State v. Waterman

63 Kan.App.2d 799

540 P.3d 378

STATE of Kansas, Appellee,

v.Brian Michael WATERMAN, Appellant.

No. 124,725

Court of Appeals of Kansas.

Oral Argument Held September 19, 2023.

Opinion Filed November 22, 2023.

Ethan Zipf-Sigler, of Zipf-Sigler Law Office, LLC, of Shawnee, for appellant, and Brian Michael Waterman, appellant pro se.

Natalie Chalmers, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.

Before Coble, P.J., Malone and Warner, JJ.

Malone, J.:

A jury convicted Brian Michael Waterman of attempted first-degree murder, aggravated kidnapping, and aggravated burglary after he stormed into the home of Bob Hopkins and repeatedly stabbed him. Waterman and his appointed appellate attorney have both filed briefs, alleging many errors at trial and during his sentencing. They challenge his convictions and the sentence he received, arguing:

(1) the State presented insufficient evidence to support his aggravated kidnapping conviction;

(2) the district court erred by excluding witnesses he intended to call in his defense;

(3) the district court violated his right to confrontation by permitting the State to use the preliminary hearing testimony of his victim, who died before the trial;

(4) the district court erred by refusing to give an instruction on criminal restraint as a lesser included offense of aggravated kidnapping; (5) the district court erred in denying his motion to dismiss based on the State's access to confidential attorney-client communications;

(6) the district court abused its discretion in denying his motion to appoint substitute counsel;

(7) cumulative error deprived him of his right to a fair trial;

(8) he received an illegal sentence because the district court miscalculated his criminal history score;

(9) the district court abused its discretion by failing to ask about potential biases held by jurors;

(10) his right to due process was violated because the State introduced perjured testimony; and

(11) the district court erred by denying his posttrial motion for mistrial alleging ineffective assistance of counsel.

We have reviewed the record on appeal consisting of 40 volumes and over 2,700 pages of documents, transcripts, and exhibits. The parties agree that Waterman received an illegal sentence due to the improper use of an uncounseled misdemeanor in calculating his criminal history score. As for the claims affecting Waterman's convictions, we find only one reversible error: Waterman was denied the appointment of conflict-free counsel to argue his motion for new trial alleging ineffective assistance of counsel. As a result, we remand the case for the district court to appoint new counsel to represent Waterman on the posttrial motion and for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

A near fatal stabbing

In the early evening hours of May 8, 2016, Bob was at home, sitting in his recliner and enjoying a drink, when a man appeared at his door. Bob's door was always open, weather permitting, and he asked the man, "[C]an I help you?" The man, whom Bob did not know but recognized as a relative of one of his neighbors, responded, "I'm here to kill you." The intruder would later be identified as Waterman. Bob told Waterman to leave, but he did not; instead, Waterman stepped in the room, locked the door behind him, and stabbed Bob in the chest, sides, and back with a pocketknife. After stabbing Bob 17 times, Waterman began pouring bleach over his head and spraying him with bug spray.

Not long after the attack began, Bob's son, Dwayne Hopkins, came home and went to check on his father. He was surprised to find that the door to Bob's place was not only closed but locked. He called out to his father, who responded in a weak and tired voice, "[J]ust a moment." Once the door opened, Dwayne walked in the one-room residence and saw Bob propped up in his bed. The door then shut behind him and he turned around to see Waterman. Dwayne asked him, "[W]hat are you doing?" and Waterman replied, "I'm here to watch him bleed out." Confused, Dwayne turned back to look at his father and noticed that Bob was covered in blood. He then realized that Waterman, whose hand was in his pocket, was probably holding a weapon. Dwayne knew he needed to escape and call an ambulance as quickly as possible, so he fled past Waterman and was able to tell his neighbor to call an ambulance. By the time he looked back, he saw Waterman leaving his father's residence, heading toward the train tracks.

