MEMORANDUM OPINION
Derek Campbell appeals the district courts summary denial of his motion filed pursuant to K.S.A. 60-1507, alleging his trial counsel had been ineffective. After a careful review of the record, we find Campbells trial counsel did not provide ineffective assistance. Thus, we affirm.
Factual and Procedural Background
Campbells direct appeal details the facts of his criminal trial. State v. Campbell, 308 Kan. 763, 764-68, 423 P.3d 539 (2018). We review only the facts relevant to this appeal.
Shortly after midnight on April 8, 2015, Campbell dialed 911 from his house to report that he had shot his wife, Rebecca. Campbell told the dispatcher his handgun inadvertently fired when he removed it from his holster and the bullet struck his wife, who was sitting in a recliner. The State eventually charged Campbell with first-degree murder.
While awaiting trial in Sedgwick County Jail, Campbell spoke with another inmate, Ronald Rudisill, about the shooting. Rudisill testified at trial that Campbell first told him he had lost his balance while unholstering his gun, which caused Campbell to squeeze the trigger and accidently shoot Rebecca. Rudisill did not believe Campbell. Rudisill testified Campbell eventually confessed to shooting Rebecca intentionally. On cross-examination, defense counsel asked Rudisill about his criminal history, including a forgery conviction Rudisill had omitted on direct examination. The State tried to rehabilitate Rudisill with testimony from an Assistant United States Attorney, Terra Morehead, who had experience with Rudisill from prior criminal cases. Morehead testified she found Rudisill “ ‘extremely credible’ ” when she worked with him.
Campbell testified in his own defense, claiming he had removed the bullets from his gun and started dry firing it, but, on the third dry fire, the gun went off and Rebecca was shot.
The jury convicted Campbell of first-degree premeditated murder. The district court sentenced Campbell to a hard 50 life sentence.
Campbell appealed, but the Kansas Supreme Court affirmed his conviction and sentence. 308 Kan. at 776. Notably, the court declined to consider Campbells claim, raised for the first time on appeal, that the district court erred in admitting specific instances of conduct evidence used to bolster the credibility of Rudisill on the grounds that Campbells trial counsel had failed to object to the admission of such evidence on those grounds. 308 Kan. at 770-71.
Not surprisingly, this led Campbell to file his present pro se motion pursuant to K.S.A. 60-1507, claiming his trial counsel was ineffective for failing to properly challenge Moreheads testimony, for failing to fully investigate Rudisills criminal history and challenge his credibility, and for failing to object to prosecutorial error based on the States presentation of Moreheads testimony.
The district court summarily denied Campbells motion and held, among other holdings, that counsels failure to properly object to the States character evidence was unreviewable trial strategy.
Campbell timely appeals.
Did the District Court Err in Summarily Denying Campbells K.S.A. 60-1507 Motion?
Campbell argues the district court erred in summarily denying his K.S.A. 60-1507 motion. In his motion, and on appeal, Campbell argues his trial counsel provided ineffective assistance in three ways. First, Campbell asserts his counsel was ineffective for not properly objecting to Moreheads opinion testimony concerning Rudisills credibility. Second, Campbell argues his trial counsel was ineffective for not properly investigating Rudisills criminal history or for not impeaching Rudisill. Finally, Campbell alleges his trial counsel was ineffective for not objecting to prosecutorial error stemming from the State calling Morehead as a witness to rehabilitate Rudisills credibility.
Standard of Review
A district court has three options to resolve a K.S.A. 60-1507 motion. When the district court determines the motion, files, and records conclusively show the movant is not entitled to relief and summarily denies the motion, we review that summary denial de novo without deference to the district courts decision. Beauclair v. State, 308 Kan. 284, 293, 319 P.3d 1180 (2018).
Analysis
When a prisoner challenges his or her conviction or sentence under K.S.A. 2020 Supp. 60-1507, the district court must hold an evidentiary hearing on the motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” K.S.A. 2020 Supp. 60-1507(b). The movant bears the burden to prove such a motion warrants an evidentiary hearing. Also, the movant must make more than conclusory allegations and must state the evidentiary basis that supports the allegations, or such a basis must appear in the record. Once the movant satisfies that burden, the district court must grant a hearing, unless the motion is successive and seeks similar relief. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). When determining whether an evidentiary hearing must be held, the district court generally accepts the motions factual allegations as true, but those factual allegations must be specific and not mere conclusions. Skaggs v. State, 59 Kan. App. 2d 121, 130-31, 479 P.3d 499 (2020), rev. denied 313 Kan. 1042 (2021).
