emphasized that
his trial counsel "elicited testimony about [the victim's] drug use, short-term memory
problems, mental health diagnosis, prior inconsistent statements, and that the victim lied
about her age." Then, the district court ruled that in light of his trial counsel's cross-
examination of the victim, Ross could not prove that his trial counsel was ineffective for
failing to call the disputed lay witnesses. Likewise, the district court found that Ross'
arguments about the disputed expert witnesses allegedly needed for the victim's
psychological and for substance abuse evaluations "fail[ed] to detail what information or
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position an expert would [have] provide[d] or how it would [have] change[d] the
outcome of the trial." Finally, regarding Ross' speedy trial argument, the district court
found that Ross' argument was inadequately briefed.
Ross timely appeals the summary denial of his K.S.A. 60-1507 motion.
ANALYSIS
In criminal cases, the Sixth Amendment guarantees that "the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defence." The right to counsel is
applicable to the states through the Fourteenth Amendment to the United States
Constitution. Also, this right guarantees a criminal defendant the right to effective
assistance of counsel. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014)
(citing Strickland, 466 U.S. at 687).
For a criminal defendant to prove that his or her counsel's performance was
constitutionally deficient under the Sixth Amendment, the defendant must meet his or her
burden under Strickland's two-prong ineffective assistance of counsel test. Under that
test, the defendant must establish the following: (1) that his or her counsel's
representation was constitutionally deficient under the totality of the circumstances and
(2) that his or her counsel's deficient representation resulted in prejudice. Sola-Morales,
300 Kan. at 882-83 (citing Strickland, 466 U.S. at 687). The term "totality of the
circumstances" under Strickland's first prong means whether the defense counsel's
representation fell below an objective standard of reasonableness. Khalil-Alsalaami v.
State, 313 Kan. 472, 485, 486 P.3d 1216 (2021). The term "prejudice" under Strickland's
second prong requires the defendant to prove "that there is a reasonable probability the
jury would have reached a different result absent the deficient performance." Sola-
Morales, 300 Kan. at 882-83 (citing Strickland, 466 U.S. at 687).
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When we analyze a defense counsel's performance, we strongly presume that the
defense counsel's conduct fell within the wide range of reasonable professional
assistance. Khalil-Alsalaami, 313 Kan. at 486. Thus, a criminal defendant trying to
establish an ineffective assistance of counsel must overcome a strong presumption that
the counsel's disputed decision was sound trial strategy. 313 Kan. at 486. As for the
K.S.A. 60-1507 movant's burden of proof, it is a well-known rule that for a criminal
defendant to get an evidentiary hearing on his or her K.S.A. 60-1507 motion, the
defendant must "make more than conclusory contentions and must state an evidentiary
basis in support of those claims or some evidentiary support must appear in the record."
Breedlove, 310 Kan. at 66. If the defendant fails to make more than conclusory claims
without evidentiary support, then the district court may summarily deny the defendant's
K.S.A. 60-1507 motion without a hearing. An evidentiary hearing is not an opportunity
for a movant to conduct a fishing expedition so that he or she "might catch a fact that
could lead to something favorable." Stewart v. State, 310 Kan. 39, 54, 444 P.3d 955(2019).
Significantly, when analyzing the summary denial of a K.S.A. 60-1507 motion, we
exercise unlimited review over the district court's decision because we have the same
motions, files, and records that the district court reviewed when it denied the movant's
motion. Breedlove, 310 Kan. at 59.
Here, Ross requested relief from the alleged ineffective assistance of his trial
counsel under K.S.A. 60-1507(a). This provision states that a movant may ask the court
"to vacate, set aside or correct a sentence" whenever the movant establishes that "the
sentence was imposed in violation of the constitution or laws of the United States."
K.S.A. 2023 Supp. 60-1507(a). Ross argues that the district court erred by denying his
K.S.A. 60-1507 motion because the motions, files, and records of his case definitively
establish that his trial counsel's deficient representation violated his right to a fair trial
under the Sixth Amendment. Indeed, he contends that the evidence of his trial counsel's
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ineffectiveness is so strong that we should not bother reversing and remanding to the
district court for an evidentiary hearing on his K.S.A. 60-1507 motion. Rather, we should
go ahead and reverse his convictions and remand his case for a new trial.
In any case, Ross makes the same ineffective assistance of counsel arguments on
appeal that he did before the district court. In other words, he argues that his trial
counsel's representation was constitutionally deficient for the following reasons: (1)
because his trial counsel did not call L.H., B.R., V.R., D.R., and Y.P. to testify to
undermine the victim's credibility about previous inconsistent statements; (2) because his
trial counsel did not use a forensic certified psychiatrist to evaluate the victim to
undermine the victim's credibility because of her mental state; and (3) because his trial
counsel did not use an expert witness on methamphetamine to undermine the victim's
credibility given her substance abuse issues. Also, Ross still argues that in his underlying
criminal case, the district court made him feel as if he had to proceed pro se or waive his
speedy trial rights.
The State's response to Ross' arguments mirrors the district court's findings and
rulings in its order summarily denying Ross' K.S.A. 60-1507 motion. It largely argues
that Ross' arguments are conclusory, not supported by the record, or procedurally flawed.
So, the State argues that we should affirm the district court's summary denial of Ross'
K.S.A. 60-1507 motion.
