Coryell v. State

C
                           NOT DESIGNATED FOR PUBLICATION

                                              No. 122,104

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         DYLAN R. CORYELL,
                                             Appellant,

                                                    v.

                                          STATE OF KANSAS,
                                              Appellee.

                                    MEMORANDUM OPINION

        Appeal from Decatur District Court; PRESTON PRATT, judge. Opinion filed May 21, 2021.
Affirmed in part, reversed in part, and remanded with directions.


        Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.


        Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.


Before ARNOLD-BURGER, C.J., POWELL and CLINE, JJ.


        PER CURIAM: Dylan R. Coryell appeals the summary denial of his K.S.A. 60-
1507 motion, raising claims of ineffective assistance of appellate counsel as well as a
claim of newly discovered evidence. Coryell attached a letter to his motion alleging that
another person confessed to firing the weapon that killed the victim of Coryell's crime.
Upon review of the issues presented, we affirm the district court's summary denial of
Coryell's K.S.A. 60-1507 motion as it relates to ineffectiveness of appellate counsel, but
we find that Coryell was entitled to an evidentiary hearing on his newly discovered
evidence claim.


                                                     1
                           FACTUAL AND PROCEDURAL HISTORY


       A jury convicted Coryell of second-degree intentional murder and aggravated
battery in March 2013. A detailed recitation of the facts of the case can be found in this
court's decision on direct appeal.


       Briefly, in October 2011, Coryell was in a relationship with Sarah Campbell, who
was also dating Corey Cook. One evening, Coryell and some friends were partying and
drinking together while Campbell and Cook were also gathered with friends to drink and
shoot firearms. Over the course of the evening, the two groups sent hostile text-messages
to each other, escalating to the point that certain individuals—including Coryell, his
friend Everett Urban, and Cook—arranged to fight. Around 1:30 a.m., Coryell and Urban
went to the house where Cook and Campbell were residing and found Campbell and
Cook sleeping in bed. Upon finding them together, multiple trial witnesses testified that
Coryell fired a shotgun into the bedroom, killing Cook and injuring Campbell. See State
v. Coryell, No. 110,542, 

2016 WL 757568

 (Kan. App. 2016) (unpublished opinion).


       While his direct appeal was pending, this court granted Coryell's motion to remand
the case for a Van Cleave hearing regarding ineffective assistance of his trial counsel,
Justin A. Barrett. On remand, the same district court judge who had made the pretrial
rulings and conducted the jury trial heard 2 1/2 days of testimony from 19 witnesses. The
court denied the motion in a detailed 40-page memorandum decision. Coryell appealed
that ruling, and the panel issued a decision affirming his convictions and sentence, as well
as affirming the district court's rejection of his ineffective assistance claims. Coryell,

2016 WL 757568

, at *6-33.


       In December 2018, Coryell filed a pro se K.S.A. 60-1507 motion, arguing that he
received ineffective assistance from his appellate counsel, Richard Ney, at the Van
Cleave hearing and on direct appeal, and that newly discovered evidence showed Urban

                                               2
confessed to firing the weapon that killed Cory. He attached a handwritten letter from
Gatlin R. Beachel, who allegedly overheard Urban "bragging" to another inmate that he
had pulled the trigger and shot Cook, and that Urban "got away with it because he was
related to the sheriff and that the people . . . on [Coryell]'s side got [threatened] that if
they said anything that they would go to jail."


       The district court held a nonevidentiary preliminary hearing in July 2019, which
Coryell did not attend but at which he was represented by appointed counsel. After
hearing arguments from the parties about whether there should be an evidentiary hearing
held on any of the claims, the court took the matter under advisement.


       The district court summarily denied Coryell's motion in a lengthy written ruling,
addressing each ineffective assistance claim and finding that the newly discovered
evidence was not credible "in light of all the evidence introduced at the original trial to
reasonably produce a different outcome."


       Coryell timely appealed.


