Petition for Writ of Certiorari — Drach v. Bruce, 127 S. Ct. 1829 (2007) (No. 06-789)
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Supreme Court, U.S
PILE
No —— 6-7 89 DEC 5 - 2006
OFFICE OF THE CLERK
In The
Supreme Court of the Anited States
¢
ROGER DRACH.
Petitioner.
LOUIS BRUCE and THE STATE OF KANSAS,
Respondents.
On Petition For Writ Of Certiorari
To The Supreme Court Of Kansas
*
PETITION FOR WRIT OF CERTIORARI
4
JEREMIAH KIDWELL, Attorney DENNIS OWENS, Attorney
7th Floor, Harzfeld’s Building Counsel of Record
1111 Main Street 7th Floor, Harzfeld’s Building
Kansas City, Missour 64105 1111 Main Street
Telephone: (816) 474-3000 Kansas City. Missouri 64105
Facsimile: (816) 474-5533. — Telephone: (816) 474-3000
Facsimile: (816) 474-5555
Counsel for the Petitioner
December, 2006
QUESTIONS PRESENTED
I
Whether, in direct conflict with the published opinions
of this Court in Ohio v. Roberts, 448 U.S. 56 (1980), Idaho
v. Wright, 497 U.S. 805 (1990), White v. Illinois, 502 U.S.
346 (1991), and Lilly v. Virginia, 527 U.S. 116 (1999), the
Supreme Court of Kansas erred in holding that the admis-
sion of hearsay testimony under Kansas’s unique, judi-
cially-created “marital discord” hearsay exception does not
violate the Sixth Amendment to the Constitution of the
United States.
Il
Whether, in direct conflict with the holding of the
United States Court of Appeals for the Ninth Circuit in
Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), the
Supreme Court of Kansas erred in holding that the deci-
sion of this Court in Crawford v. Washington, 541 U.S. 36
(2004), regarding the admissibility of testimonial hearsay
evidence under the Sixth Amendment, does not apply
retroactively to cases on collateral review.
{il ss
Whether the Supreme Court of Kansas’s holding that
Crawford does not apply retroactively to cases on collat-
eral review violates the holdings of this Court in Teague v.
Lane, 489 U.S. 288 (1989), and Schriro v. Summerlin, 542
U.S. 348 (2004).
li
LIST OF PARTIES
The parties to the proceedings below were Mr. Drach,’
the petitioner, and Louis Bruce, Warden of Hutchinson
Correctional Facility, the prison where Mr. Drach cur-
rently is incarcerated, and the State of Kansas, respon-
dents.
ill
TABLE OF CONTENTS
Page
SEI FI oes vikessnssnéuisicntecasouaueamenbbunimmebannanes i
ERE GE Fe ia iciiccsnsiccsnsneinnicisiatinscabdiacaanmmamaiicas il
I EI ices ssirniinnectsenisesentviciiteisiaicistiiatciasiieimaitaaiiaiaien ill
I CE RG sisineisscisevinicwiuitiantaitiioaminssisiiilasnictiienimians iv
CIE TIAN evi isicicssetersninttiaesiacnnenisaniiiniieiiaiaaain 1
NII sic evesiescissitttnitaetaduaricncaiicanaaantietibiasuidialamniabil 1
Constitutional Provisions Involved ..................000eeeeeeeees 2
CREE INOUE, siicisictsniocunciccctasienvunernnaniaiapatlacisiaaianals 2
taba OF TO Ci is cescssniscrsiccteresneemtnndmntianen 2
Reasons for Granting the Writ ................cc.ccecceeeeeeeeeeeee 6
CI iniscisincniveniscseresiennmeematninnann maaan 27
Appendix
Opinion of the Supreme Court of Kansas, 136
P.3d 390 (June 9, 2006).....cccccecceccsssssessessesseseeseceee App. 1
Judgment of the District Court of Finney County,
Kansas (November 15, 2004) ..............cesesceeeeeeeeeees App. 36
Opinion of the Supreme Court of Kansas in State
v. Drach, 268 Kan. 636, 1 P.3d 864 (March 10,
TABLE OF AUTHORITIES
Page
CASES CITED:
Arsenault v. Massachusetts, 393 U.S. 5 (1968)................. 10
Barber v. Page, 390 U.S. 719 (1968) ..........cccccccccessereees 11, 33
Berger v. California, 393 U.S. 314 (1969) (per
UT sccibceitintcaduiiasiipieniesieidcehibllbcebttinitarakbitaledseabaiewniiiasdninobaiid a8, 32
Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005),
opinion amended, 408 F.3d 1127 (9th Cir. 2005),
reh’g en banc denied, 418 F.3d 1055 (9th Cir.
2005), cert. granted sub nom., Wharton v. Bock-
ting, 126 S. Ct. 2017 (2006)......ccccocosorsevereseers 6, 7, 8, 12, 13
Brecht v. Abrahamson, 507 U.S. 619 (1993)........... ee eeeeeeeees 9
Brown v. Louisiana, 447 U.S. 323 (1980)........ eee 9,10
Brown v. Uphoff, 381 F.3d 1219 (10th Cir. 2004),
cert. denied sub nom., Brown v. Lampert, 5438
ie IE ITNT s ccsdincsih diuieesedaenieainctetadenuipbbaainiaonteneneenits 8
Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005).............06+. 8
Commonwealth v. Brooks, 875 A.2d 1141 (Pa.
Ns SONI ds Guricenasiodcipacusancddedsscbanccemmanmvagedetomuegemeiaes 8
Commonwealth v. Kartell, 20 Mass. L. Rep. 134
SI: I AR IID isiccosiesiscnincdichinnidsberasealea Valinndacnteedgacuieancias 8
Crawford v. Washington, 541 U.S. 36 (2004)............. passim
Danforth v. State, 700 N.W.2d 530 (Minn. App.
2005), review granted in part and pending (Minn.
Sy ly MTD sicevisiedcecsnashinedienastayndcaneaesiMeenensanidedh: -- xwelnanania 8
Dorchy v. Jones, 398 F.3d 783 (6th Cir. 2005)... 8
Douglas v. California, 372 U.S. 353 (1963) ........eeeeeceeeee 10
Duriey v. Mayo, 351 US, 277 (IDGG) ...-ccsieccccecercooresecsessees 23
TABLE OF AUTHORITIES — Continued
Page
Edwards v. People, 129 P.3d 977 (Colo. 2006), reh’g
denied, 2006 Colo. LEXIS 214 (2006) ...........c..ceeeeseeseeees 8
Ennis v. State, 122 Nev. Adv. Rep. 60 (Nev. 2006).............. 8
Espy v. Massac, 443 F.3d 1362 (11th Cir. 2006) .............005 8
Evans v. Luebbers, 371 F.3d 438 (8th Cir. 2004),
cert. denied sub nom., Evans v. Roper, 543 U.S.
