Armstrong v. State

NOT DESIGNATED FOR PUBLICATION
No. 123,529
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DARYL WAYNE ARMSTRONG JR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Saline District Court; PAUL J. HICKMAN, judge. Opinion filed February 18, 2022.
Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Alexander C. Driskell, assistant county attorney, Jeffery Ebel, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MALONE, J., and RICHARD B. WALKER, S.J.
PER CURIAM: In 2014, Daryl Wayne Armstrong Jr. was convicted of four counts
of aggravated indecent liberties, two counts of aggravated sodomy, plus convictions for
indecent liberties and sodomy. Each count involved the same minor victim. After his
convictions were affirmed on direct appeal, he filed a K.S.A. 60-1507 motion in which he
claimed his trial counsel was ineffective in numerous ways. In denying the motion, the
district court found that Armstrong had received a fair trial with effective assistance of
counsel. On appeal, Armstrong contends that the district court erred in concluding that he
was not entitled to an evidentiary hearing on his motion. Finding no error, we affirm.
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FACTS
The parties are well acquainted with the evidence presented at trial and it is
unnecessary to repeat it in this opinion. Following Armstrong's convictions, he was
sentenced to consecutive life sentences for his six off-grid convictions, plus an additional
98 months for his other convictions. His convictions were subsequently affirmed by this
court and the Kansas Supreme Court denied a petition for review. State v. Armstrong, No.
112,942, 2016 WL 3960171 (Kan. App. 2016) (unpublished opinion), rev. denied 306
Kan. 1320 (2017).
On July 27, 2018, Armstrong filed a K.S.A. 60-1507 motion and a supporting
memorandum in the district court. In his motion, Armstrong alleged—among other
things—23 instances that he claimed constituted ineffective assistance of trial counsel.
On November 13, 2019, the district court summarily denied Armstrong's motion in a
comprehensive 54-page order that addressed each of the instances in which Armstrong
claimed his trial counsel was ineffective.
Thereafter, Armstrong filed a timely notice of appeal.
ANALYSIS
The sole issue presented on appeal is whether the district court erred in concluding
that Armstrong failed to establish that he was entitled to an evidentiary hearing on his
K.S.A. 60-1507 motion. In his brief, Armstrong solely focuses on his trial counsel's
failure to object to certain testimony offered by the minor victim's grandfather during
trial. He suggests that the grandfather's testimony constituted improper comment
concerning the victim's credibility. In response, the State contends that Armstrong's trial
counsel was not ineffective and that the grandfather's testimony was not inappropriate.
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When, as here, the district court summarily dismisses a K.S.A. 60-1507 motion,
our review is unlimited. In particular, we must determine whether the motion, files, and
records of the case conclusively establish that the movant is not entitled to relief. See
Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018). However, before
addressing this issue, we must first determine whether Armstrong has waived his other
claims of ineffective assistance of counsel asserted in his K.S.A. 60-1507 motion.
All issues and arguments not briefed on appeal are deemed waived or abandoned.
See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018). Here, based on our review
of Armstrong's brief, we find that the only claim of ineffective assistance of counsel that
he has argued relates to the failure of trial counsel to object to certain testimony presented
by the minor victim's grandfather at trial. As such, we find that the other claims have
been waived on appeal.
Regarding Armstrong's remaining claim, we note the following analysis set forth
by the Kansas Supreme Court.
"To prevail on a claim of ineffective assistance of trial counsel, a criminal
defendant must establish (1) that the performance of defense counsel was deficient under
the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable
probability the jury would have reached a different result absent the deficient
performance. 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, reh.
denied 467 U.S. 1267 [1984])." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).
Generally, one witness should not express an opinion regarding the credibility of
another witness. Instead, it is left to the jury to decide the truthfulness of a witness. See
State v. Plaskett, 271 Kan. 995, 1008-09, 27 P.3d 890 (2001). Armstrong argues that this
rule was violated in the trial of his case. He further argues that the failure of trial counsel
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to object to the grandfather's testimony was ineffective and prejudiced his right to a fair
trial.
