IN THE DISTRICT COURT OF GEARY COUNTY, KANSAS
VONDEL JOHNSON, )
Plaintiff, )
vs. )
) Case No. 08 CV 345 )
STATE OF KANSAS, )
Defendants. )
___________________________________ )
ORDER
This matter comes on for decision upon plaintiff’s motion pursuant to K.S.A. 60-1507. The court appointed counsel to represent him and held a full evidentiary hearing. For the reasons set forth herein, the motion is denied.
Johnson claims that he was denied the effective assistance of counsel in violation of his Sixth Amendment rights. This contention is almost entirely premised upon the failure of his court-appointed counsel to object to a jury instruction which was the subject of controversy both in the District Court and in the Court of Appeals. The Court of Appeals found that the instruction was proper and affirmed the verdict. It is clearly the duty of the District Judge to property instruct the jury. This is true whether counsel submits instructions or not. Prior counsel for the defendant had submitted his proposed instructions before trial. The problem occurred during trial when the testimony of the officer became an issue of whether the defendant committed a felony obstruction or a misdemeanor obstruction. The trial Judge, according to the appellate court, made the right call on the instruction. Thus, this issue has been fully litigated and decided adversely to the petitioner.
Johnson also contends that his appointed counsel took over the case just days before the jury trial as a result of illness of previously assigned counsel. While the court is troubled by that, never-the-less, the court must review the transcript and determine whether the defendant received a fair trial. Newly assigned court-appointed counsel had been in practice seven years and this was apparently her 6th or 7th jury trial. The record reflects that counsel conducted the defense in an acceptable manner. She challenged testimony of the states witnesses on cross-examination, interposed appropriate objections and presented arguments which demonstrated her knowledge of the law and facts in this case. An attorney with little or no prior experience certainly can render effective assistance." Cooks v. Ward, 165 F.3d 1283, 1293 n.5 (10th Cir. 1998); see also Fields v. Gibson, 277 F.3d 1203, 1215 n.7 (10th Cir. 2002)
The right to
counsel does not require that he
have counsel
who wins the case or conducts the perfect trial.
Counsel here did not conduct the
defense in an incompetent, inadequate or ineffective manner. Tapia
v. Rodriguez, 446 F.2d 410 (10th Cir. 1971);
Brady v. United States, 433 F.2d 924 (10th Cir. 1970).
Plaintiff contends that his attorney was ineffective in not objecting to certain rebuttal testimony from the arresting officer concerning the reason for the arrest. This court finds that the rebuttal was proper and that the testimony would have been admitted whether objected to or not. This court finds nothing in that contention that constitutes ineffective assistance of counsel.
Johnson lastly contends that trial counsel failed to file a motion to arrest judgment. He alleges that the finding of guilt was made on a crime which was different from that charged. He is simply wrong. The crime for which he was convicted was contained in the information as Count II. Counsel for defendant did request a new trial which was denied. His rights were fully protected.
It is therefore by the Court ordered that the Plaintiff’s motion for relief pursuant to K.S.A. 60-1507 be and hereby denied.
_________________________
STEVEN HORNBAKER
District Judge