ET RE ein litnsicicdciidinaininsipeligdotaesentdaaadidaee 8
Fay v. Noia, 372 U.S. 391 (1968) ......+..-+. ake eee 23
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)............ 4
Gideon v. Wainwright, 372 U.S. 355 (1963)............ccccceeee 10
Graham v. Collins, 506 U.S. 461 (1998) oo... ee ccceseseeceees 9
Griffin v. Hinois, 351 U.S. 12 (1956) ......c0-cecccscsccssesereese 10
Hamilton v. Alabama, 368 U.S. 52 (1961)....... cece wees 10
Idaho v. Wright, 497 U.S. 805 (1990)...........ccceeeeeereeee passim
In re Markel, 154 Wash.2d 262, 111 P.3d 249 (2005).......... 8
In re Moore, 133 Cal. App. 4th 68 (2005)...............:seeceeeeeees 8
Jackson v. Denno, 378 U.S. 368 (19G64).............cecceeseescevees 10
Kansas v. Marsh, 126 S. Ct. 2516 (2006).............c cee eeee ones 24
Lave v. Dretke, 444 F.3d 333 (5th Cir. 2006), cert.
filed sub nom., Lave v. Quarterman, Case No. 05-
Se CE Fi, SD titi iertttein cicero 8
Lilly v. Virginia, 527 U.S. 116 (1999) oe eeneeeeee passim
McConnell v. Rhay, 393 U.S. 2 (1968) secssccccssssecsssssseecsseees 10’
McGonagle v. United States, 137 Fed. Appx. 373
(1st Cir. 2005), cert. denied, 126 S. Ct. 506 (2005) ......... 8
TABLE OF AUTHORITIES ~ Continued
Page
Mungo v. Duncan, 393 F.3d 327 (2d Cir. 2004), cert.
denied sub nom., Mungo v. Greene, 544 U.S. 1002
STC dceh cecal chcciieeebidbuslhsncieiedaiditesia deiiciaadaniidasiaciaandaibnaraaiaces 8
Murillo v. Frank, 402 F.3d 786 (7th Cir. 2005).............00008 8
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449
-___ SRFESEREA RSET ore EU ns PDA SON ee MAC RAINES TPT RIOD 24
New Mexico v. Forbes, Case No. 05-644 (U.S. filed
III <citadi sats tiensaice ouivectonsnuseadob sib edaniedsiaeseansicidbsesaanaieicnaannenaeeatiasiis 7
Ohio v. Roberts, 448 U.S. 56 (1980)... eeeeeeeeeeeeee passim
Postal Tel. Cable Co. v. Newport, 247 U.S. 464
IRE Rites aoe a oe ae ae SET Te ne ae eR RD 25
Price v. Georgia, 398 U.S. 323 (1970) ...............essscscsseeseees 11
Redwine v. State, 280 Ga. 58, 623 S.E.2d 485 (20085)......... 8
Roberts v. Russell, 392 U.S. 293 (1968) ............cceceeeeceeeeeee 10
Sawyer v. Smith, 497 U.S. 227 (1990) ...........cecsssseceeceeeeees 13
Schriro v. Summerlin, 542 U.S. 348 (2004)................. 7, 8,9
State v. Drach, 268 Kan. 636, 1 P.3d 864 (Kan.
TTD scicssisuatessaticels essen eanieteed sneebisbeatlieaaideiadaiaabiaaieepainianhiniaiae 1, 4,19
State v. Forbes, 119 P.3d 144 (N.M. 2005), cert. filed,
Case No. 05-644 (U.S. filed Nov. 17, 2005) ........:..cseeseee 8
State v. Neer, 247 Kan. 137, 795 P.2d 362 (1990)........ 23, 24
State v. Patterson, 200 Kan. 176, 434 P.2d 808
ORO RAE ORERERER eee ee cha a OR St tales NS 15,17
State v. Potts, 2006 Ohio 2100 (Ohio App. 2006)................ 8
State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997).............. 15
State v. Williams, 695 N.W.2d 23 (Iowa 2005)................242. 8
vii
TABLE OF AUTHORITIES - Continued
Page
Teague v. Lane, 489 U.S. 288 (1989)... cceeeeeees passim
V. &. New YorR, 40F U.S. BOS (1GT2) sccccrcececsercevscesceresesesesene 11
Ward uv. Bd. of County Comm’rs, 253 U.S. 17 (1920)........ 25
White v. Illinois, 502 U.S. 346 (1991) .......... ee eecceeeees passim
Witherspoon uv. Illinois, 391 U.S. 510 (1968)...............0eeeeee 11
STATUTES AND RULES CITED:
Federal Rules of Evidence 803-807 .............cccececcceeeeeeeeeees 18
DRE: Ur eae ctnckcbiusiciseuniesuamcadedbdnaadiaiatednelenaeamtaas 15
a Se NT phithisdsiicedecuibiinsidsiginaiadacntaenadaiabgeeusedaddimanabentins 1, 5, 6
CONSTITUTION CITED:
IE FI sacsentociictavtvntnineissiassicnmstsicebeniaibecniinas passim
TREATISES CITED:
Christine Arguello, The Marital Discord Exemption
to Hearsay: Fact or Judicially-Legislated Fic-
tion?, 46 KAN. L. REV. 63 (1997).......ccccccssserccesesereees 15, 18
PETITION FOR WRIT OF CERTIORARI
Petitioner Roger Drach respectfully prays that this
Court issue a Writ of Certiorari to the Supreme Court of
Kansas to review its judgment entered on June 9, 2006,
and its subsequent denial of his Motion for Rehearing or
Modification on September 19, 2006.
¢
OPINIONS BELOW
This is a post-conviction remedy case. It was heard
under Kansas Statutes Annotated (K.S.A.) Section 60-
1507, in the District Court of Finney County, Kansas (Case
Number 04-CV-152), and the Supreme Court of Kansas
(Case Number 93,654). The opinion of the Supreme Court
of Kansas is reported at 136 P.3d 390 (Appendix 1). The
order denying the Petitioner’s Motion for Rehearing or
Modification is unreported (App. 65). The judgment of the
District Court of Finney County, Kansas, is unreported
(App. 36).
The underlying criminal prosecution was pursued in
the District Court of Finney County, Kansas (Case Num-
ber 96-CR-421), and the judgment of conviction was
affirmed upon direct appeal by the Supreme Court of
Kansas, State v. Drach, 268 Kan. 636, 1 P.3d 864 (2000)
(Drach I) (App. 42).
JURISDICTION
Judgment of the Supreme Court of Kansas was entered
on June 9, 2006, and rehearing or modification was denied
on September 19, 2006. This Court’s jurisdiction to consider
this petition from the final judgment or decree by the
highest court of the state in which the decision could be
had is invoked pursuant to 28 U.S.C. § 1257(a).
¢
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment to the Constitution of the
United States provides, in pertinent part: “In all criminal
prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him.”
+
STATEMENT OF THE CASE
On October 31, 1997, Petitioner Roger Drach was
convicted of the crimes of murder in the first degree in
violation of K.S.A. § 21-3401, aggravated battery in viola-
tion of K.S.A. § 21-3414(a)(1)(a), and criminal use of
weapons in violation of K.S.A. § 21-4201(a)(1). He was
sentenced to a term of imprisonment of twenty-five years
to life. He is 70 years old. Mr. Drach had been found guilty
by a jury after his entry of a plea of not guilty.
The charges stemmed from the death of Mr. Drach’s
wife, Deanne Drach, on August 19, 1994, in the couple’s
home in Garden City, Kansas. Mrs. Drach died from a
gunshot wound to her chest at contact range or near-
contact range. At that time, authorities considered her
death to be a suicide and continued to do so for two years.
Mr. Drach’s administration of his late wife’s estate was
disputed by his brother-in-law. Some of her relatives
pursued litigation against Mr. Drach. Exactly two years
after her death, the prosecutor filed the criminal charges
against Mr. Drach. |
The prosecution’s theory at trial was that Mr. Drach
had murdered his wife. The defense was that Mrs. Drach
had committed suicide. As there were no witnesses to Mrs.
Drach’s death and Mr. Drach was not allowed by his
lawyers to testify on his own behalf, all of the evidence
against Mr. Drach was circumstantial. The prosecution
presented expert forensic witnesses who testified that
Mrs. Drach’s gunshot wound was inflicted by someone
else. To show motive and intent, the prosecution presented
expert witnesses who testified to the forensic and medical
likelihood that Mrs. Drach earlier had been abused. The
prosecution also presented witnesses who testified that
they did not believe that Mrs. Drach had the propensity to
commit suicide. On rebuttal, the prosecution produced a
surprise witness, Mrs. Karen Althaus, who said that 25
years earlier Mr. Drach had threatened his wife’s life after
he discovered Mrs. Drach’s extramarital affair with Mrs.
Althaus’s husband. Mr. Drach wanted to testify to rebut
this, but his trial lawyers would not allow him to do so.
The defense rebutted the prosecution’s forensic evi-
dence with its own experts who demonstrated both that
Mrs. Drach’s wound was self-inflicted and that there was
no forensic or medical probability of abuse. The defense
produced witnesses who testified to the Drachs’ good
relationship and to Mr. Drach’s good character. Witnesses
testified that Mrs. Drach had attempted suicide in the
past due to her severe alcoholism and depression following
the deaths of her mother and her son less than a year
before her own death. As well, the defense presented a
note that Mrs. Drach had written and given to her hus-
band immediately before her death. The note was-réad
4
into evidence by a detective on cross-examination. Its text
is included in the opinion of the Supreme Court of the
State of Kansas on direct appeal. State v. Drach, 268 Kan.
636, 641-642, 1 P.3d 864 (Kan. 2000). The defense sought
to place on the stand Dr. Tim McBath, a board-certified
psychiatrist, to give his opinion that the writing was a
suicide note. The trial court, however, held that Dr.
McBath was not qualified as an expert under Frye uv.
United States, 293 F. 1013 (D.C. Cir. 1923).
Crucial to the prosecution’s case (and the focus of this
petition) was the hearsay testimony of Lana Christensen,
Carol Taylor, Janet Myers, Marvelle Darrough, Marvelle
Sosa, and Dora Hermocillo, all of whom were volunteers or
workers who had encountered Mrs. Drach when she
sought treatment for her severe alcoholism, first at vari-
ous women’s crisis centers and then at a substance abuse
recovery center in Wichita. They alleged that Mrs. Drach
had told them her husband had abused her physically.
They even alleged that Mrs. Drach had told them her
husband had shot her in her shoulder at sorne time prior
to 1994. Their conversations with Mrs. Drach occurred
while they were attempting to convince her to divorce her
husband and pursue legal action against him for the
alleged abuse. Since Mrs. Drach was deceased, Mr. Drach
was not able directly to rebut these hearsay assertions.
This was the only evidence that tipped the scales in favor
of the prosecution.
The defense objected to this testimony as being
inadmissible hearsay in violation of Kansas law and the
Sixth Amendment’s Confrontation Clause. The trial court,
however, overruled the defense’s objection and held that
the testimony was admissible as part of the res gestae. The
defense continued its objection to the hearsay throughout
the two-week trial. The defense did, however, present
evidence from Mrs. Drach’s brother-in-law that contra-
dicted the hearsay: he testified that Mrs. Drach told him
she had lied to the aid workers in order to placate them.
The Supreme Court of Kansas reviewed Mr. Drach’s
conviction on direct appeal. Mr. Drach argued that the
admission of the hearsay as part of a res gestae exception
violated the Confrontation Clause under holdings of this
Court. The Kansas court, however, affirmed Mr. Drach’s
conviction and sentence. It concluded that even if a sweep-
ing res gestae hearsay exception violated the Confrontation
Clause, the evidence nonetheless was admissible against
Mr. Drach under Kansas’s judicially-created “marital
discord hearsay exception” (App. 63).
Upon exhaustion of his direct appeal, Mr. Drach filed
a Motion Attacking Sentence pursuant to K.S.A. § 60-
1507, Kansas’s procedural vehicle for post-conviction state
habeas corpus relief. Mr. Drach argued that the issuance
of a writ of habeas corpus was necessary because his
conviction was based largely on testimonial hearsay in
violation of the Confrontation Clause, in that (1) the
decision of this Court in Crawford v. Washington, 541 U.S.
36 (2004), was retroactive to his case on collateral appeal,
requiring a retrial due to the improper admission of
testimonial hearsay evidence, and (2) admission of the
hearsay under the marital discord exception violated this
Court’s previous holding in Ohio v. Roberts, 448 U.S. 56
(1980), and this Court’s subsequent interpretations of the
Roberts doctrine in Idaho v. Wright, 497 U.S. 805 (1990), —
White v. Illinois, 502 U.S. 346 (1991), and Lilly v. Virginia,
527 U.S. 116 (1999). (He also raised other claims not
germane here.)
6
On October 22, 2004, the District Court of Finney
County, Kansas, denied Mr. Drach’s motion (App. 41). The
basis of the district court’s decision was that Crawford is
not retroactive in cases on collateral appeal and any
discussion under Roberts was res judicata. The Supreme
Court of Kansas reviewed the denial of Mr. Drach’s § 60-
1507 motion on appeal. ‘+ affirmed the district court,
holding that (1) Crawford was not retroactive to cases on
collateral appeal — an issue of first impression in Kansas
(App. 30-31), and (2) res judicata barred Mr. Drach from
challenging the admission of the hearsay testimony
against him under Kansas’s “marital discord” hearsay
exception (App. 34-35).
REASONS FOR GRANTING THE WRIT
Mr. Drach’s petition for certiorari should be granted
for two reasons. First, it presents the important federal.
question of whether the decision of this Court in Crawford
v. Washington should be applied retroactively to cases on
collateral review, an issue for which this Court recently
has granted certiorari. Wharton v. Bockting, 126 S. Ct.
2017 (2006). Second, the decision of the Supreme Court of
Kansas upholding the admission of hearsay under Kan-
sas’s unique extra-statutory “marital discord” exception to
the hearsay rule clearly conflicts with this Court’s hold-
ings in Ohio v. Roberts, 448 U.S. 56 (1980), Idaho v.
Wright, 497 U.S. 805 (1990), White v. Illinois, 502 U.S. 346
(1991), and Lilly v. Virginia, 527 U.S. 116 (1999). Res
judicata does not preclude this Court from exercising its
certiorari jurisdiction over this claim.
I. The decision of this Court in Crawford v. Wash-
ington created a watershed rule of criminal
procedure requiring observance of procedures
that are implicit in the concept of ordered lib-
erty and without which the likelihood of an ac-
curate conviction is seriously diminished;
under Teague v. Lane, 489 U.S. 288 (1989), and
Schriro v. Summerlin, 542 U.S. 348 (2004),
Crawford should be applied retroactively to
cases on collateral review, and the Supreme
Court of Kansas erred in holding otherwise.