Specifically, the minor victim's grandfather testified:
"Detective Short came out and sat down and looked at me, and she says, 'I hate to
say this, but, yes, she's been touched, and she's severely trying to hide it now, it's going to
take a little bit, she's been stuffing it down inside of her so long it's tough to get out.' I
said, 'So has it been going on very long?' and she says, 'For a very, very, long time,' and I
just was, couldn't believe it."
In its very thorough order summarily denying Armstrong's K.S.A. 60-1507
motion, the district court discussed this issue at length. In doing so, the district found:
"A witness may not express an opinion on the credibility of another witness.
State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986). This is because the jury makes
the determination of the truthfulness of a witness. State v. Plaskett, 271 Kan. 995, 1009,
27 P.3d 890 (2001). The trial court has no discretion on whether to allow a witness to
express an opinion on the credibility of another witness; such evidence must be
disallowed as a matter of law. State v. Elnicki, 279 Kan. 47, 53-54, 105 P.3d 1222 (2005).
"In Elnicki, there were repeated instances where the detective directly called the
defendant some derivation of a liar. The Kansas Supreme Court found that the error of
not redacting the videotape combined with other instances of prosecutorial misconduct
resulted in cumulative error that denied the defendant a fair trial. Elnicki, 279 Kan. at 68.
"The Elnicki court reversed Elnicki's convictions due to the prosecutor's oft-
repeated statements in closing argument to the effect that Elnicki's statements were a
'yarn,' 'fairy tale,' 'fabrication,' 'tall tale,' and 'spin.' Elnicki, 279 Kan. at 64-66. In doing so
the Supreme Court observed that its decision to reverse and remand was greatly
strengthened by its holding that the district court also erred in allowing the jury to hear
Hazim's negative statements on the videotape. Elnicki, 279 Kan. at 67.
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"In State v. Araujo-Gutierrez, unpublished, 2014 WL 6676127, 338 P.3d 23(Kan. Ct. App. 2014) the officers' comments of which Araujo-Gutierrez complained were
distinguished from those disallowed in Elnicki. Araujo-Gutierrez was confronted with the
victim's allegations and asked why she would say something like that. The officer
replied: 'That's my question. Why would [victim] say something like that if it wasn't
true? I mean, was she mad at you? Why would she make up a story like that if it's made
up? Do you know any reason why she would say something that was untrue about you?'
"As Araujo-Gutierrez continued to deny the allegations, an officer explained:
"'If it did happen though it'd be good to be truthful now, cause if that DNA stuff,
I mean they can, they went, the KBI came down and took the carpet and did all
their testing and put their glasses on. . . . I mean you know what we put in our
report, we document everything that took place and we say here we come and
the[n] you denied it and it didn't happen and the stuff comes back and it comes
back being yours and then you know it just doesn't look good. When they read
the reports, there's conflicting stuff. So I know it's a tough thing. A real tough
thing. But if it did happen we just need to get you help. You know get you some
help. I'm here to explain that you're not under arrest. But I'm just trying to help.
But if you did do it, it'd be good to talk about it right now and get it done and
over with. And you're gonna walk out of here just as we explained to you and
we're not going to arrest you. But it looks better on your part being truthful with
us, than it coming back and saying well it's [your] DNA. I mean, they're going to
find it. The KBI is awesome at that kind of stuff, their testing. So it just looks
better on your part to be truthful.'
"'Later the officer stated: 'It's important to tell the truth.' An officer asked
Araujo-Gutierrez, 'Has she ever been a liar that you know of? Does this girl tell the truth
usually? Has she been somebody that's deceitful? After Araujo-Gutierrez commented,
'This is really serious,' an officer responded: 'You're right this is really serious. But it's
really serious also for an eleven-year-old little girl. Is she lying? Or are you lying? That's
where I'm at now. She says it happened, you said it didn't. There's only one truth there
right? And my job is to find out who's telling the truth.' State v. Araujo-Gutierrez,
unpublished, 2014 WL 6676127, 338 P.3d 23 (Kan. Ct. App. 2014).
