Kenfield v. State , 384 Mont. 322 ( 2016 )

08/16/2016
DA 16-0035
Case Number: DA 16-0035
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 197
KAL C. KENFIELD,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Liberty, Cause No. DV-12-12
Honorable Jon A. Oldenburg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kal C. Kenfield (Self-Represented), Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jon Bennion, Deputy
Attorney General, Helena, Montana
Hugh B. Brown, Liberty County Attorney, Chester, Montana
Submitted on Briefs: June 15, 2016
Decided: August 16, 2016
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Kal Kenfield appeals the order of the Montana Twelfth Judicial District, Liberty
County, dismissing his third petition for postconviction relief as untimely, and for the
failure to meet his burden under the Montana postconviction relief statutes. We affirm.
ISSUES
¶2 Kenfield raises several issues on appeal, which we restate as follows:
1. Whether the District Court erred by dismissing Kenfield’s newly discovered
evidence claim.
2. Whether the criminal charging process used for Kenfield was consistent with
the 1972 Montana Constitution and Montana statutes.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In September 2008, a jury convicted Kenfield of one count of attempted deliberate
homicide for engaging in a drive-by shooting at the Liberty County Sheriff's Office in
Chester, Montana. The incident involved shots that were fired in the direction of the
sheriff’s dispatcher seated at her desk. Additionally, a jury convicted Kenfield of three
counts of felony criminal mischief and six counts of misdemeanor criminal mischief for
shooting at and damaging nine businesses in Chester.
¶4 Following his convictions, Kenfield filed a petition for postconviction relief
alleging ineffective assistance of counsel (IAC) by his trial counsel. In the petition,
Kenfield asserted numerous instances of his trial counsel’s shortcomings, including
alleged failures regarding the analysis of the crime scene. The IAC claim in Kenfield’s
original petition centered around his trial counsel’s decision to challenge the State’s
expert and his analysis of the bullet-ridden crime scene on cross examination rather than
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use his own investigator or perform tests for direct examination. Kenfield also
challenged his counsel’s decision not to use the defense’s expert analysis of surveillance
video of the crime scene and only cross-examine the State’s expert on the video. The
District Court held a hearing on Kenfield’s petition and issued a detailed order denying
Kenfield relief. In the order, the District Court concluded that Kenfield’s defense counsel
did not render IAC. The court determined that counsel provided an adequate defense and
chose to limit the defense’s expert analysis in part because his expert would not look as
qualified as the State’s. The court ultimately concluded that defense counsel’s decisions
were strategic, after hearing the State’s expert and considering the evidence in the record.
Kenfield appealed the decision and we affirmed the District Court on appeal. State v.
Kenfield, 2011 MT 150N, 2011 Mont. LEXIS 187 (Kenfield I). Kenfield later filed a
second petition for postconviction relief, alleging IAC based upon his trial counsel’s
suspension from the practice of law, which was unrelated to Kenfield’s case. This Court
again affirmed the District Court’s dismissal of his second petition. Kenfield v. State,
2014 MT 172N, 2014 Mont. LEXIS 401 (Kenfield II).
¶5 Kenfield filed a third petition for postconviction relief on November 4, 2015.
Prior to filing the third petition, Kenfield commissioned and paid for a “new” analysis of
the crime scene, which he now claims qualifies as newly discovered evidence. Skylark
Technologies, the same business that analyzed Kenfield’s trial evidence, conducted a
reconstruction of the crime scene utilizing the truck Kenfield drove the morning of the
shooting. Skylark analyzed three of the ten shots fired at the sheriff’s office based on the
trajectory calculations originally provided by the Department of Justice’s report on the
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incident. The Department of Justice’s report was available at trial, and was created at
Kenfield’s trial counsel’s request. Kenfield argues that the new truck analysis
demonstrates his actual innocence—that it was not possible that Kenfield fired the bullets
from his vehicle based upon the angle of the shots. The “new” evidence also included an
analysis by Skylark of the sheriff’s department’s surveillance footage and time records,
which Kenfield argues further supports his theory of actual innocence.