                                           ANALYSIS


The district court did not err in summarily denying Coryell's ineffective assistance of
counsel claims.


       Coryell first argues the district court erred in summarily denying his ineffective
assistance of counsel claims in his K.S.A. 60-1507 motion. Although he made 10 total
claims of ineffective assistance directed at Ney's representation on direct appeal, Coryell
only reasserts 2 of them here: (1) whether Ney was ineffective for failing to include trial
exhibits in the appellate record; and (2) whether Ney was ineffective for failing to


                                                3
adequately brief Coryell's ineffective assistance of trial counsel claim based on a
suppression issue.


       Thus, since Coryell concedes that the remaining ineffective assistance claims were
properly denied, we consider them abandoned. See In re Marriage of Williams, 

307 Kan.
960

, 977, 

417 P.3d 1033

 (2018) (issues not briefed are considered waived or abandoned);
see also State v. Lowery, 

308 Kan. 1183

, 1231, 

427 P.3d 865

 (2018) (a point raised
incidentally in a brief and not argued therein is also deemed abandoned).


       The standard of review is de novo.


       When the district court summarily denies a K.S.A. 60-1507 motion after holding a
preliminary hearing, as it did here, an appellate court is in just as good a position as the
district court to consider the merits. Grossman v. State, 

300 Kan. 1058

, 1061, 

337 P.3d
687

 (2014). As a result, this court conducts a de novo review to determine whether the
motion, files, and records of the case conclusively establish that the movant is not entitled
to relief. Beauclair v. State, 

308 Kan. 284

, 293, 

419 P.3d 1180

 (2018).


       To avoid the summary denial of a motion brought under K.S.A. 60-1507, a
movant bears the burden of establishing entitlement to an evidentiary hearing. To meet
this burden, a movant's contentions must be more than conclusory, and either the movant
must set forth an evidentiary basis to support those contentions or the basis must be
evident from the record. If the movant makes such a showing, the court must hold a
hearing unless the motion is a "'second'" or "'successive'" motion seeking similar relief.
Sola-Morales v. State, 

300 Kan. 875

, 881, 

335 P.3d 1162

 (2014) (quoting Holmes v.
State, 

292 Kan. 271

, 274, 

252 P.3d 573

 [2011]).


       To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that the performance of defense counsel was deficient under the totality

                                              4
of the circumstances, and (2) that the deficient performance prejudiced the defendant.
Sola-Morales, 

300 Kan. at 882

 (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]). "To show
prejudice, the defendant must show a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different." State v.
Sprague, 

303 Kan. 418

, 426, 

362 P.3d 828

 (2015).


       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. 

303 Kan. at 426

. 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. Sprague, 

303 Kan. at 426

.


       With that foundation in mind, we turn to Coryell's two claims of ineffective
assistance of appellate counsel.


       Failure to include trial exhibits in record on appeal


       Coryell claims his appellate counsel was ineffective for not including trial exhibits
necessary for proper consideration of his claim that Barrett provided ineffective
assistance by failing to call expert witnesses about his intoxication. We pause to note that
there was no dispute that Coryell's blood-alcohol content was .18 about 5 hours after the
shooting. Coryell, 

2016 WL 757568

, at *3.




                                             5
       This court's decision in Coryell's direct appeal referred multiple times to the
omission of trial exhibits, including those related to Barrett's failure to call expert
witnesses on intoxication at trial. See Coryell, 

2016 WL 757568

, at *8-9. After
concluding that Barrett made a strategic decision not to call expert witnesses and that
doing so did not prejudice Coryell—based on a lengthy discussion of the testimony
elicited at the Van Cleave hearing—the panel explained:


               "Our conclusion is buttressed by [Coryell]'s omission of the trial exhibits from
       the record on appeal. For example, the State's evidence of [Coryell]'s functioning while
       intoxicated included [his] 911 calls, which are omitted from the record. We cannot
       conduct a full evaluation of [Barrett]'s decisions without considering the State's evidence
       which confronted him when planning [Coryell]'s defense.