In his K.S.A. 60-1507 motion, Campbell attacks his trial counsels effectiveness. The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to assistance of counsel. This right applies to the states through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Khalil-Alsalaami v. State, 313 Kan. 472, 484-85, 486 P.3d 1216 (2021). The right to counsel includes the right to effective assistance of counsel to ensure criminal defendants receive a fair trial. Claims alleging ineffective assistance of counsel are analyzed under the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by the Kansas Supreme Court in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). Khalil-Alsalaami, 313 Kan. at 485. The defendant must satisfy both prongs of the test: (1) that defense counsels performance “was deficient under the totality of the circumstances” and (2) that the deficient performance prejudiced the defendant and “there is a reasonable probability a different result would have occurred absent the deficiency.” State v. Adams, 311 Kan. 569, 578, 465 P.3d 176 (2020); see Strickland, 466 U.S. at 687.
Under the first prong, to establish deficient performance, “ ‘the defendant must show that counsels representation fell below an objective standard of reasonableness.’ Strickland, 466 U.S. at 688.” Khalil-Alsalaami, 313 Kan. at 485. A courts scrutiny on an attorneys past performance “is highly deferential and viewed contextually, free from the distorting effects of hindsight.” 313 Kan. at 485. The court indulges in a strong presumption that counsels conduct falls within the wide range of reasonable, effective representation. Strickland, 466 U.S. at 689.
“Under Stricklands second prong, defendants must show the deficient performance of counsel was prejudicial. To do so, defendant must establish with reasonable probability that the deficient performance affected the outcome of the proceedings based on the totality of the evidence. ‘ “A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” ’ [Citations omitted.]” Khalil-Alsalaami, 313 Kan. at 486.
A. Campbell was not prejudiced by Moreheads testimony.
In his first ineffective assistance argument, Campbell alleges his trial counsel failed to properly object to Moreheads testimony. Our Supreme Courts opinion in Campbells direct appeal explains the scene nicely. Campbells counsel attacked Rudisills credibility, extensively cross-examining him about his criminal history, including a 2006 forgery conviction not mentioned on direct examination. Trial counsel also asked about other times Rudisill provided prosecutors with information and if Rudisill remembered the name of a federal prosecutor he provided information to in 2006. Rudisill responded with Moreheads name.
The State sought to call Morehead as a witness to rehabilitate Rudisills credibility. Campbells counsel entered a “ ‘multipart’ ” objection to Moreheads testimony:
“ ‘One, I think shes being called to vouch for [Rudisill]. Two, I think shes being called to bolster the States witness credibility. Three, Mr. Rudisill has been excused from his subpoena. I understand that as far as the prosecution knows he is not here. Were going to be hearing hearsay statements from Mr. Rudisill. I dont know whether they will be hearsay statements ․ he has made before and I think under Crawford thats inadmissible. So I object to calling Miss Morehead.’ ” Campbell, 308 Kan. at 769.
Trial counsel informed the district court that he suspected the State would call Morehead and ask if Rudisill testified in other cases and if he told the truth. The district court allowed Morehead to testify about her opinion of Rudisills veracity because the defense had attacked Rudisills credibility. The district court warned the State that it must lay a sufficient foundation to admit Moreheads testimony. The district court also granted Campbells trial counsel a standing objection. Counsel also renewed all objections the next day when the State called Morehead to testify. “Morehead generally testified that Rudisill had provided her information in three prior cases she had worked on, and he testified in two of them.” 308 Kan. at 769. Morehead testified that she found Rudisill “ ‘extremely credible’ ” on each occasion she worked with him.
The Supreme Court noted Campbells difficulty on direct appeal was that Morehead was obviously going to bolster Rudisills testimony because that is the purpose of rehabilitation testimony. 308 Kan. at 770. The Supreme Court believed Campbells trial counsel “either missed or intentionally chose not to assert the more salient objection below, which is that Moreheads proposed testimony would impermissibly utilize specific prior instances to rehabilitate Rudisills credibility as opposed to offering mere opinion testimony or evidence of reputation.” 308 Kan. at 770. The Supreme Court found Campbells argument waived because trial counsel objected before the district court on different grounds. 308 Kan. at 770-71. The dissent disagreed, finding trial counsels objection preserved the issue and stating the Supreme Court should have reversed Campbells conviction and remanded for a new trial. 308 Kan. at 777 (Johnson, J., dissenting).