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"The Court found 'they are not direct comments on Araujo-Gutierrez's lack of
credibility, nor are they direct expressions of personal opinions about E.B.N.'s credibility.
They contain none of the repeated personal invective or name calling noted by the court
in Elnicki. Accordingly, we find that Elnicki does not support Araujo-Gutierrez's
contention that the district court erred in refusing his request to have these comments
redacted from the recording of the interrogation.' State v. Araujo-Gutierrez, unpublished,
2014 WL 6676127, 338 P.3d 23 (Kan. Ct. App. 2014).
"In State v. Geist, unpublished, 2014 WL 801854, 318 P.3d 1019 (Kan. Ct. App.
2014), Geist argued that the district court erred in allowing Detective McMillian to
comment on Geist's credibility. The State introduced evidence of Geist's interview with
McMillian. Both the prosecutor and defense counsel redacted the interview to prevent
improper evidence and allegations from coming before the jury.
"However, the redacted interview contained three statements by McMillian,
wherein he stated: (1) 'In my mind, it's not a matter of if'; (2) 'It's not a matter of if'; and
(3) 'It's not a matter of if; it's a matter of why.' On appeal, Geist argues the district court
improperly admitted the video with these statements because they were McMillian's
comments on Geist's credibility and were paramount to calling Geist a liar as had
occurred in Elnicki. State v. Geist, 318 P.3d 1019 (Kan. Ct. App. 2014).
"The Court found 'the parties took great pains to make sure all the obvious
Elnicki violations were redacted from McMillian's interrogation with Geist. McMillian's
statements clearly were not a direct allegation that Geist was lying. Furthermore, the
prosecutor did not compound the problem by improperly attacking Geist's credibility
during closing argument. As a result, we conclude that McMillian did not improperly
comment on Geist's credibility, and the district court did not err in allowing the jury to
hear this evidence.' State v. Geist, unpublished, 2014 WL 801854, 318 P.3d 1019 (Kan.
Ct. App 2014).
"The testimony from [the minor victim's grandfather in this case] was
substantially different in character than the officer's statements on the videotape in
Elnicki. It is an entirely different matter than directly stating a personal opinion that the
suspect is lying, as the detective did in Elnicki. [The grandfather's] testimony that 'he
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couldn't believe it' actually favors the defendant. Furthermore, the prosecutor did not
repeat the testimony in closing argument.
"As to the second prong, Plaintiff makes the conclusory allegation that as a result
of counsel's failure to object to [the grandfather's] testimony, there is a reasonable
probability that is sufficient to undermine confidence in the outcome of the trial, thereby
prejudicing him."
We agree with the district court's analysis of this issue. Notably, Armstrong does
not address the district court's application of the holdings of Elnicki, Araujo-Gutierrez, or
Giest to the facts of his case. Instead, Armstrong cites three out-of-state cases that are not
binding on this court. Based on our review of the record, and in light of Kansas law, we
do not find that the district court erred. In particular, we find that, unlike the statements
made in Elnicki, the testimony offered by the grandfather in this case was not a direct
statement regarding either the detective's credibility or that of the minor victim.
Accordingly, we conclude that Armstrong has failed to establish that trial counsel's
failure to object to the grandfather's testimony was deficient under the totality of the
circumstances. Moreover, even if we were to assume that trial counsel's lack of objection
constituted error, we do not find a reasonable probability that the jury would have
reached a different result absent the deficient performance. In this regard, the
grandfather's testimony was only a small part of the evidence presented over the course
of a week-long jury trial. As a result, like the district court, we conclude that the motion,
files, and records of the case conclusively establish that the movant is not entitled to
relief.
Affirmed.
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