               "The lack of an adequate record also hampers our prejudice analysis more
       generally. For example, the jury had to evaluate [Coryell]'s account of the shooting which
       he related during the police interview. [Coryell]'s assertion that he caught the shotgun
       with the barrel pointed into the bedroom was the only defense explanation of why the
       weapon fired in [Cook]'s direction. We are unable to fully consider the jury's verdict
       without the diagram and photographs of [the] residence, which could either support or
       call into question the likelihood of [Coryell]'s account. We will continue to discuss
       prejudice in the following issues, but we believe [Coryell] has failed to designate a record
       affirmatively showing prejudice to his criminal defense. See State v. Bridges, 

297 Kan.
989

, 1001, 

306 P.3d 244

 (2013)." (Emphasis added.) 

2016 WL 757568

, at *9.


       Although the panel referred to some specific exhibits when discussing the claim—
like Coryell's 911 calls and the diagram and photographs of the residence—the panel's
larger concern appeared to be that Ney included no trial exhibits.


       The district court denied this claim because both it and the panel concluded that
Barrett's decision not to call expert witnesses on intoxication was a strategic choice made
after thorough investigation. See Coryell, 

2016 WL 757568

, at *8-9. As a result, the court


                                                    6
presumed "that appellate counsel's failure to include trial exhibits on appeal was within
the wide range of reasonable professional assistance because those exhibits bolster the
trial court's factual findings."


       Coryell now challenges this finding, contending that the district court cited no
authority to support its presumption and that the court needed to hold an evidentiary
hearing to consider Ney's testimony on why he omitted the trial exhibits on appeal. He
also asserts that the court's decision was not supported by substantial and competent
evidence. Simply put, his arguments are not persuasive.


       First, Coryell fails to meet his burden to overcome the presumption that Ney's
performance was objectively reasonable. He asserts that his counsel's failure to include
trial exhibits in the appellate record fell below the objective standard of reasonableness.
As support, he relies only on State v. Sisson, 

302 Kan. 123

, 128, 

351 P.3d 1235

 (2015),
and references the longstanding rule that an appellant has a duty to designate a record that
affirmatively shows any claims of error. But he cites no authority to show that violating
this rule constitutes deficient performance. State v. Salary, 

309 Kan. 479

, 481, 

437 P.3d
953

 (2019) (failure to support a point with pertinent authority or show why it is sound
despite a lack of supporting authority or in the face of contrary authority is the same as
failing to brief the issue).


       Moreover, by Coryell's own admission, the missing exhibits "did not provide any
additional insight into the issues presented on appeal." By making this admission, Coryell
asserts that the panel's decision in his direct appeal was somehow hindered by the lack of
trial exhibits because the court could not fully evaluate Barrett's performance. But a
review of the decision shows the panel concluded Coryell had failed to prove Barrett
provided deficient performance, even despite the lack of trial exhibits. Coryell, 

2016 WL
757568

, at *8-9. The panel also made clear that it made its decision regarding counsel's
trial strategy independent of the failure to include exhibits. The failure to include exhibits

                                              7
simply "buttressed" its conclusion. 

2016 WL 757568

, at *9. To buttress means to
"support or reinforce." Webster's New World College Dictionary 204 (5th ed. 2014).


       Second, Coryell likewise fails to show that he was prejudiced by Ney's alleged
deficient performance. Even if this court assumes that failing to include the trial exhibits
fell below the objective standard of reasonableness, Coryell still needs to show a
reasonable probability that the outcome of his appeal would have been different. Sprague,

303 Kan. at 426

. In his direct appeal, the panel concluded that lack of expert testimony
about Coryell's intoxication did not prejudice him because the jury could discern his
intoxication based on the available testimony and the "jurors' lay understanding of the
effects of intoxication." 

2016 WL 757568

, at *9. So in other words, he needs to show that
the panel would have reached a different conclusion, particularly that the jury needed to
hear from experts to understand the extent of his intoxication.


       Coryell contends that the panel had no chance to compare the trial exhibits with
the expert testimony elicited at the Van Cleave hearing that his blood-alcohol level would
have been much higher at the time of the shooting. But by Coryell's own admission, the
specific exhibits—i.e., the photographs and diagram of the house, and his 911 call—
neither cast doubt upon nor firmly supported his version of the events that night. Despite
the omission of the trial exhibits, the panel concluded that expert witness testimony
would have been cumulative, "given the significant amount of lay testimony and
evidence showing [Coryell]'s intoxication and its effects." 

2016 WL 757568

, at *9.


       Ultimately, the jury had a chance to view all the exhibits and could infer that
Coryell's blood-alcohol level was higher at the time of the shooting than during the
interview. And just as the panel determined on direct appeal, the inclusion of expert
testimony on his precise intoxication level at the time of the shooting would not raise a
sufficient probability of undermining confidence in the jury's verdict. Even with the


                                              8
benefit of the omitted trial exhibits, Coryell cannot show prejudice, and thus his claim of
ineffective assistance fails.


       Failure to adequately brief ineffective assistance of trial counsel claim


       In a somewhat related claim, Coryell claims Ney was ineffective for failing to
brief the merits of an ineffective assistance of trial counsel claim, this time based on
Barrett's failure to present expert testimony on intoxication at his suppression hearing. In
particular, Coryell points to Ney's failure to brief the merits of the suppression issue,
thereby abandoning a key element of his ineffective assistance of trial counsel claim. In
short, the suppression motion asserted that the combined effects of Coryell's
"intoxication, adrenalin, and other stress hormones" prevented him from freely and
voluntarily waiving his Miranda rights.


       The record reveals some support for Coryell's claim. In the appellate brief from his
direct appeal, after summarizing the testimony from the Van Cleave hearing, Ney only
made a legal argument that the district court applied the wrong prejudice standard. In
particular, the brief argued,


               "The district court applied the wrong prejudice standard in evaluating this issue.
       The district court hinged its decision on the fact that it would not have granted the motion
       to suppress even if it heard the expert evidence on Defendant's intoxication. The correct
       standard, however, is that a defendant must show that the suppression claim is
       meritorious, and that 'that there is a reasonable probability that the verdict would have
       been different absent the excludable evidence.' [Citation omitted.]" Brief of Appellant,
       

2014 WL 7641214

, at *22.


       The panel determined that Coryell had not shown "a likelihood of prevailing on
the motion" because the district court had concluded the suppression motion was not
meritorious even with the added expert testimony. Coryell, 

2016 WL 757568

, at *11

                                                    9
(citing Styers v. Schriro, 

547 F.3d 1026

, 1030 n.5 [9th Cir. 2008]). The panel declined to
consider the merits of the suppression ruling since Coryell's brief failed to argue the
suppression issue on appeal. 

2016 WL 757568

, at *11.


       To prevail on his claim, Coryell needs to establish that the district court would
have granted the suppression motion given the expert testimony to show he was
prejudiced by Ney's failure to brief that issue on direct appeal.


       As support, Coryell relies on State v. Johnson, 

286 Kan. 824

, 

190 P.3d 207

 (2008).
In Johnson, the Kansas Supreme Court held that the State bears the burden of proving the
voluntariness of a statement by the preponderance of the evidence. 

286 Kan. at 836

.
When considering the voluntariness of a statement, courts look to the following list of
nonexclusive factors:


       "'(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3)
       the ability of the accused to communicate on request with the outside world; (4) the
       accused's age, intellect, and background; (5) the fairness of the officers in conducting the
       interrogation; and (6) the accused's fluency with the English language.'" 

286 Kan. at 836

.