In light of the Supreme Courts ruling, Campbell alleged in his pro se 60-1507 motion that trial counsel was ineffective for not objecting to Moreheads testimony because it would have impermissibly used specific prior instances. The district court disagreed, finding defense counsels choice was one of trial strategy. See State v. Butler, 307 Kan. 831, 853-54, 416 P.3d 116 (2018) (strategic and tactical trial decisions are within lawyers province).
A party may introduce evidence to support the credibility of a witness. K.S.A. 60-420. However, “evidence of specific instances of [a witness] conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.” K.S.A. 60-422(d). When a persons character or character trait is at issue, “it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the persons conduct․” K.S.A. 60-446. But “evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible.” K.S.A. 60-447(a). Thus, a witness credibility or lack thereof may be proven by testimony in the form of opinion testimony or evidence of reputation but “may not be proven by specific instances of the witnesss past conduct.” State v. Lewis, 252 Kan. 535, 536-37, 847 P.2d 690 (1993).
Campbell argues his trial counsel was ineffective for allowing Morehead to testify when Morehead was not a member of Rudisills community. Relying on State v. Penn, 41 Kan. App. 2d 251, 268, 201 P.3d 752 (2009), Campbell asserts that, to admit character evidence, an impeaching witness must be (1) a member of the same community as the witness to be impeached, (2) a resident of that community for a substantial period, (3) aware of the general reputation of the witness for a specific character trait, and (4) know the witness has a reputation for the particular character trait in the community. Campbell asserts Moreheads testimony violates Penn because she testified only to three instances of conduct and, as an assistant United States attorney, is not a member of the same community as Rudisill, a “career criminal.”
We need not resolve the difficult question of whether Moreheads testimony was proper opinion testimony or improper specific instances of conduct evidence used to bolster Rudisills credibility. Even if we assume that such evidence was improper and Campbells trial counsel was deficient for failing to properly object to such testimony, we conclude Campbell was not prejudiced by it.
First, it was Campbells trial counsel who initially raised Rudisills history of cooperation with prosecutors and law enforcement in counsels extensive cross-examination of Rudisill. In other words, Rudisills dealings with prosecutors and Morehead were before the jury before the State even attempted to call Morehead as a rehabilitation witness. In fact, the State only decided to call Morehead because trial counsels cross-examination was so effective. In other words, assuming trial counsels performance was deficient for failing to object to Moreheads testimony as improper testimony of specific instances, and assuming the district court would have sustained that objection, those instances would have still been before the jury from Rudisills cross-examination.
Campbell also cannot show prejudice because the other evidence at trial against him was strong. Tiffany Libel, a former and current love interest, and Tonya Campbell, Campbells sister-in-law, both testified about Campbells and Rebeccas unhappiness, their mutual jealousy, and the general difficulties in their marriage. The State also introduced Facebook messages between Campbell and Libel, where Campbell told Libel about his displeasure with Rebecca, that he had discussed divorce frequently with Rebecca, and that he wanted another child with someone other than Rebecca. Several of the messages from Campbell to Libel were sexual in nature. Campbells computer also revealed Campbell searched for divorce-related information and visited several dating sites.
Finally, Campbells conflicting stories were implausible and harmed his credibility. When law enforcement arrived after Campbell called 911, Campbell claimed his gun accidently discharged when he removed it from its holster. At trial, Campbell claimed he removed the gun from its holster and unloaded the bullets into his hand. He placed the gun in its holster and checked on their daughter. While waiting for Rebecca to plug in his phone to charge, he started messing around with his gun and dry firing it. On the third dry fire, it went off and Campbell discovered a spent cartridge in the chambers. Campbell then noticed Rebecca slumped over in her chair.
Campbell cannot establish a reasonable probability that his trial counsels failure to properly object to Moreheads testimony as impermissible evidence of specific conduct affected the outcome of the trial. See Khalil-Alsalaami, 313 Kan. at 486. Because Campbell has failed to establish prejudice, he cannot show his trial counsel provided ineffective assistance.
B. Trial counsel properly investigated Rudisills criminal history and effectively used it to impeach Rudisill.
Campbell also complains of what he views as his trial counsels failure to sufficiently investigate Rudisills criminal history or a failure to sufficiently impeach Rudisill based on his criminal history.
