McCoy v. State

NOT DESIGNATED FOR PUBLICATION
No. 121,126
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DERON MCCOY JR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed November 13,
2020. Affirmed.
Kristen B. Patty, of Wichita, for appellant, and Deron McCoy Jr., appellant pro se.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.
ARNOLD-BURGER, C.J.: Deron McCoy Jr. appeals from the trial court's denial of
his K.S.A. 2019 Supp. 60-1507 motion, raising multiple claims of ineffective assistance
of trial and appellate counsel. McCoy now raises four of those ineffective assistance
claims, specifically those related to his trial counsel's failure to (1) argue the police
created exigent circumstances by trying to enter his hotel room with a key card, violating
the Fourth Amendment to the United States Constitution; (2) preserve the denial of a
motion to suppress for appeal; and (3) contest the unavailability of a witness; as well as
(4) his appellate counsel's failure to challenge the sufficiency of the evidence for one of
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his convictions. He also asserts the cumulative effect of those errors deprived him of his
Sixth Amendment to the United States Constitution right to counsel. After a thorough
review of the motion, files, and records of the case, we find no error in the court's
decision and affirm.
FACTUAL AND PROCEDURAL HISTORY
The underlying facts of this case were set forth in McCoy's previous appeal, but
generally involved an incident in which McCoy held his infant daughter, A.M., and his
sister, Kaneisha Spencer, at gunpoint during an hours-long standoff with the police. See
State v. McCoy, No. 110,827, 2015 WL 3632037, at *1-3 (Kan. App. 2015) (unpublished
opinion), rev. denied 304 Kan. 1020 (2016). Ultimately, a jury convicted McCoy of one
count of kidnapping of Spencer, five counts of aggravated assault on a law enforcement
officer, one count of aggravated assault of Spencer, one count of aggravated
endangerment of a child, one count of criminal possession of a firearm, one count of
possession of cocaine, one count of solicitation to commit perjury, and one count of
possession of hydrocodone-lortab. Relevant to this appeal, the jury also acquitted McCoy
of two counts of possession of drug paraphernalia and one count of possession of
methamphetamine, based on evidence that the officers seized from the hotel room and his
person after his arrest. The court later sentenced McCoy to a total prison sentence of 335
months.
McCoy filed a direct appeal, raising several trial errors. A panel of this court
rejected most of his arguments and affirmed his convictions, but still vacated his sentence
and remanded for a new hearing on his motion for new trial. On that point, the panel
found the trial court erred by denying his clear and unequivocal request for self-
representation. See 2015 WL 3632037, at *22-23. The mandate for the direct appeal
issued May 4, 2016.
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On remand, the trial court held a hearing on McCoy's motion for new trial.
Representing himself, McCoy argued newly discovered evidence supported his request
for a new trial, specifically that Spencer would testify he did not hold her against her will
and she was generally unaware of the criminal charges. After hearing testimony from
Spencer, at the close of the hearing the court granted the parties leave to submit briefs
and took the matter under advisement.
Ultimately, the trial court denied the motion for new trial at a hearing in October
2016, finding that McCoy had failed to establish he could not have produced Spencer as a
witness with reasonable diligence before trial. The court also found Spencer's testimony
was not credible, and that even if presented at trial it would be unlikely to change the
outcome. The court went on to resentence McCoy to the same sentence as before—a
controlling sentence of 335 months in prison. McCoy timely appealed, challenging the
denial of his motion for new trial. This court ultimately affirmed the trial court's ruling on
the remanded motion for new trial in McCoy's second appeal. See State v. McCoy, No.
117,480, 2018 WL 2072452, at *1 (Kan. App. 2018) (unpublished opinion), rev. denied
309 Kan. 1352 (2019).
McCoy files a K.S.A. 2019 Supp. 60-1507 motion.
