Friday v. State

F
                           NOT DESIGNATED FOR PUBLICATION

                                              No. 122,555

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           SHANNA FRIDAY,
                                              Appellant,

                                                    v.

                                          STATE OF KANSAS,
                                              Appellee.

                                   MEMORANDUM OPINION

        Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed July 9, 2021.
Affirmed.


        Brenda J. Clary, of Law Office of Brenda J. Clary, of Lawrence, for appellant.


        Jon Simpson, assistant district attorney, Suzanne Valdez, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before POWELL, P.J., BRUNS, J., and STEVE LEBEN, Court of Appeals Judge Retired,
assigned.


        LEBEN, J.: Shanna Friday appeals the district court's denial of her claim that the
attorney who represented her in a murder trial provided ineffective assistance. An edited
video of her interrogation by police was shown to the jury, and Friday argues that her
attorney should have done more to keep that video from being shown at trial.


        But her trial attorney made a strategic decision that showing it was the best way to
defend her; by doing so, the jury heard her statements about what happened even though
she didn't testify at trial. Attorneys have wide latitude to make strategic choices like that,
and the district court concluded the attorney made a reasonable strategic choice. We
agree with that conclusion.


        Friday had also argued at one point that her trial attorney should have made
additional arguments that the statements she made during the interrogation were coerced,
not voluntary. But the district court reviewed that and found her statements were
voluntary, and Friday does not challenge that conclusion here. Since the statements were
voluntary—and thus admissible—and her attorney made a reasonable strategic decision
to use them at trial, we agree with the district court's conclusion that Friday's trial
attorney provided constitutionally adequate representation. We therefore affirm the
district court's judgment.


                          FACTUAL AND PROCEDURAL BACKGROUND


        Friday was convicted in a jury trial of reckless second-degree murder in the 2008
death of Jerry Deshazer. The district court sentenced her to 174 months in prison. She
appealed, but the Kansas Supreme Court found no reversible trial errors and affirmed her
conviction and sentence. State v. Friday, 

297 Kan. 1023

, 

306 P.3d 265

 (2013).


        After a defendant has completed the direct appeal, he or she can bring further
challenges in a habeas corpus proceeding. In a habeas action, the defendant can bring a
claim that the defense attorney did an inadequate job at trial; that's the claim Friday made
here.


        Friday's habeas claim, as amended after an attorney was appointed to assist her,
claimed her trial attorney's work had been inadequate in several respects. The district
court found that none of them presented enough merit to warrant an evidentiary hearing.
But Friday appealed that decision to our court, and we found that two claims should
receive further review:


                                               2
   (1) that the attorney did not adequately argue that Friday's statements in a videotaped
       police interrogation were involuntary and therefore inadmissible; and
   (2) that the attorney did not adequately argue even if Friday's statements were
       voluntarily made, the videotaped interrogation still should not be admitted because
       its content was objectionable for other reasons.
See Friday v. State, No. 115,234, 

2016 WL 6920369

, at *4-6 (Kan. App. 2016)
(unpublished opinion).


       The district court held an evidentiary hearing on those points. Two witnesses
testified: Friday's trial attorney, Hatem Chahine, and Lance Flachsbarth, one of the two
police detectives who interrogated Friday. The court also reviewed both the version of the
interview played for the jury and a full version (without redactions).


       One of the questions the district court had to resolve was whether Chahine's trial
strategy—to allow presentation to the jury of Friday's videotaped statements—was
reasonable. To consider that, we'll need to provide a bit of an overview of the charge
against Friday and the other key evidence.


       Friday was convicted of reckless second-degree murder. At the State's request, the
trial court gave the jury an instruction that Friday could be convicted if she aided or
abetted in the crime by assisting in its commission. See Friday, 297 Kan. at 1042. At that
time, reckless second-degree murder was defined as the killing of a person committed
"unintentionally but recklessly under circumstances manifesting extreme indifference to
the value of human life." K.S.A. 21-3402(b). The trial court also instructed the jury that
reckless conduct is "done under circumstances that show a realization of the imminence
of danger to the person of another[] and a conscious and unjustifiable disregard of that
danger." So her conviction meant that the jury agreed that she had at least aided in
reckless conduct that caused Deshazer's death and showed extreme indifference to the
value of human life.