In Crawford v. Washington, this Court overruled its
decision in Ohio v. Roberts, 448 U.S. 56 (1980), as to the
standards under which testimonial hearsay may be
admitted at trial without violating the Sixth Amendment’s
Confrontation Clause. Crawford, 541 U.S. at 67. Whereas
Roberts conditioned the admission of all hearsay on
whether it falls within a “firmly rooted hearsay exception”
or bears “particularized guarantees of trustworthiness,”
for testimonial hearsay Crawford held that “the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross-
examination.” Jd. at 62.
In its decision, the Supreme Court of Kansas held that
Crawford is not retroactively applicable to cases on collat-
eral review, continuing a nationwide jurisdictional split
over that question, which this Court has recognized as an
issue of national importance: three weeks before the
Supreme Court of Kansas rendered its decision in this
case, this Court granted certiorari to take up this issue.
Wharton v. Bockting, 126 S. Ct. 2017 (2006). Two other
petitions for certiorari concerning this question currently
are also before the Court. New Mexico v. Forbes, Case No.
05-644 (U.S. filed Nov. 17, 2005); Lave v. Quarterman,
Case No. 05-11552 (U.S. filed June 16, 2006).
The Ninth Circuit and the Supreme Court of New
Mexico have held that Crawford is collaterally retroactive
per Teague and Summerlin.’ The First, Second, Fifth,
Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits have
held otherwise.’ In addition to Kansas, appellate courts of
eleven states agree with those circuits.’ The remaining
federal and state appellate courts have not addressed this
question.
' Bockting v. Bayer, 399 F.3d 1010, 1012-1013 (9th Cir. 2005),
opinion amended, 408 F.3d 1127 (9th Cir. 2005), reh’g en banc denied,
418 F.3d 1055 (9th Cir. 2005), cert. granted sub nom., Wharton, 126
S. Ct. at 2017; State v. Forbes, 119 P.3d 144, 148 (N.M. 2005), cert. filed,
Case No. 05-644 (Nov. 17, 2005).
* McGonagle v. United States, 137 Fed. Appx. 373, 380 (1st Cir.
2005), cert. denied, 126 S. Ct. 506 (2005); Mungo v. Duncan, 393 F.3d
327, 336 (2d Cir. 2004), cert. denied sub nom., Mungo v. Greene, 544
U.S. 1002 (2005); Lave v. Dretke, 444 F.3d 333, 337 (5th Cir. 2006), cert.
filed sub nom., Lave v. Quarterman, Case No. 05-11552 (U.S. filed June
16, 2006); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005), Murillo v.
Frank, 402 F.3d 786, 790-791 (7th Cir. 2005); Evans v. Luebbers, 371
F.3d 438, 444-445 (8th Cir. 2004), cert. denied sub nom., Evans v. Roper,
543 U.S. 1067 (2005); Brown v. Uphoff, 381 F.3d 1219, 1226-1227 (10th
Cir. 2004), cert. denied sub nom., Brown v. Lampert, 543 U.S. 1079
(2005); Espy v. Massac, 443 F.3d 1362, 1367 (11th Cir. 2006).
* In re Moore, 133 Cal. App. 4th 68, 77-78 (2005); Edwards v.
People, 129 P.3d 977, 988 (Colo. 2006), reh’g denied, 2006 Colo. LEXIS
214 (2006), Chandler v. Crosby, 916 So. 2d 728, 731 (Fla. 2005),
Redwine v. State, 280 Ga. 58, 63, 623 S.E.2d 485 (2005); State v.
Williams, 695 N.W.2d 23, 29 (lowa 2005); Commonwealth v. Kartell, 20
Mass. L. Rptr. 134 (Mass. Super. 2005); Danforth v. State, 700 N.W.2d
530, 532 (Minn. App. 2005), review granted in part and pending (Minn.
Oct. 18, 2005); Ennis v. State, 122 Nev. Adv. Rep. 60 (Nev. 2006); State v.
Potts, 2006 Ohio 2100, *P17 (Ohio App. 2006); Commonwealth uv.
Brooks, 875 A.2d 1141, 1148 (Pa. Super. 2005); In re Markel, 154
Wash.2d 262, 273, 111 P.3d 249 (2005).
Without exception, “new rules always have retroactive
application to criminal cases on direct review.” Brecht v.
Abrahamson, 507 U.S. 619, 634 (1993). If a decision
expressly overrules a prior decision, it is a “new rule.”
Graham v. Collins, 506 U.S. 461, 467 (1993). As to collat-
eral review, however, unless they fall “within an exception
to the general rule, new constitutional rules of criminal
procedure will not be applicable to those cases which have
become final before the new rules are announced.” Teague
v. Lane, 489 U.S. 288, 310 (1989). There are two excep-
tions: (1) if the new rule “places certain kinds of primary,
private individual conduct beyond the power of the crimi-
nal law-making authority to proscribe,” and (2) if the new
rule “requires the observance of those procedures that are
implicit in the concept of ordered liberty,” meaning “water-
shed rules of criminal procedure.” Jd. at 311. Watershed
rules are those which “properly alter our understanding of
the bedrock procedural elements that must be found to
vitiate the fairness of a particular conviction,” such as “the
right to counsel at trial...” Jd. at 311-312. Such rules are
those “without which the likelihood of an accurate convic-
tion is seriously diminished.” Shriro v. Summerlin, 542
U.S. 348, 352 (2004).
The Teague doctrine arose out of the three criteria this
Court historically has employed to determine whether a
new Constitutional doctrine should be applied retroac-
tively: “(a) the purpose to be served by the new standards,
(b) the extent of the reliance by law enforcement authori-
ties on the old standards, and (c) the effect on the admini-
stration of justice of a retroactive application of the new
standards.” Brown v. Louisiana, 447 U.S. 323, 328 (1980)
(quoting Stovall v. Denno, 388 U.S. 293, 297 (1967)).
Foremost among these three factors is the first one, “the
10
purpose to be served by the new constitutional rule.” Jd.
(quoting Desist v. United States, 394 U.S. 244, 249 (1969)).
A new Constitutional rule must be given complete retroac-
tive effect where its main purpose is to overcome an aspect
of a criminal trial which substantially impairs its truth-
finding function and so raises serious questions about the
accuracy of guilty verdicts in past trials. Jd. at 328 and
334. This is because “Any practice that threatens the jury’s
ability properly to perform [its truth-finding] function
poses a similar threat to the truth-determining process
itself.” Jd. at 334. When the new rule overcomes impair-
ment to truth-finding, not even the third factor - the
burden on the administration of justice —- can overcome
retroactivity. Jd. (citing Williams v. United States, 401 U.S.
646, 653 (1971) (plurality opinion of White, J.)).
Under these standards, this Court has declared to be
fully retroactive a variety of new Constitutional rules of
criminal procedure — watershed rules without which the
likelihood of an accurate conviction is seriously dimin-
ished. This includes new rules guaranteeing the accused’s
right to assistance of counsel at trial, Gideon v. Wain-
wright, 372 U.S. 355 (1963), at arraignment, Hamilton v.