McCoy timely filed a pro se K.S.A. 2019 Supp. 60-1507 motion, alleging
ineffective assistance of both trial and appellate counsel in his first appeal. He raised 11
total claims in the motion. The trial court held a hearing on the motion, at which McCoy,
his trial counsel, and his appellate counsel testified. Because he only raises five of those
claims on appeal, we will focus on the evidence presented and the trial court's decision on
those five. McCoy challenged his trial counsel's alleged failure to (1) argue a Fourth
Amendment violation based on alleged police-created exigent circumstances for using a
hotel key card to enter the hotel room; (2) preserve the denial of the motion to suppress
for appeal by not objecting to an officer's testimony at trial; and (3) contest Spencer's
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unavailability, which allowed the admission of her hearsay statements at trial; as well as
(4) his appellate counsel's alleged failure to challenge the sufficiency of the evidence to
support one count of aggravated assault on a law enforcement officer; and (5) whether the
cumulative effect of those errors, if any, deprived him of his Sixth Amendment right to
counsel.
McCoy's testimony
McCoy testified that he believed the officers had no evidence, only "suspicions" to
support attempting to enter the hotel room with a key card. That attempt then created the
exigent circumstances the officers would later rely on to forcibly enter the room. McCoy
believed his trial attorney, Alice Osburn, provided ineffective assistance by failing to
object to testimony at trial, thus not preserving that issue for appeal.
McCoy also testified that the State failed to proffer evidence to show a witness
was unavailable to testify, "[a]nd in my case Mr. Stanton [the prosecutor] just stood up
and during trial, like halfway through the testimony one day, said he was proffering the
hearsay testimony of my sister under a cited evidence exception." The hearsay statements
were that Spencer "had allegedly told [the officers] that I was holding her in the hotel
room, had a gun on her, wouldn't let her out, and made her turn off her cell phone."
McCoy never got the chance to cross-examine Spencer because she was not present at the
preliminary hearing or the trial. McCoy later filed a motion for new trial upon remand
after Spencer "got in contact with [him] and was at first didn't believe that [he] was in
prison and convicted of crimes against her 'cause she said she never alleged any crimes
against me."
McCoy testified his appellate counsel on his first appeal, Rachel Pickering, was
ineffective for failing to challenge the sufficiency of evidence to support the crime of
aggravated assault of a law enforcement officer against Officer Brian Hirt. McCoy
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pointed out that Officer Hirt was not in the hotel room and there was no weapon pointed
at him, and "[s]he told me she was going to raise the issue and she didn't raise it, so
obvious issue."
Trial counsel testimony
Osburn testified as well. As for the exigent circumstances argument, Osburn
testified about her recollection of the events leading to the officers' entry into the hotel
room. She did not recall if the officers used the key the first time or the second time, but
she knew that they tried to enter once and backed out because McCoy had threatened to
hurt someone and said to "get the fuck out." Osburn said the officers knew various details
before that first entry based on what the mother of the baby had told the police, including
"the area of where he would have been in, who he would have been with, that a minor
child was involved, that there was threats of violence, and that there was a gun involved."
Osburn testified that "[a]pparently" she did not object to the very first witness
testimony. She recalled that McCoy was actively engaged in the trial, talking to her and
writing notes. Osburn recalled the State seeking to admit Spencer's hearsay statements
and that the court ruled her statements made as she left the hotel room were excited
utterances, a hearsay exception. Because of that determination, Osburn believed she did
not need to argue the unavailability of the witness.
Osburn recalled there was evidence seized from the room and McCoy's person
relating to the controlled substances charges. She remembered that there was a glass pipe
found in the room and a scale in the bathroom ceiling. The State charged McCoy with
possession of drug paraphernalia, but the jury acquitted him of those charges. Osburn had
moved to suppress the items found in the hotel room.
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On cross-examination, Osburn testified she did not file a motion arguing that the
State created the exigent circumstances by trying to enter the hotel room with a key card
because she "didn't think the [S]tate created the situation, the defendant actually did."
Osburn also did not raise the issue that McCoy would be unable to confront Spencer if
the State introduced her statements without her being present. She reiterated her
understanding that the State did not need to prove unavailability because the statements
fell under a hearsay exception but agreed there was no evidence presented to establish
Spencer's unavailability.