¶6 The District Court reviewed the petition and found that Kenfield’s new
independent crime scene analysis did not constitute newly discovered evidence that
would allow a subsequent petition. The court reasoned that Kenfield knew about alleged
problems with the State’s crime scene analysis prior to trial, or at least by the time he
filed his first postconviction relief petition where he raised IAC based upon the same
reasoning. Ultimately, the court determined that under § 46-21-102(2), MCA, Kenfield’s
new analysis did not constitute “newly discovered evidence.” Further, the court
determined that Kenfield was barred from asserting IAC claims in his third petition
pursuant to § 46-21-105(2), MCA. Finally, the District Court found that Kenfield’s
constitutional claim lacked merit because it was based on the 1889 Montana Constitution
and that the process for filing the Information was legally sound. Under this reasoning,
the District Court dismissed the petition on November 18, 2015.
STANDARD OF REVIEW
¶7 We review a district court’s denial of postconviction relief to determine if the
court’s findings of fact are clearly erroneous, and if its conclusions of law are correct.
Stock v. State, 2014 MT 46, ¶ 9, 374 Mont. 80, 318 P.3d 1053.
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DISCUSSION
¶8 1. Whether the District Court erred by dismissing Kenfield’s newly discovered
evidence claim.
¶9 Kenfield argues in his third petition for postconviction relief that the new crime
scene analysis he commissioned, seven years after the shooting, demonstrates that he
received IAC when his attorney failed to conduct a reasonable investigation of the case.
This petition is untimely, thus Kenfield seeks to avoid the procedural time bar set forth
under the postconviction relief statutes by arguing that he has “newly discovered
evidence” of actual innocence that permits review of the IAC claim. The State responds
that Kenfield has filed no new relevant grounds for relief in his petition and that all of his
claims have previously been raised or could reasonably have been raised on direct appeal.
¶10 Postconviction remedies are governed by specific statutes. Section 46-21-102(2),
MCA, provides:
A claim that alleges the existence of newly discovered evidence that, if
proved and viewed in light of the evidence as a whole would establish that
the petitioner did not engage in the criminal conduct for which the
petitioner was convicted, may be raised in a petition filed within 1 year of
the date on which the conviction becomes final or the date on which the
petitioner discovers, or reasonably should have discovered, the existence of
the evidence, whichever is later.
(Emphasis added). Additionally, because Kenfield has filed two previous petitions for
postconviction relief, § 46-21-105, MCA, applies. It provides:
Amendment of petition – waiver of grounds for relief.
(1) (a) All grounds for relief claimed by a petitioner under 46-21-101 must
be raised in the original or amended original petition. The original petition
may be amended only once. At the request of the state or on its own
motion, the court shall set a deadline for the filing of an amended original
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petition. If a hearing will be held, the deadline must be reasonably in
advance of the hearing but may not be less than 30 days prior to the date of
the hearing.
(b) The court shall dismiss a second or subsequent petition by a
person who has filed an original petition unless the second or subsequent
petition raises grounds for relief that could not reasonably have been
raised in the original or an amended original petition.
(2) When a petitioner has been afforded the opportunity for a direct
appeal of the petitioner’s conviction, grounds for relief that were or could
reasonably have been raised on direct appeal may not be raised, considered,
or decided in a proceeding brought under this chapter. Ineffectiveness or
incompetence of counsel in proceedings on an original or an amended
original petition under this part may not be raised in a second or
subsequent petition under this part.
(3) For purposes of this section, “grounds for relief” includes all
legal and factual issues that were or could have been raised in support of
the petitioner’s claim for relief.
Section 46-21-105, MCA, (emphasis added).
¶11 Kenfield’s current petition is subject to dismissal under § 46-21-105(1)(b), MCA,
as a second or subsequent petition, unless he raises new grounds for relief that could not
have reasonably been raised in his prior two petitions. Kenfield’s first and second
petitions demonstrate that he has already raised the claims he now raises in this third
petition. Because Kenfield’s claims of IAC and flawed crime scene analysis were raised
in the previous petitions, and his remaining claim could have been raised in the original
petition, the petition must be dismissed under statute. Sections 46-21-105(1)(b), (2),
MCA.
¶12 Kenfield further claims that his current petition is timely because he possesses
“newly discovered evidence” of actual innocence under § 46-21-102(2), MCA.
However, as the District Court correctly concluded, Kenfield clearly knew about the
alleged problems with the crime scene analysis because he addressed the same issues in
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his original petition, which was affirmed by this Court. Kenfield I, ¶¶ 5-6. Because he
has previously presented the evidence, Kenfield’s “new” independent analysis of the
shooting evidence is not “newly discovered evidence.”