Alabama, 368 U.S. 52 (1961), at a guilty plea hearing,
Arsenault v. Massachusetts, 393 U.S. 5 (1968), at hearings
over the revocation of probation, McConnell v. Rhay, 393
U.S. 2 (1968), and on appeal, Douglas v. California, 372
U.S. 353 (1963). As well, new rules have been declared
fully retroactive involving the admission into evidence of
extrajudicial confessions, Roberts v. Russell, 392 U.S. 293
(1968), the procedure to be used in determining the volun-
tariness of confessions, Jackson v. Denno, 378 U.S. 368
(1964), the procedure to be used in determining an indigent
appellant’s right to a free transcript, Griffin v. Illinois, 351
11
U.S. 12 (1956), the standard of proof required in trials of
juveniles for offenses which would be crimes if committed
by an adult, V. v. New York, 407 U.S. 203 (1972), the
application of the Constitutional guarantee against double
jeopardy to the states, Price v. Georgia, 398 U.S. 323
(1970), and the impropriety of disqualifying prospective
jurors because they have certain views as to capital
punishment. Witherspoon v. Illinois, 391 U.S. 510 (1968).
Analogous to the rule at issue in Crawford, however,
is Berger v. California, 393 U.S. 314 (1969) (per curiam), in
which this Court declared the new rule announced in
Barber v. Page, 390 U.S. 719 (1968), to be retroactive to
cases that had become final before Barber was announced.
In Barber, this Court promulgated a new rule — interpret-
ing the Confrontation Clause — governing the propriety of
introducing, at a jury trial, the transcripts of preliminary
hearing testimony of witnesses not present at trial. Jd. at
721. There, the Court emphasized, “There are few sub-
jects, perhaps, upon which this Court and other courts
have been more nearly unanimous than in their expres-
sions of belief that the right of confrontation and cross-
examination is an essential and fundamental requirement
for the kind of fair trial which is this country’s constitu-
tional goal.” Jd. (quoting Pointer v. Texas, 380 U.S. 400,
405 (1965)). Discussing the retroactivity of Barber in
Berger, the Court unanimously and unequivocally held
that violation of the Confrontation Clause can have “a
significant effect on the ‘integrity of the fact-finding
process,” Berger, 393 U.S. at 315 (referring to Linkletter v.
Walker, 381 U.S. 618, 639 (1965)), thereby invoking the
“purpose” criterion of the classic tripartite analysis. Even
the prosecution’s “claim of a significant countervailing
12
interest based upon reliance on previous standards” was
“most unpersuasive” against full retroactivity. Id.
Crawford clearly fits the second Teague exception —
even more so than the new Confrontation Clause rule in
Barber that this Court declared fully retroactive in Berger.
Whereas Barber concerned the admission of a transcript of
sworn testimony from a preliminary hearing, Crawford
involves the admission of evidence that is even more
unreliable under the Sixth Amendment: testimonial
hearsay. In overruling the hearsay approach of Ohio v.
Roberts — “a fundamental failure” on the part of the Court
“to interpret the Constitution in a way that secures its
intended constraint on judicial discretion,” Crawford, 541
U.S. at 67 — the Court announced a watershed rule of
procedure without which the likelihood of an accurate
conviction is seriously diminished. Just as in Barber and
Berger, the violations of the Confrontation Clause permit-
ted erroneously by Roberts had a significant negative
effect on the integrity of the fact-finding process. The new
rule of Crawford overcomes this impairment to truth-
finding: instead of the admission of testimonial hearsay
being conditional on whether it falls within a “firmly
rooted hearsay exception” or bears “particularized guaran-
tees of trustworthiness,” as it was under Roberts, now,
under Crawford, when the hearsay is testimonial — as it
was in this case — “the Sixth Amendment demands what
the common law required: unavailability and a prior
opportunity for cross-examination.” Jd. at 62. As the Ninth
Circuit observed in Bockting,
[A]t the heart of the Court’s concerns in Craw-
ford was the reliability of admitted evidence.
Where admitted evidence is unreliable, the accu-
racy of convictions is seriously undermined. That
13
the rule in Crawford is one without which the ac-
curacy of convictions would be seriously under-
mined is further borne out by the Court’s own
description of its prior doctrine as a “rare case” of
“fundamental failure.” (Crawford, 541 U.S. at
67]. The difference between pre- and post-
Crawford Confrontation Clause jurisprudence is
not the sort of change that can be dismissed as
merely incremental. Instead, it is an “absolute
pre-requisite to fundamental fairness.”
399 F.3d at 1018-1019 (quoting Sawyer v. Smith, 497 U.S.
227, 244 (1990)).
For testimonial hearsay of an unavailable declarant to
be admissible, Crawford’s new watershed rule of criminal
procedure requires that there be a prior opportunity to
cross-examine the declarant. In Mr. Drach’s case, the
testimonial hearsay was that of six counselors and aid
workers who elicited the alleged declarations from Mrs.
Drach in the course of her treatment for severe depression
and alcoholism while attempting to convince her to divorce
her husband and press charges against him for supposed
spousal abuse. By the time of trial, Mrs. Drach — the
decedent — was unavailable. Although her alleged state-
ments were elicited in an accusatory manner and made
under circumstances that the witnesses believed would be
available for use at a later trial, there was no prior oppor-
tunity to question her as to the veracity of the alleged
statements.
Therefore, if Crawford is retroactively applicable on
collateral review, the admission of that highly prejudicial
hearsay against Mr. Drach — the only evidence against him
that he was unable to rebut directly, because he could not
possibly have done so after Mrs. Drach’s death — clearly
14
violated the Confrontation Clause. The defense rebutted
the prosecution’s forensic evidence. It rebutted the prose-
cution’s evidence against the propensity of the decedent to
commit suicide. It could not, however, rebut the specious
hearsay testimony regarding Mr. Drach’s character that
was completely out of line with all the other evidence
regarding the Drachs’ relationship introduced at trial.
Without that hearsay testimony, reasonable doubt clearly
exists that Mr. Drach committed the crime of premedi-
tated murder. Applying Crawford retroactively to this case
undoubtedly would affect the reliability of Mr. Drach’s
conviction. The rule in Crawford is one “without which the
likelihood of an accurate conviction is seriously dimin-
ished.”
This Court should issue its writ of certiorari to answer
the important federal question of whether its testimonial
hearsay rule announced in Crawford v. Washington is
retroactive to cases on collateral appeal.
IL_ If Crawford v. Washington is not retroactively
applicable, the decision of the Supreme Court
of Kansas upholding the admission of hearsay
evidence under Kansas’s unique, extra-statutory
marital discord hearsay exception violates the
Confrontation Clause of the Sixth Amendment,
in direct conflict with the decision of this
Court in Ohio v. Roberts, 448 U.S. 56 (1980) and
its progeny, Idaho v. Wright, 497 U.S. 805 (1990),
White v. Illinois, 502 U.S. 346 (1991), and Lilly v.
Virginia, 527 U.S. 116 (1999).
Without question, “it is wholly consistent with the
Framers’ design to afford the States flexibility in their
development of hearsay law.” Crawford, 541 U.S. at 68.
15
This Court consistently recognizes, however, that there are
clear limits to that flexibility. Where a state’s rationale for
admitting hearsay evidence falls outside the boundaries of
what the Confrontation Clause allows, it is unconstitu-
tional and erroneous. See Wright, 497 U.S. at 817; Lilly,
527 U.S. at 134 and 127. The decision of the Supreme
Court of Kansas in this case upheld just such an unconsti-
tutional hearsay exception when it affirmed the admission
of hearsay testimony against Mr. Drach under Kansas’s
unique marital discord hearsay exception. This Court
should not tolerate such an assault on the Confrontation
Clause.