Appellate counsel testimony
Pickering then testified. She recalled filing a brief on McCoy's behalf raising nine
total issues. There were no reasons for her to raise the unavailability issue on appeal
because the statements were admitted as an exception to hearsay.
Pickering recalled arguing that McCoy's convictions for aggravated assault on a
law enforcement officer were multiplicitious and violated double jeopardy. The appellate
court found the convictions were not multiplicitious and that they should stand. When
asked if she challenged the sufficiency of the evidence to support the convictions,
Pickering said, "[w]hen you're attacking the multiplicity you're usually attacking the, in a
sense the sufficiency. . . . Because if there is sufficient evidence, they're finding all five."
Pickering argued the trial court erred in denying McCoy's motion to suppress the
evidence found in the hotel room. The Court of Appeals did not reach the issue but
ultimately found the issue was moot because McCoy had been acquitted of the drug
paraphernalia charges based on the search.
On cross-examination, Pickering testified she did not raise a constitutional
argument that Spencer's statements should not come in because McCoy did not have the
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right to confront Spencer. Pickering did not argue on appeal that the State failed to
provide sufficient evidence that Spencer was unavailable. Pickering did not argue that
there was insufficient evidence to support a conviction for aggravated assault against
Officer Hirt. On redirect, Pickering confirmed that she raised all the issues in the petition
for review that were raised on direct appeal, except for the one argument that was
successful.
Trial court's ruling
Ultimately, the court denied the 60-1507 motion, concluding that McCoy had
showed no level of ineffective assistance for any of his claims, excepting the claim that
his trial counsel was ineffective for failing to object at trial to the admission of certain
evidence. On that claim, however, the court determined McCoy had failed to establish
prejudice because the evidence was overwhelming. The court also said that even if
Osburn had objected, the issue would have merely been preserved for appeal but that the
ruling was still correct. The trial court issued written findings of fact and conclusions of
law supporting its decision on each issue raised. More details will be provided as needed
as we examine each of those issues.
McCoy timely appealed.
ANALYSIS
McCoy argues the district court erred in denying his 60-1507 motion and that he is
entitled to a reversal of the denial of a motion suppress, reversal of his convictions, or—
at a minimum—he should receive a new trial based on the claims asserted.
In support, he brings forward four specific allegations of ineffective assistance on
appeal, three related to trial counsel performance and one to his appellate counsel's
7
performance. Then, McCoy's pro se supplemental brief also argues that the cumulative
effect of his trial and appellate counsels' failures denied him the right to effective
assistance.
McCoy challenges his trial counsel's alleged failure to (1) argue a Fourth
Amendment violation based on alleged police-created exigent circumstances for using a
hotel key card to enter the hotel room; (2) preserve the denial of the motion to suppress
for appeal by not objecting to an officer's testimony at trial; and (3) contest Spencer's
unavailability, which allowed the admission of her hearsay statements at trial; as well as
(4) his appellate counsel's alleged failure to challenge the sufficiency of the evidence to
support one count of aggravated assault on a law enforcement officer; and (5) whether the
cumulative effect of those errors, if any, deprived him of his Sixth Amendment right to
counsel.
Standard of review
When a trial court holds a full evidentiary hearing on a K.S.A. 2019 Supp. 60-
1507 motion, it must issue findings of fact and conclusions of law on all issues presented.
Supreme Court Rule 183(j) (2020 Kan. S. Ct. R. 223). When that occurs, this court must
determine whether the trial court's findings of fact are supported by substantial competent
evidence and are sufficient to support the court's ultimate conclusions of law. Appellate
review of the court's legal conclusions is de novo. Fuller v. State, 303 Kan. 478, 485, 363
P.3d 373 (2015).