       But as the State correctly points out, Coryell ignores a critical part of the analysis
of the suppression issue. When reviewing a district court's decision on a suppression
ruling, appellate courts generally apply a bifurcated standard. One component requires
the reviewing court to determine whether the district court's factual findings are
supported by substantial competent evidence without reweighing the evidence, assessing
witness credibility, or resolving conflicting evidence. See State v. Martinez, 

296 Kan.
482

, 485, 

293 P.3d 718

 (2013). Simply put, Coryell's argument must fail on this point
because he invites this court to do something it cannot do.




                                                    10
       After the Van Cleave hearing, the district court made detailed findings of fact on
the suppression issue. In particular, the court noted repeatedly that it got the chance to
review the audio and video recordings of Coryell's KBI interview and ultimately found
that expert witness testimony on intoxication would not have changed the court's ruling
on the suppression motion "for the reasons stated in the order denying the motion to
suppress."


       Notably, Coryell's appellate briefing makes no attempt to challenge the district
court's factual findings from that original order of denial. See Salary, 

309 Kan. at 481

(issues not adequately briefed are considered waived or abandoned). Instead, he simply
summarizes the expert testimony and makes a conclusory assertion that "[b]ased on this
evidence, the appellate court would have found that the Miranda waiver was involuntary
and that the statement should have been suppressed." But as the court's original order of
denial shows, the court repeatedly observed Coryell's responses during the interview
were "appropriate and coherent," and that he was "conscious and capable of
understanding what he said and did" despite his blood-alcohol level at the time. Then,
after the Van Cleave hearing, the court considered the expert testimony and still
concluded these observations would still outweigh the added expert testimony about
Coryell's intoxication.


       As a result, Coryell fails to show prejudice because he cannot establish that the
district court would have granted the suppression motion even with expert testimony on
intoxication. The court explicitly stated that the expert testimony would not have affected
its prior decision, since it observed his demeanor and considered his responses during the
interview.


       For these reasons, we find that the district court correctly decided to summarily
deny Coryell's ineffective assistance of counsel claims raised in his K.S.A. 60-1507
motion. Accordingly, we affirm those rulings.

                                             11
The district court erred in summarily denying Coryell's claim based on newly discovered
evidence.


         Coryell next argues the district court abused its discretion when it summarily
denied his request for a new trial based on newly discovered evidence. In particular,
Coryell attached to his motion a handwritten and signed letter alleging that Beachel
overheard Urban confessing to another person that he was one who fired the shot that
killed Cook. Coryell contends the court relied on an invalid basis to reject the new
evidence, specifically that the court believed the evidence was not credible simply
because it conflicted with the evidence presented at trial. Thus, he asks this court to
remand for an evidentiary hearing to determine whether the newly discovered evidence
warrants a new trial.


         In response, the State contends that the facts alleged in the letter contradicted
Coryell's entire defense strategy, which was that the shooting was accidental and a result
of Coryell's intoxication that night. The State also points out that the trial evidence
supported Coryell's version of the events and that his defense strategy partially succeeded
because he was found guilty of the lesser included offense of second-degree intentional
murder. For these reasons, the State argues the district court correctly ruled this evidence
would not have changed the trial outcome given the weight of evidence establishing his
guilt.


         The standard of review is abuse of discretion.


         To start, the parties cite different standards of appellate review, so some discussion
on that point is warranted. As the State notes, appellate courts would generally exercise
de novo review in the context of a summary denial of a K.S.A. 60-1507 motion. See
Trotter v. State, 

288 Kan. 112

, 134, 

200 P.3d 1236

 (2009). But Coryell also correctly
recognizes that appellate courts typically review an order denying a motion for new trial

                                               12
based on newly discovered evidence for an abuse of discretion. State v. Ashley, 

306 Kan.
642

, 650, 

396 P.3d 92

 (2017); see also Moncla v. State, 

285 Kan. 826

, 839-40, 

176 P.3d
954

 (2008) (reviewing summary denial of claim of newly discovered evidence for an
abuse of discretion, despite being raised in the context of a K.S.A. 60-1507 proceeding).