In 1967, the Supreme Court of Kansas transcended
the Kansas Legislature’s enumerated hearsay exceptions
in K.S.A. § 60-460 to create a new exception to the general
proscription of hearsay evidence: the marital discord
exception. State v. Patterson, 200 Kan. 176, 182, 434 P.2d
808 (1967). This exception, directed solely at cases of
alleged marital homicide, allows the prosecution to admit
into evidence any hearsay statements that the decedent
allegedly made concerning abusive treatment or threats by
the defendant. See State v. Rice, 261 Kan. 567, 583-85, 932
P.2d 981 (1997). Neither this Court, nor the Federal Rules
of Evidence, nor any other common-law jurisdiction, nor
even the Kansas Statutes recognize such a broad excep-
tion. See Christine Arguello, The Marital Discord Exemp-
tion to Hearsay; Fact or Judicially-Legislated Fiction?, 46
KAN. L. REV. 63, 63-66 (1997).
At Mr. Drach’s trial, the trial court admitted hearsay
testimony (detailed ante) under a presumed, sweeping res
gestae exception. On direct appeal of his judgment of
conviction and sentence, Mr. Drach argued that the res
gestae exception, long abandoned in the federal courts,
16
violated the Confrontation Clause and accordingly was
reversible error. The Supreme Court of Kansas bypassed
that argument and held instead that the hearsay testi-
mony was “admissible under the marital discord excep-
tion,” and therefore, “Drach’s argument under this issue is
moot” (App. 63). Accordingly, in his state habeas case, Mr.
Drach argued that admission of the testimony under the
marital discord exception also violated the Confrontation
Clause. The state court disagreed, however, and affirmed
the admission of the hearsay under the marital discord
exception (App. 34-35).
In Ohio v. Roberts, 448 U.S. 56 (1980), this Court held
that hearsay from an unavailable declarant is only admis-
sible “if it bears adequate ‘indicia of reliability.’ Reliability
can be inferred without more in a case where the evidence
falls within a firmly rooted hearsay exception. In other
cases, the evidence must be excluded, at least absent a
showing of particularized guarantees of trustworthiness.”
Id. Therefore, “the ‘indicia of reliability’ requirement could
be met in either of two circumstances: [1] where the
hearsay statement ‘falls within a firmly rooted hearsay
exception,’ or [2] where it is supported by ‘a showing of
particularized guarantees of trustworthiness.’” Wright,
497 U.S. at 816 (citations omitted). Here, the admission of
the hearsay under the marital discord exception fails to
satisfy either circumstance.
The marital discord exception clearly is not a firmly
rooted hearsay exception. Under Roberts, a hearsay
exception is “firmly rooted” if “in light of ‘longstanding
judicial and legislative experience,’ ... it ‘rests [on] such
[a] solid foundation that admission of virtually any evi-
dence within [it] comports with the substance of the
constitutional protection.’” Lilly, 527 U.S. at 126 (citing
17
Roberts, 448 U.S. at 66 (quoting Mattox v. United States,
156 U.S. 237, 244 (1895))). To determine whether an
exception fits this definition, the Court considers: (1) the
length of time the exception has existed; (2) the number of
jurisdictions that recognize the exception; and (3) whether
the Federal Rules of Evidence recognize the exception.
White, 502 U.S. at 356.
Employing this analysis, this Court has declared the
following to be “firmly rooted” exceptions: “voluntary
admissions against the declarant,” Lilly, 527 U.S. at 127,
“exculpatory evidence offered by a defendant who claims
that the declarant committed or was involved in the
offense,” id. at 130, “spontaneous declarations,” White, 502
U.S. at 356, and “statements made for purposes of medical
diagnosis or treatment.” Jd. Likewise, this Court has held
several purported exceptions not to be firmly rooted under
Roberts: the “residual exception,” Wright, 497 U.S. at 817,
“accomplice confessions,” Lilly, 527 U.S. at 134, and a
sweeping “statements against penal interest” exception
standing on its own. /d. at 127.
Kansas’s “judicially created marital discord exception”
plainly does not satisfy the considerations necessary for it
to be a firmly rooted hearsay exception under Roberts,
Wright, White, and Lilly. The first consideration in deter-
mining whether a hearsay exception is firmly rooted is the
length of time it has existed. The Supreme Court of Kan-
sas first announced the marital discord exception in 1967
in State v. Patterson, 200 Kan. at 176. It has only existed
for less than forty years, far less time than the exceptions
this Court has upheld as “firmly rooted,” all of which had
support in English law before American independence in
1776. See Lilly, 527 U.S. at 127, 130; White, 502 U.S. at
356. Under this Court’s reading, the length of existerice of
18
Kansas’s marital discord exception does not compare with
that of a firmly rooted exception.
The second consideration is the number of jurisdic-
tions that recognize the exception. The marital discord
exception is unique to Kansas. No other jurisdiction
anywhere recognizes it. See Arguello, 46 KAN. L. REV. 63.
The marital discord exception lacks any support whatso-
ever in this element.
The third consideration is whether the Federal Rules
of Evidence recognize the exception. They do not. The
Federal Rules plainly have no marital discord exception to
hearsay. Nowhere in Federal Rules of Evidence 803-807,
which discuss the exceptions to hearsay under federal law,
is anything even vaguely resembling the marital] discord
exception recognized or understood.
The marital discord exception thus cannot be “firmly
rooted” as this Court has interpreted such exceptions in
Wright, White, and Lilly. It has existed for a very short
time. It exists only in Kansas. It has no analogy in the
Federal Rules of Evidence. Accordingly, the hearsay
testimony admitted against Mr. Drach would be lawful
only if it was supported by a showing of particularized
guarantees of trustworthiness.
The admission of the hearsay evidence, however,
clearly could not possibly have had such support. Under
Roberts, the “particularized guarantees of trustworthi-
ness” that a trial court is required to find for admission
under the Confrontation Clause must be drawn “from the
totality of circumstances that surround the making of the
statement and that render the declarant particularly
worthy of belief.” Wright, 497 U.S. at 820. A statement that
satisfies this requirement must be “so trustworthy that
19
adversarial testing would add little to its reliability.” Jd. at
821.
So, “unless an affirmative reason, arising from the
circumstances in which the statement was made, provides
a basis for rebutting the presumption that a hearsay
statement is not worthy of reliance at trial, the Confronta-
tion Clause requires exclusion of the out-of-court state-
ment.” Jd. The hearsay must be reliable “by virtue of its
inherent trustworthiness, not by reference to other evi-
dence at trial.” Jd. at 822. “In other words, if the decla-
rant’s truthfulness is so clear from the surrounding
circumstances that the test of cross-examination would be
of marginal utility, then the hearsay rule does not bar
admission of the statement at trial.” Jd. at 820 (emphasis
added).
The hearsay evidence at issue was that of volunteers
and professionals who testified that Mrs. Drach allegedly
told them her husband had abused her. Over the defense’s
objection, the trial court invoked the res gestae exception
to hearsay and admitted the evidence. On direct appeal,
the Supreme Court of Kansas held that analysis of res
gestae was unnecessary because the evidence was admis-
sible under the marital discord exception (App. 63).