                                              3
       There were three people who had been with Deshazer the evening before he was
found dead: Jerod Buffalohead, Jarvis Jones, and Friday. Buffalohead and Jones testified
at Friday's trial. Each of the three told a different story about what had happened, but
some basic facts were pretty clear. Someone had beaten Deshazer badly, and they'd left
him badly injured. Chahine had to create at least reasonable doubt about Friday's guilt.


       As an overview, Buffalohead would testify that Friday hit Deshazer in the face
with a bottle—and that the bottle broke on his face. Jones would testify that Buffalohead,
with encouragement from Friday, hit Deshazer five or six times while Deshazer was
sitting in a chair. Friday told police that she had hit Deshazer in the face three times, but
only after Buffalohead and Jones had beaten him. In Friday's direct appeal, our Supreme
Court summarized their testimony and the initial police discovery of Deshazer's death:


               "On February 2, 2008, Deshazer was found dead in a bathtub in his mobile home
       in Lawrence. His body was covered in blood, and according to the coroner, his face was
       'just bashed in.' The coroner determined the cause of death was blunt force injuries to the
       head, with additional contributing medical conditions.


               "The night before Deshazer's death, he got together at his home with Jerod
       Buffalohead, Jarvis Jones, and defendant Friday. Buffalohead and Jones arrived around
       4:30 p.m., and Friday arrived around 5 p.m. All four drank alcohol together throughout
       the evening. Shortly after arriving, Buffalohead left and returned around 8:45 p.m.


               "At one point, Friday got into a verbal altercation with Deshazer. Their argument
       never became physical, and they eventually cooled down.


               "Shortly after Buffalohead returned to Deshazer's home, a physical altercation
       began. Buffalohead, Friday, and Jones each offered different versions of the episode that
       resulted in Deshazer's death.




                                                    4
"Jerod Buffalohead


        "According to Buffalohead's testimony for the defense, he heard arguing when he
returned to the mobile home around 8:45 p.m. Somebody told Buffalohead that he owed
Deshazer money, so Buffalohead offered to pay Deshazer. But Deshazer said
Buffalohead did not owe him anything. While Buffalohead was getting ice, 'a fight
started' between Friday and Deshazer. Buffalohead testified:


        "'I'm not real sure how the fight started, but I heard a slap, I heard a thud on the
ground and—
        ....
        "' . . . [w]hen I heard all that, I turned around and Jerry [Deshazer is] on, is on,
not on top of her—I don't know if they fell, I don't know—
        ....
        "'. . . I don't know if they tripped, but I pulled [Deshazer] off of [Friday].'


        "After Buffalohead pulled Deshazer from Friday, he sat Deshazer in a chair and
Friday momentarily left the room. When she returned, she again argued with Deshazer.
According to Buffalohead, 'Jerry had a small bottle and I think that was plastic, but
he threw it and it was, it landed in between 'em or he threw it on the ground.'


        "After Deshazer threw the bottle, Friday slapped him and they started fist
fighting. Buffalohead then separated them. Jones also intervened and began hitting
Deshazer. Buffalohead cussed at Jones for hitting Deshazer. Friday then hit Deshazer in
the face with a bottle. According to Buffalohead, he tried to grab the bottle, but it
shattered on Deshazer's head.


        "Jones continued to punch Deshazer's face until Buffalohead pulled him away.
When Deshazer then stood up from his chair and started to go after Jones, Buffalohead
threw a blanket over Deshazer to calm him down. Deshazer tripped over the blanket; then
Buffalohead and Jones picked him up and put him back in his chair. After Buffalohead
asked Friday if she had called for help, he left to go to his parents' house.