¶13 The only “new” evidence presented by Kenfield is an eleven-page report created
by Skylark that analyzes the bullet trajectories. The analysis evaluates the trajectories of
three of the ten bullets fired at the sheriff’s office during the incident using Kenfield’s
truck to measure the trajectories. The report does not draw out the premise of the
analysis, but Kenfield advances the same argument that he made in his original petition
for postconviction relief—that the Department of Justice used a truck not representative
of his truck. The truck used in the original reconstruction sat lower than Kenfield’s truck;
thus, Kenfield posits, because his truck sits higher there is no way the shots could have
been fired from his truck. Skylark concluded that the shot positions, when traced back to
Kenfield’s truck, are consistently lower than the rear window, and close to the height of
the side window of the truck. Kenfield argues this is evidence of actual innocence.
¶14 Kenfield’s “newly discovered” evidence analyzes only three of the bullets fired on
the evening of the incident, but fails to provide an analysis of significant evidence against
Kenfield, including the seven additional shots fired at the sheriff’s office. There is no
evidence of actual innocence regarding Kenfield’s convictions of the misdemeanor and
felony criminal mischief charges pertaining to the other shots fired that night. Those
shots include the bullets that hit and damaged several businesses in Chester, including
The Roadhouse, Sugar Shack, Moodie Implement, Cenex Harvest States, Fraser Oil,
Tiber Tractor, and The Grand Bar. Section 46-21-102(2), MCA, regarding newly
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discovered evidence includes a qualifier that new evidence may be raised if “proved and
viewed in light of the evidence as a whole would establish that the petitioner did not
engage in the criminal conduct for which the petitioner was convicted . . . .” Given the
extent of his criminal conduct and convictions in the case, we conclude that a re-analysis
of three of the ten bullets fired does not overcome evidence of Kenfield’s guilt.
¶15 In addition, the new report is simply an additional analysis of the same evidence
used at trial and in Kenfield’s two previously denied petitions for postconviction relief.
Given the extent of the discussion of the crime scene analysis in the court record, there is
no question that the bullet trajectory issue is not newly discovered. Because the evidence
is not newly discovered, Kenfield’s petition does not meet the requirements set forth in
§ 46-21-102(2), MCA.
Schlup “Gateway” Claim
¶16 Kenfield’s remaining argument is a Schlup procedural claim, where under federal
law Kenfield argues that his new crime scene analysis evidence is sufficient to grant him
passage around state and federal statutory time bars, otherwise known as the “Schlup
gateway.” Schlup v. Delo, 513 U.S. 298, 316, 115 S. Ct. 851, 861 (1995). Kenfield seeks
to use Schlup to gain review of his IAC claim through the lens of his “new” independent
crime scene analysis.
¶17 “A Schlup procedural, or ‘gateway,’ innocence claim alleges that newly
discovered evidence demonstrates that ‘a constitutional violation has probably resulted’
in a wrongful conviction.” State v. Beach, 2013 MT 130, ¶ 14, 370 Mont. 163, 302 P.3d
47 (quoting Schlup, 513 U.S. at 327, 115 S. Ct. at 867). A Schlup claim accompanies an
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assertion of trial error, which in this case involves Kenfield’s IAC allegation that his
counsel failed to use a proper crime scene analysis at trial. Beach, ¶ 14 (citing Schlup,
513 U.S. 315-16, 115 S. Ct. at 861). To meet the Schlup standard of proof a petitioner
need only produce evidence that creates “sufficient doubt about his guilt to justify the
conclusion that his [criminal sanction] would be a miscarriage of justice unless his
conviction was the product of a fair trial.” Beach, ¶ 14 (citing Schlup, 513 U.S. at 316,
115 S. Ct. at 861-62) (emphasis in original). A Schlup gateway petitioner must “show
that it is ‘likely’ or ‘probable’ that ‘no reasonable jury’ would find him guilty.” Beach,
¶ 16. If the Schlup petitioner makes the required showing, the petitioner passes through
the “gateway” that entitles him to present his constitutional claims of trial error, despite
the procedural bars that would normally prohibit such claims. Beach, ¶¶ 14, 16. In
Beach, we noted that because this Court respects the finality of a verdict, the reviewing
court must determine whether the petitioner has supported his innocence claim “with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Beach, ¶ 8
(citing Schlup, 513 U.S. at 324, 115 S. Ct. at 865).