Ineffective assistance of counsel claims, in general
To be entitled to relief under K.S.A. 2019 Supp. 60-1507(b), the movant must
establish by a preponderance of the evidence either: (1) "the judgment was rendered
without jurisdiction"; (2) "the sentence imposed was not authorized by law or is
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otherwise open to collateral attack"; or (3) "there has been such a denial or infringement
of the constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack." See Supreme Court Rule 183(g).
A defendant may not use a K.S.A. 2019 Supp. 60-1507 motion as a substitute for a
direct or 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."
Supreme Court Rule 183(c)(3) (2020 Kan. S. Ct. R. 223-24). Ineffective assistance of
counsel can qualify as an exceptional circumstance that justifies failing to raise an issue
on direct appeal. Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009).
"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, 104 S. Ct. 3562, 82 L. Ed. 2d 864 [1984])." State v. Salary, 309
Kan. 479, 483, 437 P.3d 953 (2019).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. In considering deficiency, "there is a strong presumption counsel 'rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.'" State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). To
establish prejudice, the defendant must show a reasonable probability that, but for
counsel's deficient performance, the outcome of the proceeding would have been
different, with a reasonable probability meaning a probability sufficient to undermine
confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015).
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Trial counsel did not provide ineffective assistance by failing to argue that the police
created the exigent circumstances that ultimately lead to them entering McCoy's hotel
room.
On this point, McCoy focuses on the fact that the police tried to enter the hotel
room using a key card near the beginning of the standoff, asserting that the police lacked
supporting facts to justify a warrantless entry at the time. He claims the officers only
suspected he was in the room, may have had a firearm, and that there might be a child
inside. The trial court found that McCoy had failed to establish "any level of ineffective
assistance" because the evidence "clearly established" that McCoy—and not the police—
created the exigent circumstances. In deciding the issue this way, the trial court
essentially found that McCoy was not prejudiced when Osburn failed to make this
argument because it would not have succeeded. So, we examine the facts supporting
McCoy's argument regarding suppression.
McCoy contends that the police created an exigency by using a hotel key card to
enter the hotel room without a search warrant or supporting facts to justify a warrantless
entry. See State v. Campbell, 297 Kan. 273, 283-84, 300 P.3d 72 (2013) (citing Kentucky
v. King, 563 U.S. 452, 131 S. Ct. 1849, 179 L. Ed. 2d 865 [2011]) (recognizing that a
police-created exigency cannot justify a warrantless entry). As support, McCoy also
references United States v. Ramirez, 676 F.3d 755 (8th Cir. 2012), in which he asserts the
Eighth Circuit held that "the attempted entry into a hotel room with a key-card . . .
violated the Fourth Amendment and ordered all evidence seized after that violation of the
Fourth Amendment be suppressed." Because the facts are sufficiently similar here,
McCoy contends that the trial court should have suppressed the evidence seized as a
result of the officers' initial unlawful entry. This argument is not persuasive for a few
reasons.
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First, and most importantly, McCoy ignores the evidence detailing everything
before the officers first tried to enter the hotel room. According to Leanna Daniels,
A.M.'s mother, the incident started during a phone call with McCoy after she heard A.M.
crying in the background. Daniels asked why she was crying, and McCoy said to come to
the hotel to find out. This alarmed her. Daniels and her friend Gwendolyn Roby then
went to the hotel to pick up A.M. Once they arrived, Daniels said McCoy told her to
come inside the room, but she refused, so he grabbed her by the hair to pull her in.
McCoy then said, "'Sis, come beat this bitch's ass,'" referring to Spencer, who was also in
the room. Daniels somehow got away from McCoy and got into her car. She parked
behind McCoy's vehicle so he could not drive away with A.M., which prompted McCoy
to flash a gun at her. While this was happening, Roby decided to call the police because
McCoy would not allow Daniels to take A.M. They also informed the police that McCoy
had a gun. Dispatch told them to drive to the police station, which they did.
The police received the dispatch to the hotel around 4:38 p.m., based on Roby's
911 call describing a custody dispute involving McCoy and that he possibly had a gun.
Upon arrival, they announced themselves as police officers, knocked on the door, and
sought to contact the occupants but McCoy told them to "'get back, stay away.'" At one
point, the officers tried to use a hotel key card to enter the room but did not succeed.