                                               5
"Shanna Friday


        "According to Friday's statements to police, at some point in the evening
Buffalohead became angry at how Deshazer was treating Friday. So Buffalohead and
Jones began beating Deshazer while he was sitting in a chair. They eventually threw a
blanket over his head. Friday then punched Deshazer three times in the face, with
Buffalohead and Jones moving out of her way. During the beating, Deshazer 'fought with
his mouth' by 'talking shit.' According to Friday, Jones hit Deshazer with an ashtray, but
she repeatedly denied anybody hit Deshazer with a bottle.


        "After the physical altercation ended, Friday gave Deshazer water, some pills,
and a blanket. She also tried to wipe him off. When she offered to call the police or an
ambulance, he declined. Friday then lay on the couch and fell asleep. She awoke in the
middle of the night and noticed Deshazer stumbling from one end of the home to the
other. She also saw excrement. Friday apparently went back to sleep and left around 8
a.m. Before she left, Friday asked Deshazer if he was doing OK and if he wanted her to
call the police or an ambulance. Deshazer responded from the bathroom that he was OK
and did not want Friday to call anyone for help.


"Jarvis Jones


        "According to Jones' testimony for the State, before Buffalohead returned to the
home Deshazer said that Buffalohead owed him money. Friday then encouraged
Deshazer to tell Buffalohead this when he came back. Buffalohead then walked in and
asked, 'Tell me what?' So Friday told Buffalohead that Deshazer thought Buffalohead
owed him money. Buffalohead then stood over Deshazer, and Deshazer 'let the matter
go.'


        "Jones had little recollection of the remaining events because he testified he was
drunk and had blacked out from the alcohol. The next thing Jones remembered was
people yelling. He saw Buffalohead hit Deshazer five or six times while Deshazer was
seated in a chair. While Buffalohead was the only person Jones saw hit Deshazer, Friday
was egging Buffalohead on by saying, 'That's what you get, that's what you get.'
Buffalohead then threw a blanket or rug over Deshazer's head.



                                             6
               "Jones soon passed out again. When he awoke at 2:30 a.m., Jones saw Deshazer
       moaning in his chair with his head back. Deshazer's face and chest area were bloody.
       Jones then saw Deshazer 'slump' out of his chair and crawl to his bedroom. Jones left,
       intending to return to his own home, but he ended up drinking with Deshazer's neighbor.
       At dawn, Jones left the neighbor's home and returned to Deshazer's where he fell asleep
       in a back bedroom.


       "Finding the body and the police investigation


               "Later that morning Jim Vincent arrived at Deshazer's home. Vincent could not
       find Deshazer and left. He returned an hour later and asked Nancy Kelch to look for
       Deshazer. Kelch found him dead in his bathroom.


               "When police arrived, they found broken glass—including the neck of a whiskey
       bottle covered in blood and a broken ashtray—in Deshazer's home. DNA on the broken
       ashtray and on the neck of the broken bottle matched Deshazer, while DNA on the bottle
       mouth matched Buffalohead. The police also found several items covered in blood,
       including a comforter and pillow. They further noticed a vast amount of blood, including
       significant amounts on Deshazer's recliner, on his floor, and in his bathroom.


               "The next day police found bloody clothes in a trash can outside of Friday's
       residence. Friday admitted the clothes belonged to her, including a jacket, a pair of shoes,
       athletic pants, a T-shirt, a pair of socks, and women's underwear. DNA on the bloody
       jacket matched Deshazer. Friday agreed to accompany police to their station where she
       was read her Miranda rights and questioned." Friday, 297 Kan. at 1027-31.


       The district court found that Friday's statements to the police had been made
voluntarily, so a motion to exclude them as involuntary would not have been successful.
In this appeal, Friday "does not directly challenge the . . . conclusion that her statement to
detectives was voluntary and admissible." Rather, she argues that her "counsel's decision
to abandon the [voluntariness] inquiry in favor of using the video" was unreasonable.