A trial counsel has a duty to make a reasonable investigation or make a reasonable decision that makes an investigation unnecessary. In an ineffective assistance case, a decision not to investigate is assessed for reasonableness under the circumstances, “ ‘applying a heavy measure of deference to counsels judgments.’ ” Butler, 307 Kan. at 854.
Our Supreme Court noted in Campbells direct appeal that Campbells trial counsel cross-examined Rudisill extensively about his criminal history. Campbell, 308 Kan. at 768. That cross-examination included information about a forgery conviction that Rudisill failed to mention on direct examination. Trial counsel questioned Rudisill at length about the prior cases in which he provided information or assistance to the prosecutors. Campbells trial counsel also questioned Rudisill about his motives in providing information and testifying in Campbells case. Counsels cross-examination was effective enough at harming Rudisills credibility that the State felt compelled to call Morehead—originally listed as a potential defense witness—to rehabilitate Rudisills credibility.
Campbell does not explain what more he believed his trial counsel could have done to impeach Rudisill based on Rudisills criminal history. Indeed, while the extent of trial counsels investigation is unknown, his knowledge was sufficient to damage the credibility of Rudisill enough for the State to call a rehabilitation witness. Campbells trial counsels performance in this instance was not deficient.
But even if we were to find trial counsels performance deficient, Campbell cannot establish prejudice. Rudisill testified about his criminal history on direct examination, as well as about his dealings with prosecutors in other cases. A copy of his criminal history worksheet was also admitted by the State. Thus, the jury was aware of Rudisills extensive criminal past.
C. The prosecutor did not engage in misconduct.
Campbells final assertion of ineffective assistance of counsel alleges that his trial counsel failed to object to prosecutorial misconduct. Campbells argument appears to be, relying on the notion that prosecutors have a duty to properly present their case, that the prosecutor engaged in misconduct for knowingly seeking to introduce improper specific instances of conduct evidence to bolster Rudisills credibility. See State v. Ruff, 252 Kan. 625, 636, 847 P.2d 1258 (1993) (duty of prosecutor to properly present case). Campbell alleges his trial counsels failure to object to this misconduct was tantamount to ineffective assistance of counsel.
The district court found trial counsel was not ineffective because the record did not show the prosecutor engaged in any error. As the district court found, the State sought to call Morehead only after trial counsel challenged Rudisills credibility. Moreover, Campbells trial counsel did object to the State calling Morehead to rehabilitate Rudisills credibility, arguing Morehead would vouch for and bolster Rudisills credibility. The trial court overruled trial counsels objection. Thus, Campbells trial counsel did attempt to prevent Moreheads testimony of her opinion of Rudisills credibility.
Unlike prosecutorial error, acts of “ ‘prosecutorial misconduct’ are erroneous acts done with a level of culpability that exceeds mere negligence.” State v. Sherman, 305 Kan. 88, 114, 378 P.3d 1060 (2016). For a prosecutors acts to constitute misconduct, the prosecutor must act “with knowledge and intent outside the wide latitude afforded prosecutors, or with a malicious or gross disregard for the fair trial rights of the defendant.” 305 Kan. at 114.
Campbell claims the prosecutor offered Moreheads testimony knowing it was improper specific instances of conduct evidence to be used to bolster Rudisills credibility. The record does not support this allegation. It was Campbells trial counsel who subpoenaed Morehead to testify in the first place, and, as the district court found, the State only sought to present Moreheads testimony after trial counsels damaging cross-examination of Rudisill. Moreover, the prosecutor did not attempt to introduce Moreheads testimony after an adverse ruling by the trial court as it overruled trial counsels objection to the State calling Morehead as a witness. Finally, in our view, the question of whether Moreheads testimony should be properly characterized as legitimate opinion evidence or improper specific instances of conduct evidence is a highly debatable one. Thus, we see no bad faith on the part of the prosecutor by offering Moreheads testimony.
Campbells prosecutorial misconduct argument strikes us as his attempt to attack the admission of Moreheads testimony via another route. But as we have already explained, the key question is whether Moreheads testimony affected the outcome of the trial. Again, even if we assume that Campbells trial counsel had failed to properly object to Moreheads testimony by arguing that it was impermissible specific instances of conduct evidence, such a failure was not prejudicial to Campbell as the evidence of his guilt was strong even without Moreheads testimony. Our review of the record shows that Campbells trial counsel was not ineffective and that Campbell has failed to meet his burden to show his motion warranted an evidentiary hearing. The district court did not err in summarily denying Campbells K.S.A. 60-1507 motion.
Affirmed.
Powell, J.: