State v. Turner

542 P.3d 304

STATE of Kansas, Appellee,

v.Cardell TURNER, Appellant.

No. 123,097

Supreme Court of Kansas.

Oral Argument Held September 14, 2023.

Opinion Filed February 2, 2024.

Syllabus by the Court

1. Disagreements about trial strategy do not show a complete breakdown in communication between a defendant and counsel.

2. If a defendant’s dissatisfaction emanates from a complaint that cannot be remedied or resolved by the appointment of new counsel—such that replacement counsel would encounter the same conflict or dilemma—the defendant has not shown the requisite justifiable dissatisfaction for substitute appointed counsel.

3. When determining whether counsel’s failure to advocate for an instruction supporting the defendant’s only line of defense was prejudicial, a jury verdict that clearly reveals the jury would have rejected that defense and strong evidence cutting directly against that defense can inform the analysis.

4. Disagreement with a judge’s rulings cannot serve as the basis for a judge’s recusal under K.S.A. 20-311d(d).

Review of the judgment of the Court of Appeals in an unpublished opinion filed October 28, 2022. Appeal from Sedgwick District Court; Bruce C. Brown, judge.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant, and Cardell Turner, appellant pro se, was on the supplemental brief.

Matt J. Maloney, assistant distinct attorney, argued the cause, and Mare Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Rosen, J.:

On August 14, 2018, Alberto Alfaro and Enrique Umana Somoza were outside a home in Wichita trying to jump start Alfaro’s truck. Cardell Turner pulled up beside them in his car, pointed a gun in the direction of Somoza and Alfaro, and pulled the trigger. The gun did not fire. Turner drove away, and no one was harmed. The State charged Turner with two counts of attempted first-degree murder and one count of conspiracy to commit murder in relation to this incident.

Prior to trial, Turner moved for new appointed counsel, alleging dissatisfaction with his counsel and a complete breakdown in communication. After two hearings, the district court denied the motion, reasoning that much of Turner’s dissatisfaction came from Turner’s unreasonable expectations and misunderstanding of the law. The case proceeded.

Turner testified in his own defense at trial. He told the jury he worked for a drug cartel in California and had been in Wichita to collect money from Alfaro and a man who worked locally for the cartel named Rogelio Velasquez. Turner collected the money from Velasquez upon his arrival in early August and then set his sights on Alfaro. Turner and Alfaro met in Topeka, but Alfaro did not have the money, so the two planned to meet again in a few days. Alfaro did not show up at the next scheduled meeting, so Velasquez told Turner where he might be able to find Alfaro. Velasquez also gave Turner a gun.

On August 14, Turner located Alfaro and Somozo trying to jump start a truck. Turner was on the phone with Velasquez at this time and reported the scene. Velasquez told Turner "when their heads are under [the hood], go do what you’re going to do." Turner testified his plan was to "catch [Alfaro] in the low compromised … so [he could] approach him like, hey, what’s up, man, like you got the money, you ready." Turner brought the loaded gun from Velasquez "in case something [went] down" but kept it in his lap.

Turner approached the two men in his car with his window rolled down and said, " 'what’s up." Turner testified Alfaro looked over his shoulder at Turner, turned away, and then spun around holding a gun. Turner then picked up his own gun and pointed it in the direction of Alfaro but "[could not] say it was pointed directly at him." Turner thought Alfaro was going to shoot, so he pulled the trigger on his weapon. Turner’s gun malfunctioned and did not fire. Turner testified that the men began laughing at him and he drove away.

As he drove, Turner called Velasquez and told him the gun had malfunctioned. He also told Velasquez that Somoza had seen him and "might have to go too." Turner explained this was his way of letting Velasquez know the men had seen him and that whatever happened to the men afterwards was "over [his] pay rate." Turner maintained throughout his testimony that he planned on getting the money from Alfaro and leaving, that he never intended to shoot or kill Alfaro, and that he only pulled his gun out of his lap and tried to fire because he thought Alfaro was going to shoot him.