                                                    7
       But the district court also found that Chahine's strategy was a reasonable one:


               "Mr. Chahine testified . . . that it was a deliberate strategy to have the jury hear
       Ms. Friday's statement. Ms. Friday did not want to testify, but she felt she had made a
       compelling argument for innocence, or at least an argument that she was less culpable
       than others who were present on the night of the victim's death, and she wanted the jury
       to hear her version of the events. Mr. Chahine combined her statement to the detectives
       with the testimony of Mr. Buffalohead. Buffalohead admitted he hit the victim. Pictures
       of his hands and blood on his clothes corroborated his admission. His DNA was found on
       the broken bottle. Buffalohead attempted to give Friday a self-defense claim by testifying
       the victim hit her. . . . The strategy here was to shift the blame to Buffalohead and
       Chahine made some very strong points with Buffalohead's admissions. This then forced
       the State in its cross-examination to make Buffalohead out to be a liar and also point to
       him as the killer. This gave Chahine talking points in his closing to paint Buffalohead,
       not as a contributor to the death of the victim, but [as] the person solely responsible for
       his death.


               "In the cross-examination of Jones, Chahine got Jones to admit he had blood on
       him; that Buffalohead cut the victim's head, not Friday; that Buffalohead hit the victim[;]
       and finally, Jones admitted to the jury that at the preliminary hearing, he testified Friday
       had nothing to do with killing the victim. This presentation of the events was strategically
       thought out by Mr. Chahine. Mr. Chahine may not have received an acquittal for his
       client, but his performance was effective[;] it was reasonable and strategic decisions were
       made to weave a consistent narrative for the jury by combining the testimony of Jones
       and Buffalohead with that [from the videotaped interrogation] of Ms. Friday. The fact
       that it was not a winning strategy does not mean counsel was ineffective."


       Friday then appealed to our court.


                                               ANALYSIS


       Well-established rules apply when a defendant seeks to set aside a conviction
based on the claim that the defense attorney provided representation so ineffective that it


                                                     8
was below constitutionally required standards. The defendant has the burden to show two
things: (1) that the attorney's work was below minimum standards and thus
constitutionally deficient; and (2) that the attorney's substandard work prejudiced the
defendant. Mattox v. State, 

293 Kan. 723

, 725, 

267 P.3d 746

 (2011). The second part of
that test ordinarily requires showing a reasonable probability that the result of the trial
would have been different but for the attorney's substandard work. Strickland v.
Washington, 

466 U.S. 668

, 687, 

104 S. Ct. 2052

, 

80 L. Ed. 2d 674

 (1984); Mattox, 293
Kan. at 725-26. In sum, what is often called the Strickland test requires two showings—
constitutionally deficient representation and prejudice to the defendant. If those showings
are made, we set aside the conviction and send the case back for a new trial with proper
representation for the defendant.


       With the background facts and these rules in mind, we return to the specific claims
that we determined in the earlier habeas appeal merited further review: (1) that the
attorney did not adequately argue Friday's statements to police were involuntary and thus
inadmissible; and (2) that the attorney did not adequately argue in the alternative that
even if the statements had been voluntarily made, they still should not have been
admitted for other reasons.


       The first one can be quickly dismissed. In the habeas hearing, the district court
found that Friday's statements were voluntary—the same finding the district court had
made at trial after what Friday now argues was lackluster advocacy. But there wasn't
lackluster advocacy at the habeas hearing, and Friday doesn't argue on appeal that the
district court's voluntariness finding was in error. That precludes relief under Strickland
because even if the advocacy on this point was so lackluster before trial to have been
constitutionally deficient, there still would have been no prejudice to Friday: her
statement was voluntary and thus admissible, anyway. Friday tries to avoid this result by
arguing that "a vigorous but unsuccessful challenge" might have "prompt[ed] a beneficial
plea offer" or otherwise altered the case. But that's too speculative to support a claim of


                                              9
prejudice under Strickland. See United States v. Rendon-Martinez, 

497 Fed. Appx. 848

,
849 (10th Cir. 2012) (unpublished opinion); Koch v. State, No. 119,886, 

2019 WL
3367319

, at *3 (Kan. App. 2019), rev. denied 

312 Kan. 892

 (2020).