       Upon reviewing the district court's decision, it appears as though the court treated
Coryell's claim of newly discovered evidence as a motion for new trial, despite being
raised in the context of a pro se K.S.A. 60-1507 motion. A district court has a duty to
interpret a pro se pleading based on its substance and content rather than merely its title
or labels. See State v. Redding, 

310 Kan. 15

, 18, 

444 P.3d 989

 (2019). This court
exercises unlimited review over whether a district court properly construed a pro se
pleading. 

310 Kan. at 18

.


       The court began the "Conclusions of Law" section of its order—which it
considered "Applicable to All Issues"—by stating:


               "Coryell has the burden to prove his K.S.A. 60-1507 motion warrants an
       evidentiary hearing; he must make more than conclusory contentions and must state an
       evidentiary basis in support of the claims or an evidentiary basis must appear in the
       record. [Holmes, 

292 Kan. at 274

]; [Edgar v. State, 

294 Kan. 828

, 836, 

283 P.3d 152

       (2012)]. Coryell has the burden of establishing the grounds for relief by a preponderance
       of the evidence. [Supreme Court Rule 183(g) (2020 Kan. S. Ct. R. 223)]."


       But later, the district court discussed the newly discovered evidence claim using
cases dealing exclusively with the denial of a motion for new trial, mainly State v.
Thomas, 

257 Kan. 228

, 

891 P.2d 417

 (1995). In Thomas, the Kansas Supreme Court held
"[a] defendant has no automatic right to a full evidentiary hearing by filing a motion for a
new trial based on alleged newly discovered evidence." 

257 Kan. at 233

. The district
court also determined that "[t]he Court can instead conduct a preliminary inquiry and
determine whether there is a substantial basis for the claim." See State v. Dunn, 

243 Kan.
13

414, 436, 

758 P.2d 718

 (1988) (comparing to procedure for motion under K.S.A. 60-
1507).


         We find the proper standard of review here is for an abuse of discretion because
the district court treated Coryell's claim as a motion for new trial, just like in Moncla. 

285
Kan. at 839-40

. A judicial action constitutes an abuse of discretion if (1) it is arbitrary,
fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error
of fact. State v. Ingham, 

308 Kan. 1466

, 1469, 

430 P.3d 931

 (2018). The moving party
bears the burden of demonstrating an abuse of discretion. Gannon v. State, 

305 Kan. 850

,
868, 

390 P.3d 461

 (2017).


         The district court failed to conduct the proper legal analysis.


         When reviewing whether the district court should have held an evidentiary hearing
before denying a movant's request for a new trial based on newly discovered evidence,
appellate courts must consider whether: (1) the motion alleges facts that do not appear in
the original record and which, if true, would entitle the movant to relief; (2) the motion
adequately identifies available witnesses whose testimony would support the allegedly
new facts and demonstrate that the movant should receive a new trial; and (3) the
movant's newly discovered evidence could have been produced at trial through the
exercise of reasonable diligence. Moncla, 

285 Kan. at 840

.


         Upon review, the district court failed to consider whether Coryell was entitled to
an evidentiary hearing on his claim of newly discovered evidence under the appropriate
inquiry from Moncla. Instead, the court found that Coryell's present showing—i.e., a
letter attached to his motion—did not rise to the level of requiring a new trial because the
alleged facts would not have changed the outcome given the trial evidence establishing
Coryell as the person who shot Cook. The court determined that "there is no reasonable
probability that even if Beachel testified as indicated in his letter, there would be different

                                               14
outcome." (Emphasis added.) But to make that conclusion, the judge needed to assess the
credibility of the newly proffered evidence, which did not happen here.


       We examine the evidence, as the district court should have, based on Moncla's
three-part inquiry to determine whether Coryell should have received an evidentiary
hearing on his claim of newly discovered evidence.