Some officers testified that McCoy specifically screamed to "'[g]et the fuck back'" after
this unsuccessful attempt and then again multiple times after being asked to come out.
Based on these facts, McCoy's claim that the police created the exigent
circumstances is simply not supported by the evidence. As a result, the trial court
correctly concluded that McCoy created the exigent circumstances through his actions
and that the motion to suppress was correctly denied based on that legal ground.
Second, the primary case McCoy relies on for support is distinguishable from his
claim. Aside from being nonbinding authority from the Eighth Circuit, the Ramirez court
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declined to say whether the police created the exigency because it found that no exigency
existed. 676 F.3d at 765 ("[T]he government fails to establish that it was reasonable for
the officers to conclude that destruction of evidence was imminent."). Although the panel
in McCoy's previous appeal did not review the motion to suppress because it found he
had failed to preserve the issue, it still recognized that the trial court determined "there
was 'legal cause to go into the room to protect the safety of the child and the other
victim.'" (Emphasis added.) McCoy, 2015 WL 3632037, at *7. As the panel inferred, and
as discussed below, that ruling by the trial court was correct.
In sum, McCoy fails to show that Osburn rendered ineffective assistance by failing
to argue that the police created the exigency in this case. It was a losing argument. Before
the officers' initial unsuccessful attempt at using the hotel key card, an exigency already
existed because McCoy was refusing to hand over A.M. to Daniels, possibly had a gun,
and was yelling at the officers and refusing to comply with their requests. The trial court
correctly denied this ineffective assistance claim.
Trial counsel provided ineffective assistance by failing to object at trial to evidence
recovered during the entry into McCoy's hotel room, but he was not prejudiced by
counsel's performance.
As the panel in McCoy's first appeal recognized, he waived the ability to challenge
the denial of the suppression motion because Osburn failed to object properly at trial,
which he now asserts amounted to ineffective assistance. See 2015 WL 3632037, at *8.
The Court of Appeals found—and the parties do not dispute—that Osburn's failure to
object to Officer Josh Long's testimony amounted to deficient performance. As a result,
this court will presume Osburn's performance was deficient and move straight to
determining whether McCoy was prejudiced by that deficient performance.
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When testifying at the 60-1507 hearing, Osburn admitted she did not object to
Officer Long's testimony. Still, the record reflects she objected each time a subsequent
officer testified about the same facts and the trial judge overruled each objection. Given
the trial court's consistency in overruling those objections, this court can presume a
timely objection to Officer Long's testimony would not have led to a different outcome.
Officer Long would still have testified and there is no reasonable probability that the jury
would have returned a different verdict. So McCoy must be able to show that this court
would have reversed the denial of the suppression motion on appeal.
When ruling on this claim, the trial court noted that "[t]he evidence was, to say the
least, overwhelming," and that making the objection would have only preserved the issue
for appeal, where there was "no probability" of success. We agree.
To start, as already discussed above, substantial competent evidence supports the
trial court's findings and conclusion that McCoy created the exigent circumstances that
allowed the officers to enter his hotel room without a warrant. This was true before their
initial unsuccessful attempt and bolstered by the hours-long standoff that began when the
officers backed away. During the standoff, the officers were monitoring sound or
movement in the room and noticed A.M. would cry every time a train passed by the
hotel. When two trains passed by with no sound or movement in the room, which one
officer described as "deathly quiet," they decided to force entry around 9 p.m.
McCoy asserts the State could not establish the emergency aid exception justified
a warrantless entry and that the primary case relied on to reach that conclusion, State v.
Jones, 24 Kan. App. 2d 405, 947 P.2d 1030 (1997), has since been overruled. Indeed, the
Kansas Supreme Court explicitly overruled the test adopted in Jones in 2014, based
mainly on the United States Supreme Court decision in Brigham City v. Stuart, 547 U.S.
398, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). See State v. Neighbors, 299 Kan. 234,
13
245-49, 328 P.3d 1081 (2014) (discussing the emergency aid exception). Our Supreme
Court then held:
"Accordingly, the emergency aid exception must be seen as a limited exception
permitting a warrantless search when: (1) law enforcement officers enter the premises
with an objectively reasonable basis to believe someone inside is seriously injured or
imminently threatened with serious injury; and (2) the manner and scope of any ensuing
search once inside the premises is reasonable." 299 Kan. at 249.
The only aspect of this test that McCoy disputes is whether the officers had an
objectively reasonable basis to believe an imminent threat of serious injury existed for
someone inside the hotel room. He claims that the allegations by Daniels could not
support this prong because the jury acquitted him of the aggravated assault charge against
her. But that argument misses the point because Daniels was not in the hotel room with
McCoy during the standoff. Based on Daniels' statements, the officers knew or had
reason to believe McCoy had a gun and was refusing to let A.M. leave with Daniels when
they arrived. Then, he escalated the situation by threatening the officers to "'get the fuck
back.'" The officers believed it was an ongoing hostage situation and became concerned
because of the lack of movement or noise coming from the room. Thus, the trial court's
conclusion that the emergency aid exception applied was supported by the evidence.
McCoy also contends the officers lacked probable cause to enter the hotel room,
but, as the State points out, McCoy had threatened Daniels and tried to pull her into the
room before the officers arrived. He had also refused to comply with the officers' requests
and was committing multiple criminal acts during the standoff by holding Spencer and
A.M. hostage in the hotel room. A reasonable person could accept these facts as a basis
for probable cause to enter the hotel room.
McCoy's current counsel also briefly suggests that not objecting to Officer Long's
testimony meant there was insufficient evidence to sustain all of his convictions,
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particularly the five counts of aggravated assault on a law enforcement officer, the
kidnapping and aggravated assault charges related to Spencer, the aggravated
endangerment of a child charge, and the criminal possession of a firearm charge. Yet as
the trial court recognized when ruling on McCoy's 60-1507 motion, a timely objection
would have only preserved the issue for appeal and allowed review of the motion to
suppress. Simply put, even ignoring Officer Long's testimony, there was still
overwhelming evidence presented to sustain McCoy's convictions. And as discussed
below, McCoy has essentially already raised a sufficiency argument for the charges for
aggravated assault on a law enforcement officer by challenging multiplicity in his first
appeal. See McCoy, 2015 WL 3632037, at *17.
In short, McCoy fails to show that an appellate court would have reversed the trial
court's decision to deny the suppression motion. As a result, the trial court correctly
denied McCoy's ineffective assistance claim based on Osburn's failure to preserve that
issue for appeal.
Trial counsel did not provide ineffective assistance by failing to contest the unavailability
of a witness.
During the trial, officers testified that they heard Spencer yell "'don't shoot'" after
they entered the hotel room. Then while they were apprehending McCoy and escorting
Spencer from the room, an officer positioned 52 yards away from the room heard
Spencer yell "'he had a gun to my head.'" Spencer also told an officer that McCoy had
made her turn off her cellphone, he would not allow her to yell or acknowledge the
officers' presence outside, and that he held the gun on her and the baby. Osburn objected
to each of these statements as inadmissible hearsay. The State advised the court that a
material witness warrant had been issued for Spencer but that she was unable to be
located. Ultimately, the court ruled the statements were not testimonial since Spencer was
15
not responding to questioning by law enforcement and ruled them admissible under
K.S.A. 2019 Supp. 60-460(d).
McCoy claims he was deprived of his right to confront an opposing witness
because the State did not prove Spencer was unavailable. This is essentially the same
argument he made on direct appeal that those same statements were testimonial hearsay
and did not fall under the excited utterance exception, except that McCoy is now raising
it in the context of an ineffective assistance of trial counsel claim for failing to contest
Spencer's unavailability. Even though that framing of the issue means this court's
decision in his direct appeal does not have res judicata effect, McCoy has still failed to
show that his trial counsel was ineffective for failing to contest Spencer's unavailability.
When reviewing McCoy's ineffective assistance claim, the trial court found it had
correctly decided the issue related to Spencer's statements as officers escorted her from
the hotel room. In the order of denial, the court also determined that "there was no ground
upon which Ms. Osburn could have argued that the State was required to show the
unavailability of [Spencer]." Finally, the court again noted that the evidence in the case
was overwhelming and that the verdict would not have been different had the court
excluded Spencer's statements.
On this point, McCoy generally reargues that the hearsay exception did not apply
and that the Kansas and United States Constitutions both required the availability of a
declarant to be proven before the hearsay statements could be admitted. See State v.
Bratt, 250 Kan. 264, 270, 824 P.2d 983 (1992) (holding that Confrontation Clause of the
Sixth Amendment requires prosecution to either produce or prove unavailability of a
declarant before hearsay statements can be admitted). These arguments are unpersuasive
because the Kansas Supreme Court has since clarified the relevant law.
16
Relying on Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224(2006), the Kansas Supreme Court held that "the test to determine whether the admission
of a hearsay statement violates a defendant's rights under the Confrontation Clause turns
on whether the statement is testimonial." (Emphasis added.) State v. Davis, 283 Kan. 569,
575, 158 P.3d 317 (2006) (overruling Bratt). The Kansas Supreme Court has also
explicitly held that "K.S.A. 60-460(d)(2) does not require that the declarant be
unavailable." State v. Hughes, 286 Kan. 1010, 1020, 191 P.3d 268 (2008). This court is
duty bound to follow Kansas Supreme Court precedent unless there is some indication
that the Kansas Supreme Court is departing from its previous position. State v. Rodriguez,
305 Kan. 1139, 1144, 390 P.3d 903 (2017).
So to prevail on his ineffective assistance claim, McCoy needed to establish
(1) that Spencer's statements were testimonial or, if not, (2) that the excited utterance
hearsay exception did not apply. When determining whether Spencer's statements were
testimonial on direct appeal, this court applied the multifactor test from State v. Brown,
285 Kan. 261, 291, 173 P.3d 612 (2007), that has since been abrogated. See State v.
Williams, 306 Kan. 175, 197, 392 P.3d 1267 (2017) (disapproving a purely mechanical
application of the Brown factors). In Williams, the Kansas Supreme Court said, "the
Brown test was a creature of its time" and instead "the inquiry should generally seek to
identify statements that are by nature substituting for trial testimony." Williams, 306 Kan.
at 197.
The circumstances in which Spencer made these statements clearly support a
conclusion that the statements were not testimonial because they were not made in
response to any sort of questioning. See Brown, 285 Kan. at 291 (discussing third factor
of whether the "primary purpose of the interview" was to obtain "proof of facts
potentially relevant to a later prosecution of a crime"). Spencer was speaking voluntarily
about the distressful situation which she was still fleeing, and which was currently
ongoing. Since the statements were not testimonial, the State did not need to prove that
17
Spencer was unavailable in order to admit her statements under an exception to the
hearsay rule.
Thus, the only remaining argument McCoy can make on this issue is that none of
the hearsay exceptions applied. The trial court determined Spencer's statements were
excited utterances under K.S.A. 2019 Supp. 60-460(d), defined as "[a] statement which
the judge finds was made . . . (2) while the declarant was under the stress of a nervous
excitement caused by such perception." McCoy does not argue that the hearsay exception
did not apply to Spencer's statements. Spencer made these statements during and just
after being freed from a hostage situation. She was still under the stress of the encounter
when she uttered the statements. As a result, the trial court correctly concluded that the
statements were excited utterances, and thus that McCoy has failed to show ineffective
assistance of trial counsel on this claim.
Appellate counsel did not provide ineffective assistance by failing to challenge the
sufficiency of the evidence to support aggravated assault on a law enforcement officer
against Officer Hirt.
McCoy argues Pickering, his direct appellate counsel, provided ineffective
assistance when she failed to argue in his direct appeal that one of his convictions was not
supported by sufficient evidence. He specifically asserts that his conviction for
aggravated assault on a law enforcement officer against Officer Hirt was not supported
by sufficient evidence because Officer Hirt testified that he was not in the hotel room and
that McCoy never directly pointed a gun at him. McCoy voiced these concerns with
Pickering before she filed the brief in his direct appeal, but Pickering did not include the
issue in her brief.
McCoy argues that he was prejudiced by Pickering's failure to raise this argument
in his direct appeal. But the failure of appellate counsel to raise an issue on appeal is not,
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per se, ineffective assistance of counsel. Laymon v. State, 280 Kan. 430, 439, 122 P.3d
326 (2005).
"'In an appeal from a criminal conviction, appellate counsel should carefully consider the
issues, and those that are weak or without merit, as well as those which could result in
nothing more than harmless error, should not be included as issues on appeal. Likewise,
the fact that the defendant requests such an issue or issues to be raised does not require
appellate counsel to include them. Conscientious counsel should only raise issues on
appeal which, in the exercise of reasonable professional judgment, have merit.'" 280 Kan.
at 440 (quoting Baker v. State, 243 Kan. 1, 10, 755 P.2d 493 [1988]).
As the trial court acknowledged in its ruling, Pickering argued in McCoy's direct
appeal that the five convictions for aggravated assault on a law enforcement officer were
multiplicitous. See McCoy, 2015 WL 3632037, at *17. They all involved McCoy waiving
a gun around in the room as officers entered. In reviewing that claim, the panel noted the
conviction for aggravated assault against Officer Hirt required additional analysis
because it arose from the same conduct as the other four aggravated assaults. 2015 WL
3632037, at *19. Ultimately, the panel concluded the charges were not multiplicitous
because the statute allowed multiple convictions arising out of the same conduct. 2015
WL 3632037, at *20.
At trial, Officer Hirt testified that he was standing outside the room to the right
when the other officers entered the room. He heard the officers yell "'gun'" and "'drop the
gun.'" Officer Hirt looked into the room and saw McCoy with his arm wrapped around
Spencer—while also holding a gun in that hand with his finger in the trigger well—and
the other arm holding A.M. Officer Hirt never saw the gun pointed at him but he was
concerned for his safety because the gun was moving around a lot.
Simply put, McCoy fails to establish ineffective assistance for not raising a
sufficiency challenge on this conviction. Even if omitting the argument amounted to
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deficient performance, there is no reasonable probability that the outcome would have
been different. A rational fact-finder viewing Officer Hirt's testimony in the light most
favorable to the State could have convicted McCoy on this charge. See State v. Chandler,
307 Kan. 657, 668, 414 P.3d 713 (2018) (articulating standard of review for sufficiency
challenge on appeal).
McCoy's cumulative error argument fails.
As a final argument, McCoy contends that the cumulative effect of the alleged
errors by trial and direct appeal counsel deprived him of his Sixth Amendment right to
counsel, and that he was denied a fair trial as a result. His cumulative error argument is
unpersuasive for one very fundamental reason: McCoy has established no errors.
In considering a cumulative error claim, the test is whether the totality of the
circumstances reveal that the defendant was substantially prejudiced by cumulative errors
and was denied a fair trial. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014).
Courts regularly find no cumulative error when the record supports no errors raised on
appeal. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015). Even a single error
cannot support reversal under the cumulative error doctrine. State v. Gonzalez, 307 Kan.
575, 598, 412 P.3d 968 (2018). Because McCoy has not established that he was
prejudiced by any of the alleged errors discussed above, the cumulative error doctrine
does not apply.
In sum, the trial court did not err when it denied McCoy's K.S.A. 2019 Supp. 60-
1507 motion.
Affirmed.
***
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ATCHESON, J., concurring: I concur in the result affirming the Reno County
District Court's denial of Deron McCoy Jr.'s motion for habeas corpus relief under K.S.A.
2019 Supp. 60-1507.
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