Several paramedics and police officers soon arrived on the scene. They immediately noted the strong smell of bleach and the blood splattered all over Bob's room. Despite his injuries, Bob remained awake and coherent. He told the officers that he did not know the name of the man who had stabbed him but knew what he looked like. When the officers asked about the man's motive, Bob told them the attacker had accused him of "messing around with his daughter." Dwayne also provided a description of Waterman—he noted that he thought his name was either Brian or Ryan and that he was related to a woman named Judy Bossolono. Bossolono would later confirm Waterman's identity, telling police that Waterman had told her that he would attack Bob and that he was likely going to flee to Oklahoma.

Once the paramedics got Bob bandaged, they took him to the hospital where the trauma surgeon treated his wounds, several of which were potentially fatal, including two punctures of his heart and one to his lung. At some point while Bob was in the emergency room, he suffered a cardiopulmonary arrest and lost all vital signs. Luckily, the doctors stabilized him, and Bob survived the ordeal.

After Waterman fled Bob's home, he managed to get a ride from a nearby stranger who drove him to the house of a friend. But upon finding out that Waterman may have been involved in the attack on Bob, the friend kicked Waterman out and alerted police. At that point, Waterman fled to Oklahoma, where he was soon apprehended by local law enforcement and returned to Kansas.

Pretrial proceedings in district court

The State initially charged Waterman with one count of attempted first-degree murder, one count of aggravated kidnapping, one count of aggravated battery, and one count of aggravated burglary. At the preliminary hearing, held on February 24, 2017, the State called both Bob and Dwayne to testify. Waterman's counsel cross-examined both men, but the district court restricted questioning about whether Bob was suffering from dementia. That said, Waterman's counsel still elicited testimony that Bob was having trouble remembering things following the attack and did not recall the details of the night. After hearing the evidence, the district court bound Waterman over for trial.

Over the following years, Waterman proceeded to have conflicts with each of the many attorneys appointed to represent him and repeatedly requested continuances of his trial date. Waterman's first appointed attorney, Candace Brewster Gayoso, withdrew before the preliminary hearing. Steven Stockard represented Waterman at his preliminary hearing and also filed a notice of defense of lack of mental state on Waterman's behalf. Stockard then withdrew in February 2018, after requesting two continuances of the trial. Robert Myers was appointed after Stockard withdrew; he requested another continuance of the trial and withdrew a month after he was appointed. The court then appointed Forrest Lowry to represent Waterman, but Waterman promptly requested his removal, and the court appointed Sara Beezley. When Beezley began her representation, she realized that Lowry had turned Waterman's casefile into the State upon his withdrawal, and she was informed that the county attorney intended "to go through the box." Beezley promptly moved to dismiss on Waterman's behalf, alleging confidential attorney-client communications and trial strategy related materials were contained within his file. After the file was returned, Waterman would claim that certain materials were missing.

At the hearing on the motion to dismiss, Waterman expressed concerns that he was being deprived of a fair trial because the State had examined confidential communications that he had with his attorneys about his intended defense. He also broadly alleged that the State and his prior attorneys were all conspiring against him. The State countered that it had not reviewed any confidential materials and merely went through the box to ensure that Beezley received the entire discovery in the case. A legal assistant from the county attorney's office testified that she initially thought Waterman's casefile was just discovery materials, but soon noticed that it also contained attorney-client communications. She asserted that she placed all such communications facedown and did not review them, nor did anyone else in the county attorney's office.

After hearing the evidence, the district court denied Waterman's motion to dismiss, explaining that while the State could have handled the matter more carefully, there was no evidence that it had actually reviewed Waterman's confidential communications or that he would suffer any prejudice from the State's actions. Waterman also moved to disqualify the lead prosecutor on the same grounds, which the district court denied. Once the motions were denied, Beezley withdrew as Waterman's counsel. The district court then appointed Frederick Smith to represent Waterman, but he withdrew after representing Waterman at one hearing. The district court then appointed James Campbell, who would be the final attorney assigned to Waterman's case.

A few months into Campbell's representation, Waterman asserted his desire to proceed pro se, but he soon changed his mind while trying to argue several motions at a pretrial hearing. The district court then reinstated Campbell. But as Campbell resumed his representation, Waterman began to accuse him of providing ineffective assistance of counsel and working on...