       Under the first prong, we examine whether the motion alleges facts that do not
appear in the original record and which, if true, would entitle the movant to relief.
Moncla, 

285 Kan. at 840

. Ordinarily, a new trial is not warranted when newly proffered
evidence merely tends to impeach or discredit the testimony of a witness. State v.
Richard, 

235 Kan. 355

, 363, 

681 P.2d 612

 (1984).


       The State contends that "whatever Everett Urban's actions were on the night of the
crime, they were known to Coryell [because] they were present together at [the] scene of
the crime when the murder happened." Moreover, Coryell's primary defense strategy was
that the killing was accidental, so the State asserts that this allegedly new evidence would
have only contradicted Coryell's defense and been inconsistent with Coryell's own
statements to Special Agent Mark Kendrick, a KBI investigator, that he fired the gun
accidentally when someone tossed it to him.


       But our review of the written transcript of the interview between Coryell and
Special Agent Kendrick reveals that Coryell told Kendrick he was having trouble
recalling what had happened. Coryell's trial attorney also testified at the Van Cleave
hearing that part of the intoxication defense was that Coryell could not recall the specific
events on the night of the crime because of his severe intoxication and he may have been
"convinced" that he was responsible.




                                             15
       Moreover, this court's decision on direct appeal relied heavily on Urban's
testimony in its recitation of facts. Briefly, according to Urban, he and Coryell argued
outside the bedroom about waking Cook and Campbell before Urban decided to leave. As
he left, he turned and saw Coryell holding the gun and aiming it into the bedroom. Urban
said he kept walking toward the front door but then he heard a gunshot, after which
Coryell ran outside the house. But another witness testified that Urban told him he was
"'right beside'" Coryell when he fired the shot. See Coryell, 

2016 WL 757568

, at *2.


       It is clear from the transcript of Coryell's 60-1507 hearing that the district judge
struggled with his responsibility to conduct an evidentiary hearing on these new claims.
The judge repeatedly asked the State how he was supposed to analyze the newly
discovered evidence. The State conceded that to determine whether the new evidence
would have affected the outcome of the trial, the court would have to determine the
credibility of the declarant, Beachel. The prosecutor opined, "[I]f you want to make a true
credibility determination of this individual, we would need to have an evidentiary
hearing." Defense counsel continued to push for an evidentiary hearing, and both the
judge and the prosecutor conveyed their concern that if they did not conduct an
evidentiary hearing on the new claim, the Court of Appeals might just send it back for the
court to conduct a hearing. They were correct to have that concern.


       Simply put, because the district court made no specific credibility findings,
deference to the district court's implied credibility determination cannot serve as the basis
for this court's decision. See Trotter, 

288 Kan. at 137

. Without a full evaluation of
Beachel's credibility, this court lacks relevant information that could help in determining
whether Coryell would have a right to relief. Testimony from Beachel that Urban
confessed to firing the weapon and believed he "got away with it" would help undermine
Urban's credibility and also potentially exonerate Coryell. This satisfies the first prong of
the Moncla test. 

285 Kan. 840

.


                                             16
       As for the second prong—whether the motion adequately identifies available
witnesses whose testimony would support the allegedly new facts—Coryell's motion
named Beachel as a potential witness and his appointed counsel also mentioned the
possibility of calling Coryell's previous trial attorney and another individual mentioned in
the letter to support the allegedly new facts. So the second prong is also satisfied.
Moncla, 

285 Kan. at 840

.


       Finally, on the third prong, the district court found, and the State concedes, that
Coryell could not have produced the letter at trial because the conversation would have
occurred months later.


       As a result, we conclude the district court abused its discretion by committing an
error of law in denying a hearing on Coryell's newly discovered evidence claim. Based on
the legal analysis required by our Supreme Court in Moncla, the merits of this claim
require an evidentiary hearing to determine whether Beachel's testimony about the
conversation he allegedly overheard is credible and could raise a reasonable probability
of a different outcome.


       Affirmed in part, reversed in part, and remanded for an evidentiary hearing on
Coryell's motion for new trial.




                                             17

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