       The second point is at the heart of this appeal. Chahine said that he decided that he
could better present Friday's defense with her videotaped statements than without them.
An attorney's strategic decisions are essentially unchallengeable if the attorney made an
informed decision based on a thorough investigation of the facts and applicable law. The
decision must be reasonable, and it falls below minimum constitutional standards only if
no competent attorney would have adopted that strategy. Wilson v. State, 

51 Kan. App.
2d 1

, 14-15, 

340 P.3d 1213

 (2014).


       On this claim, the district court conducted an evidentiary hearing, so we must
accept its factual findings if they are supported by substantial evidence. But whether the
attorney's work met or fell below the Strickland requirements is a legal issue that we
review independently, with no required deference to the district court. Khalil-Alsalaami
v. State, 313 Kan. ___, Syl. ¶ 5, 

486 P.3d 1216

 (2021); Wilson, 51 Kan. App. 2d at 14.


       The district court accepted Chahine's testimony that he made a strategic choice to
use the videotaped interview, so we must do so too. We must determine whether that
choice was sufficiently reasonable that a competent attorney could have adopted it.


       Earlier in the opinion, we quoted the district court's rationale for concluding that
Chahine's strategic choice was a reasonable one. We agree with the essential points made
there. Even though Friday didn't testify, the jury heard directly from her. In a case in
which it was significant whether she had been indifferent to the value of Deshazer's life,
the jury heard her say that she gave him water and a blanket after the fight had ended and
that she had offered to call an ambulance. The jury heard a version of events in which her
conduct was less harmful to Deshazer than other evidence suggested, and conflict


                                             10
between the versions could have led to reasonable doubt of her guilt. Chahine used pieces
of Friday's statements to police and the other evidence presented at trial to present a
coherent defense.


       Even so, Friday argues that Chahine's strategy ignored "the negative impact of the
visual cues and unredacted material" in the videotape shown to the jury. She's right that
some portions of the interview that could (and likely should) have been edited out were
left in, and these portions included detectives making facial expressions indicating
disbelief of Friday or direct statements of disbelief. But the argument Friday made in her
habeas claim, now at issue in this appeal, is not that a few portions of the videotape that
should have been redacted weren't. Rather, Friday's argument is that Chahine should have
argued for the entire videotape to be excluded. We conclude that Chahine made a
reasonable strategic decision to allow that videotape to be played at trial so that the jury
could hear directly from his client.


       Had the issue been that a few additional edits should have been made in the
videotape played for the jury, that still would not have been a successful argument under
Strickland. Even if we assume that the defense attorney's failure to get those other edits
violated the Strickland performance standard, we still would not find Strickland
prejudice. That requires a reasonable probability that the trial's outcome would have been
different but for the attorney's substandard work. A reasonable probability in this context
is one sufficient to undermine confidence in the proceeding's outcome. Khalil-Alsalaami,
313 Kan. ___, Syl. ¶ 23. Friday has not made that showing here.


       Friday makes one more claim of error about the district court's ruling. At the very
end of the district court's written opinion, the court's conclusion that Strickland prejudice
is absent said: "This Court cannot say with any certainty that the outcome of the trial
would have been different if the jury had heard a more thoroughly redacted video
statement." Friday argues that the district court misstated the legal standard here. As


                                             11
we've already discussed, the court must find "a reasonable probability" that the result
would have been different, not "certainty."


       But the district court had cited the proper standard earlier in its written opinion. So
we think the later statement was just a shorthand way of saying that the court could not
say with any level of certainty (including the reasonable-probability standard it had cited
earlier in the opinion) that the outcome would have been different. Ultimately, it doesn't
matter, though, since we have to review the Strickland conclusions independently, and
we have found no prejudice on this point.


       In sum, Friday does not challenge on appeal whether her statements to police were
voluntary and admissible. Instead, her argument is that her attorney should have tried to
keep them out as a matter of trial strategy. But the attorney testified that he concluded
that her best defense was to have her videotaped statements played to the jury, and we
agree with the district court that this was a reasonable decision. The district court
dismissed Friday's habeas challenge, and we affirm the district court's judgment.




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