¶18 The pitfall for Kenfield’s Schlup claim is that the evidence is not “new reliable
evidence . . . that was not presented at trial.” Beach, ¶ 8. As we noted above, the record
in this case is replete with similar evidence regarding the crime scene analysis at trial, on
Kenfield’s original postconviction relief petition with accompanying IAC claim, and
once again on his second petition for postconviction relief. Specifically, the evidence
that Kenfield brings forward on this third petition can be boiled down to the use of one
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different factor: Kenfield’s truck. The height of Kenfield’s truck versus the truck in the
“flawed” crime scene analysis allegedly demonstrates Kenfield could not possibly have
fired the shots from the truck. This is not newly discovered evidence. This same
evidence was reviewed and available for Kenfield at trial and his counsel strategically
chose not to use the information.
¶19 We concluded in Kenfield I that it was not IAC when Kenfield’s counsel chose to
rely on the cross examination of the State’s crime scene analysis at trial rather than
present an independent analysis of the data. Kenfield I, ¶ 6. We affirmed the District
Court’s conclusion that Kenfield’s defense counsel made a strategic decision, among
many, to hold back his expert in part to avoid the risk that the expert would not look as
qualified as the State’s expert. Regardless, the evidence contained in Kenfield’s current
analysis was available at trial and the “new” analysis presents nothing new. In the order
dismissing Kenfield’s third petition, the District Court concluded that this issue was
addressed in the original petition. We agree. We conclude that Kenfield has not
presented any evidence that can be considered new or different from what was available
at trial or what he has already presented in this case. Because he has failed to provide
new evidence, the Schlup gateway Kenfield seeks is not open for him to pass through.
Because it was previously addressed, and because the evidence that Kenfield presents is
not new, we affirm the District Court’s dismissal of the petition pursuant to § 46-21-105,
MCA. We also conclude that Kenfield’s IAC-related claim similarly fails because
Kenfield previously raised it and the District Court properly dismissed the claim as
barred under § 46-21-105(2), MCA.
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¶20 2. Whether the criminal charging process used for Kenfield was consistent with
the 1972 Montana Constitution and Montana statutes.
¶21 Kenfield argues that the charging process used in his criminal case was
unconstitutional because it violates the 1889 Montana Constitution. Petitioner fails to
recognize that the State of Montana adopted and ratified a new Constitution in 1972.
“Montana’s specific constitutional and statutory provisions define a district court’s
jurisdiction and provide for commencing a state prosecution.” State v. Montgomery,
2015 MT 151, ¶ 9, 379 Mont. 353, 350 P.3d 77 (citing Mont. Const. art. II, § 20(1) and
art. VII, § 4(1); §§ 3-5-301(1), -302(1)(a), and 46-11-101, MCA). We have also
concluded that “‘[t]he district court has original jurisdiction in all criminal cases
amounting to felony . . . .’” Montgomery, ¶ 9 (quoting Mont. Const. art. VII, § 4(1)).
Accordingly, the District Court properly determined that Kenfield’s claims are not valid
or sustainable under the Constitution or laws of the State of Montana.
¶22 Additionally, the postconviction relief statutes require that the district court
dismiss a second or subsequent petition unless the petitioner raises grounds for relief that
“could not reasonably have been raised in the original or an amended original petition.”
Section 46-21-105(1)(b), MCA; State v Osborne, 2005 MT 264, ¶ 14, 329 Mont. 95, 124
P.3d 1085. Kenfield’s claim could reasonably have been raised in his original petition.
We affirm the District Court’s dismissal of the claim as it was not an abuse of the court’s
discretion.
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CONCLUSION
¶23 The District Court made proper factual findings regarding Kenfield’s third petition
for postconviction relief, and its conclusions of law are correct. Accordingly, we affirm
the District Court’s dismissal of Kenfield’s petition because he failed to present any
newly discovered evidence. We also affirm the District Court’s conclusion that the
criminal charging process used to charge and prosecute Kenfield was consistent with the
1972 Montana Constitution and Montana statutes.
/S/ MICHAEL E WHEAT
We Concur:
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ JIM RICE
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