Alfaro testified to a different version of events. He told the jury he never met with Turner and had not seen or heard of him prior to the day he pulled up outside of his house. Alfaro testified he had been trying to jump start his truck with a neighbor, Somoza, when Turner pulled up with his window rolled down. Turner asked, "what’s up," Alfaro answered, then Turner asked, "what’s right," pulled a gun up, and pointed it at Alfaro. Alfaro testified "what’s right" means "bullets are about to start flying." Turner pulled the trigger three or four times, but it did not fire. Alfaro testified he told Turner to "get off" and Turner started screaming that he was going to kill Alfaro. Turner fiddled with the gun in an apparent attempt to get it working. Alfaro testified that, at this point, he thought it was a joke or a misunderstanding, so he started laughing. Turner drove off. Alfaro jump started his truck and tried to follow Turner to "see what’s up," but did not catch up with him. Alfaro testified that neither he nor Somoza pointed a gun at Turner during the encounter. Somoza testified to a corroborating version of events.

An FBI agent testified at trial. He revealed that Velasquez had been the subject of a wiretap in August 2018 because he was suspected of engaging in drug distribution and money laundering. On August 12 or 13, the FBI began intercepting calls between Velasquez and Turner and learned that Turner was in Wichita looking for someone. Through testimony from the agent and playback of the recorded calls, the jury learned more about what was said on these calls. During the call that took place when Turner located Alfaro jump starting the truck, Turner told Velasquez he could "do nothing" because he was driving and there were too many people around. Turner said if he "had somebody who was driving then [he] could hit it … or [he] could follow him." The recording confirmed that Velasquez told Turner, when Alfaro’s head is under the hood, "do your thing" and then "jump on the motherfuckin’ freeway." Turner again said there were too many people out there. The men speculated that once the subject got his truck started, he might go home. Velasquez told Turner that area was "kinda hot" and "too open." Agents interpreted this call to indicate an act of violence was going to occur.

Two minutes later, the FBI intercepted the call between Turner and Velasquez during which Turner said the gun had not worked and that he had been laughed at. About a half hour later, the FBI intercepted another call between the two men. Turner told Velasquez "that fat boy … might have to go too … cause he seen my face." Velasquez responded "yeah, both of y’all, fuck it."

The jury convicted Turner of one count of attempted first-degree murder for attempting to shoot Alfaro, one count of attempted second-degree murder for attempting to shoot Somoza, and one count of conspiracy to commit murder for conspiring to kill Alfaro. Following trial, Turner’s counsel moved to withdraw because Turner claimed he had been ineffective, which led to a conflict of interest. Turner filed pro se a "motion to terminate ineffective counsel with request for new trial." The court granted the motion to withdraw and appointed Turner new counsel. After a hearing, the district court found trial counsel had not been ineffective and denied Turner’s motion for new trial. Turner also filed many motions requesting the trial judge recuse himself, two pro se and one through counsel, and an affidavit in support. The court denied the motion submitted through counsel and the supporting affidavit. It sentenced Turner to 653 months’ imprisonment for the attempted first-degree murder, 123 months’ imprisonment for conspiracy to commit first-degree murder, and 61 months’ imprisonment for the attempted second-degree murder, with the sentences to run consecutively.

Turner appealed his convictions and sentence. The Court of Appeals affirmed his convictions but vacated his sentence and remanded for resentencing because the district court miscalculated his criminal history score. State v. Turner, No. 123,097, 2022 WL 15527878, at *19 (Kan. App. 2022) (unpublished opinion). We granted Turner’s petition for review of the portion of the panel’s opinion affirming his convictions and the State’s conditional cross-petition for review of the panel’s holdings that a self-defense instruction was factually warranted and that defense counsel rendered deficient performance.

Self-defense Instruction

Turner argued in the Court of Appeals the district court clearly erred when it did not instruct the jury on the affirmative defense of self-defense. He claimed his testimony that he pointed a gun at Alfaro only after Alfaro first pointed one at him from close range permitted a rational fact-finder to find he had a subjective and objective fear for his life. The State argued self-defense was unavailable to Turner under the initial aggressor exception to self-defense in K.S.A. 2022 Supp. 21-5226(c) because even according to Turner’s version of events, Turner initially provoked Alfaro by driving up to him with a gun in his lap and then did not exhaust every means of escape before turning to deadly force.

The Court of Appeals held the instruction would have been legally and factually appropriate, but the failure to offer it had not been clear...