Because the marital discord exception is not “firmly
rooted” under this Court’s approach per the Roberts
doctrine, the trial court would have needed to find that
Mrs. Drach’s alleged statements had particularized guar-
antees of trustworthiness to be admissible. That is, the
alleged statements of Mrs. Drach must have been so
trustworthy that adversarial testing would add little to
their reliability. The test of cross-examination of Mrs.
Drach would have needed to be of marginal utility. Such
findings would have needed to be clear from the totality of
20
circumstances surrounding the statements and not based
on any other evidence introduced at trial.
It simply does not make sense to say that the alleged
statements of Mrs. Drach offered as hearsay had these
“particularized guarantees of trustworthiness” so that
adversarial testing through cross-examination of Mrs.
Drach would have added little to their reliability and
would have been “of marginal utility.” Mrs. Drach was an
alcoholic. She was severely depressed. Evidence at trial
indicated that she had attempted to commit suicide in the
months following the deaths of her mother and son.
Evidence also indicated that she often was clumsy and fell
down. The hearsay witnesses were attempting to get Mrs.
Drach to leave her husband. They said that she told them
her husband had abused her. Her brother-in-law, however,
testified that Mrs. Drach told him she had fabricated those
statements so as to appease what the hearsay witnesses
wanted of her. .
Thus, if Mrs. Drach were alive to be cross-examined at
trial as to the veracity of and circumstances under which
she alleged!y made these statements, such adversarial
testing would have been of great utility. In light of the
evidence of her alcoholism, her suicide attempts, her
physical instability, and her alleged untruthfulness to the
hearsay witnesses, the defense directly could have im-
peached these statements. Clearly, the hearsay testimony
did not possess the “particularized guarantees of trustwor-
thiness” necessary to satisfy this Court’s Confrontation
Clause analysis under Roberts and Wright.
In its decision, the Supreme Court of Kansas stated
that there were particularized guarantees of trustworthi-
ness because “the trial court is presumed to have made all
> 21
necessary factual findings to support its judgment” (App.
35). Particularized guarantees of trustworthiness are
necessary to admit hearsay testimony where no “firmly
’ rooted” hearsay exception applies. At trial, the court
admitted the hearsay testimony under the res gestae
exception, which we may presume the district court
believed was firmly rooted under Roberts. Under the trial
court’s reasoning, no particularized guarantees of trust-
worthiness were necessary to support the admission of the
hearsay. The Supreme Court of Kansas disagreed but held
that they still were admissible under the marital discord
exception, imputing a finding of particularized guarantees
to the trial court anyway.
The decision of the Supreme Court of Kansas there-
fore seems to suggest that the trial court had the ability to
divine the future. The trial court, erroneously believing
the hearsay to be proper under a res gestae exception with
no particularized guarantees of trustworthiness necessary,
could not possibly have known that the Supreme Court of
Kansas would rule otherwise on direct appeal. The state
supreme court cannot then logically assert that the trial
court did make those findings because “the trial court is
presumed to have made all necessary factual findings to
support its judgment,” (App. 35) (emphasis added), be-
cause the trial court did not believe that such findings
were necessary at the time of trial. To hold otherwise is to
find that the trial court had powers of divination. This line
of reasoning clearly makes no sense.
The hearsay testimony admitted at trial did not have
the particularized guarantees of trustworthiness neces-
sary to satisfy the Confrontation Clause under Roberts
and its progeny. The rule in Kansas that “the trial court is
presumed to have made all necessary factual findings to
22
support its judgment” is not valid here, because the trial
court did not believe that such factual findings were
necessary under its erroneous approach to hearsay. Be-
cause the marital discord exception is not “firmly rooted”
under Wright, White, and Lilly, and the hearsay testimony
did not have the “particularized guarantees of trustwor-
thiness” necessary to satisfy the Confrontation Clause, the
admission of the hearsay testimony against Mr. Drach
under Kansas’s marital discord hearsay exception violated
the Confrontation Clause.
Because marital discord is not a firmly rooted excep-
tion and the trial court could not logically have made the
necessary factual findings as to satisfy the particularized
guarantees of trustworthiness to survive Constitutional
scrutiny under the Roberts approach, the admission of the
hearsay evidence violated Mr. Drach’s Sixth Amendment
right to confront the witnesses against him. The Supreme
Court of Kansas clearly erred in holding otherwise.
Thus, this Court should issue its writ of certiorari to
answer the important federal question of whether the
decision of the Supreme Court of Kansas upholding the
admission of hearsay evidence under Kansas’s unique,
judicially-created, extra-statutory “marital discord”
hearsay exception violated the Confrontation Clause, in
direct conflict with this Court’s decisions in Roberts,
Wright, White, and Lilly.
23
Ill. The decision of the Supreme Court of Kansas
that res judicata barred Mr. Drach from chal-
lenging the Constitutionality of admitting
hearsay evidence under Kansas’s unique mari-
tal discord exception does not preclude this
Court from exercising certiorari jurisdiction
over his federal claim.
Under its doctrine that “where an appeal is taken
from the sentence imposed and/or a conviction, the judg-
ment of the reviewing court is res judicata as to all issues
actually raised, and those issues that could have been
presented, but were not presented, are deemed waived,”
State v. Neer, 247 Kan. 137, 140-141, 795 P.2d 362 (1990),
the Supreme Court of Kansas held that res judicata barred
Mr. Drach from challenging the Constitutionality of
admitting hearsay evidence against him under its marital
discord exception (App. 34-35). In some circumstances,
this holding could constitute an independent and adequate
ground of state law barring this Court from exercising its
certiorari jurisdiction. Here, however, the unique develop-
ment of Kansas’s res judicata doctrine create a federal
question of whether the Supreme Court of Kansas’s
application of res judicata to Mr. Drach’s marital discord
argument conflicts with this Court’s holding in Teague.
Moreover, even if the res judicata holding remains a non-
federal ground here, it is clearly unsupportable and must
be disregarded.
This Court declines “to review state court judgments
which rest on independent and adequate state grounds,”
Fay v. Noia, 372 U.S. 391, 428 (1963). Res judicata usually
qualifies as one such state ground. See Durley v. Mayo, 351
U.S. 277, 284-285 (1956). Where the state law is based on
federal law or a prior decision of this Court, however, it is
24
not so independent or adequate as to defeat this Court’s
jurisdiction. See Kansas v. Marsh, 126 S. Ct. 2516, 2522
(2006) (certiorari jurisdiction was not defeated by ground
of state law where state law rested on a prior decision of
this Court). The Supreme Court of Kansas expressly
adopted its doctrine of res judicata on collateral review
from this Court’s own definition in Teague. See Neer, 247
Kan. at 142 (quoting Teague, 489 U.S. at 297). Therefore,
the Kansas court’s judgment that res judicata barred Mr.
Drach from raising his marital] discord claim cannot be an
independent and adequate ground of state law. Effectively,
the Kansas court held that this Court’s interpretation of
res judicata on collateral review in Teague barred Mr.
Drach’s claim. Whether res judicata did, in fact, bar Mr.
Drach, therefore rests on an interpretation of a prior
decision of this Court. Accordingly, the Kansas court’s
application of res judicata to Mr. Drach is wholly within
this Court’s jurisdiction to review.