Simply put, we find the State's arguments persuasive. To begin with, although
Ross asserts that his trial counsel should have called B.R., V.R., Y.P., and D.R. to testify
at his trial, his only argument is that those witnesses could have undermined the victim's
credibility. Concerning L.H., Ross does mention that had L.H. testified about giving the
victim gas cards and taking her to church, L.H.'s testimony would have contradicted an
earlier statement that the victim had made to the police. Then, Ross asserts that had the
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preceding witnesses testified about the victim's credibility, "the outcome of the trial could
have been very different." (Emphasis added.)
Yet, by not proffering any specific evidence about what B.R., V.R., Y.P., and D.R.
would testify about, it follows that Ross has not established (1) that his trial counsel was
ineffective or (2) that his counsel's deficient performance prejudiced his defense. Rather,
by simply mentioning their names without additional analysis, Ross has waived and
abandoned any argument that he may have made about his trial counsel not calling the
disputed lay witnesses to testify at his jury trial to undermine the victim's credibility. See
State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (holding that an issue not briefed
is deemed waived or abandoned). So, we hold that Ross has waived and abandoned all of
his arguments about his trial counsel's performance as it concerns her failure to call B.R.,
V.R., Y.P., and D.R. as witnesses in his trial.
Turning to Ross' specific argument about his trial counsel not calling L.H. to
testify, we further hold that Ross' trial record contradicts Ross' argument. Ross' main
complaint about his trial counsel's failure to call L.H. to testify was that L.H. could testify
about taking the victim to church and about giving her gas cards. Ross contends that this
would have contradicted the victim's statement about telling the police these things had
not happened. But in making this argument, Ross never explains why his trial counsel's
failure to have L.H. testify about taking the victim to church and giving her gas cards
would have changed the outcome of his trial. In addition, as stressed by the district court
in its order as well as this court in Ross' direct appeal, at Ross' jury trial, the victim "was
subject to cross examination and trial counsel attacked her credibility" on her
methamphetamine use, her previous allegations of rape, her mental health problems, her
memory problems, and her previous inconsistent statements. As a result, even if we
assumed for the sake of argument that trial counsel's failure to call L.H. as a witness was
error, Ross has not proven that this error was prejudicial.
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As for Ross' arguments involving his trial counsel's failure to rely on an expert
forensic certified psychiatrist and an expert on methamphetamine, we encounter related
problems. Ross' entire argument why his trial counsel was ineffective for failing to rely
on an expert forensic certified psychiatrist is that this expert "could testify to the reasons
why there were inconsistencies" with some of the victim's statements to the police as
compared to her preliminary hearing testimony. Meanwhile, Ross' entire argument why
his trial counsel was ineffective for failing to rely on an expert on methamphetamine is
that this expert could have testified about how drug use affects "the reliability of one's
memory."
But in making those arguments, Ross does not explain how either expert's
testimony would have changed the outcome of his trial. He just contends that his trial
counsel's alleged failings prejudiced him without any additional analysis. Hence, even
assuming that Ross' trial counsel erred by failing to call the disputed expert witnesses,
Ross has inadequately briefed how this error prejudiced his defense as required under the
second prong of the Strickland test. And once again, at trial, Ross cross-examined the
victim about her drug use problems, short-term memory problems, mental health
problems, and previous inconsistent statements. So, the jury convicted Ross knowing that
the victim had credibility issues. As a result, even if Ross had fully addressed how his
trial counsel's failure to rely on the experts prejudiced him, it is readily apparent that
Ross' trial counsel's failure to rely on the experts had no bearing on the jury's guilty
verdicts.
In addition, we stress that Ross' trial counsel moved for the victim to undergo an
independent psychological evaluation more than four months before his jury trial. But the
district court denied that motion. Then, when Ross challenged the district court's ruling in
his direct appeal, we rejected his argument. Ross, 2020 WL 4555789, at *3-6. Ross has
never contended that his trial counsel failed to adequately argue his motion for the victim
to undergo an independent psychological evaluation. Thus, we hold that Ross' trial
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counsel effectively represented Ross as it concerns trying to get an expert forensic
certified psychiatrist to evaluate the victim.
Finally, Ross' argument that he had "no choice but to waive his right to a speedy
trial because of the direct pressure the district court put upon him" was not properly
before the district court and is not properly before us. As we explained when reviewing
the background of this case, about a week before his scheduled jury trial, Ross refused to
work with his original counsel, refused to proceed pro se, and insisted that his trial occur
as scheduled in about a week. In the end, the district court continued Ross' jury trial so he
could undergo a competency evaluation, during which time the district court also
appointed Ross the trial counsel at issue in this appeal.
As a result, Ross' speedy trial argument does not involve his trial counsel's
performance. Rather, it involves a potential trial error—whether the district court violated
his speedy trial rights. But generally, a defendant must raise all arguments concerning
trial errors in his or her direct appeal. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365(2011). Additionally, Kansas Supreme Court Rule 183(c)(3) (2024 Kan. S. Ct. R. at 240)
states:
"A proceeding under K.S.A. 60-1507 ordinarily may not be used as a substitute
for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere
trial errors must be corrected by direct appeal, but trial errors affecting constitutional
rights may be raised even though the error could have been raised on appeal, provided
exceptional circumstances excuse the failure to appeal."
Thus, to summarize Ross' speedy trial argument, it involves a constitutional trial
error raised in a K.S.A. 60-1507 motion. Nevertheless, in his appellate brief, Ross never
contends that there are exceptional circumstances allowing him to raise this alleged
constitutional trial error for the first time in his motion. In turn, Ross has used his motion
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to collaterally attack a trial error issue that he needed to raise in his direct appeal. So,
under Supreme Court Rule 183(c)(3), we reject Ross' argument.
Affirmed.
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