The Kansas court clearly erred in applying res judi-
cata to Mr. Drach’s cause. On direct appeal, Mr. Drach
argued that admitting the hearsay under a purported res
gestae exception violated the Confrontation Clause. In that
appeal, the Supreme Court of Kansas held that even if
admission as res gestae was unconstitutional, the hearsay
was admissible on alternative grounds under Kansas’s
marital discord hearsay exception. Accordingly, in his state
habeas case, Mr. Drach argued that admitting the hearsay
under that exception also was unconstitutional. Because
Mr. Drach could not possibly have raised the issue of the
marital discord exception’s Constitutionality on direct
appeal, res judicata is inapplicable.
This Court will refuse to defer to a ground of state law
where it clearly is unsupportable. NAACP v. Alabama ex
25
rel. Patterson, 357 U.S. 449, 455 (1958). For, “if non-federal
grounds, plainly untenable, may be thus put forward
successfully, [this Court’s] power to review easily may be
avoided.” Ward v. Bd. of County Comm’rs, 253 U.S. 17, 22
(1920). Accordingly, where res judicata “is so clearly ill
founded that it cannot sustain the judgment,” it will not
qualify as an independent or adequate ground of state law,
particularly where it has been used to strip a defendant of
a fundamental federal right. Postal Tel. Cable Co. v.
Newport, 247 U.S. 464, 475-476 (1918).
If the application of Kansas’s doctrine of res judicata
is offered as a ground of state law in this case, it is wholly
unsupportable. At Mr. Drach’s trial, the court admitted
this hearsay testimony only under the res gestae exception.
Accordingly, on direct appeal to the Supreme Court of
Kansas in 2000, Mr. Drach argued that admission of the
hearsay under the res gestae exception violated the Con-
frontation Clause as construed under Roberts. The Kansas
appellate court ruled that even if the evidence was inad-
missible under the res gestae exception (or even if res
gestae was an unconstitutional exception), it would, for the
first time, raise the marital discord exception to allow the
evidence.
On direct appeal, Mr. Drach never argued that the
judicially-created marital discord exception was itself
unconstitutional. Instead, his argument concerned only
the res gestae because that was the sole ground cited by
the trial cert. Accordingly, the issue of whether the
marital discord exception that the state supreme court
had used on direct appeal violated the Confrontation
Clause properly was raised for the first time in his state
habeas case. Plainly, he presented a new argument. He did
not present it in his direct appeal. He could not have
26
presented it in his direct appeal, because the error below
was the admission of the hearsay under the res gestae
exception. He could not have known that the Supreme
Court of Kansas sua sponte would employ the marital
discord exception to uphold the admission of the hearsay.
Therefore, whether the admission of the hearsay testi-
mony under Kansas’s “marital discord” exception violates
the Confrontation Clause was a new issue in his state
habeas case.
In its decision affirming Mr. Drach’s conviction on
direct appeal, the Kansas court stated, “Hearsay state-
ments made by a deceased spouse-declarant are admissi-
ble as evidence of marital discord if the trial court finds
that the statements have particular guarantees of trust-
worthiness. See Ohio v. Roberts” (App. 63) (other citations
omitted). Mr. Drach challenged the Constitutionality of the
marital discord exception as not fitting within the “firmly
rooted hearsay exception” and “particularized guarantees
of trustworthiness” requirements that this Court promul-
gated in Roberts and its progeny. Clearly, this issue was
not before the Kansas court on direct appeal. It could not
have been. Thus, because the issue was not raised on
direct appeal, and it was unmistakably a new issue before
the Kansas court, the doctrine of res judicata simply was
unsupportable.
Kansas’s res judicata doctrine as pertaining to collat-
eral review cannot be an independent and adequate
ground of state law: it rests expressly on this Court’s
holding in Teague. The Kansas court erred in applying
that holding to Mr. Drach’s marital discord argument.
Even if it is a non-federal ground, its application to this
claim clearly is unsupportable and ill-founded. The admis-
sion of hearsay testimony under Kansas’s unique marital
27
discord exception plainly violates the Confrontation
Clause. The Kansas court’s invocation of res judicata only
served to strip Mr. Drach of his Sixth Amendment rights
and uphold Kansas’s maverick hearsay exception. If res
judicata is a federal ground here, applying it to Mr. Drach
was error. If it is a non-federal ground, it is unsupportable
and must be disregarded.
CONCLUSION
This Court should issue its writ of certiorari to review
the decision of the Supreme Court of Kansas in this case.
Respectfully submitted,
DENNIS OWENS, Attorney
Counsel of Record
7th Floor, Harzfeld’s Building
1111 Main Street
Kansas City, Missouri 64105
Telephone: (816) 474-3000
Facsimile: (816) 474-5533
JEREMIAH KIDWELL, Attorney
7th Floor, Harzfeld’s Building
1111 Main Street
Kansas City, Missouri 64105
Telephone: (816) 474-3000
Facsimile: (816) 474-5533
Attorneys for the Petitioner
Roger Drach
App. 1
ROGER DRACH, Appellant, v. LOUIS BRUCE and
STATE OF KANSAS, Appellees.
No. 93,654
SUPREME COURT OF KANSAS
136 P.3d 390; 2006 Kan. LEXIS 364
June 9, 2006, Opinion Filed
PRIOR HISTORY: Appeal from Finney district court,
MICHAEL L. QUINT, judge.
DISPOSITION: Affirmed.
SYLLABUS: BY THE COURT
1. When reviewing the denial of a K.S.A. 60-1507
motion following an evidentiary hearing before the district
court, the appellate court reviews the factual underpin-
nings of the district court’s decision by a substantial
competent evidence standard and applies a de novo stan-
dard when reviewing the district court’s decision. The
ultimate denial of the 60-1507 motion involves a legal
question requiring independent appellate review.
2. Substantial evidence is evidence which possesses
both relevance and substance and which furnishes a
substantial basis of fact from which the issues can rea-
sonably be resolved. In other words, substantial evidence
is such legal and relevant evidence as a reasonable person
might accept as being sufficient to support a conclusion.
3. The right to present witnesses to establish a
defense is guaranteed under the Sixth Amendment right
to compulsory process. It is fundamental to a fair trial, and
denial of the right is a denial of due process under the
Fourteenth Amendment to the United States Constitution.
App. 2
Defendants have a right to testify in their own behalf. The
decisions which are to be made by the accused after full
consultation with counsel are: (1) what plea to enter; (2)
whether to waive jury trial; and (3) whether to testify on
his or her own behalf.
4. A convicted defendant’s claim that counsel’s
assistance was so defective as to require reversal of a
conviction has two components. First, the defendant must
show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that coun-
sel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable. Unless a defen-
dant makes both showings, it cannot be said that the
conviction resulted from a breakdown in the adversary
process that renders the result unreliable. Both the
performance and prejudice prongs of the ineffective assis-
tance of counsel inquiry are mixed questions of law and
fact on appeal requiring de novo review.
5. With no objection to inadequate factual findings,
the trial court is presumed to have made all necessary
factual findings to support its judgment.
6. The district court was in the better position to
weigh the credibility of the witnesses, and this court does
not pass on the credibility of witnesses or reweigh conflict-
ing evidence.
7. The Sixth Amendment to the United States
Constitution provides that in all criminal prosecutions, the
accused shall enjoy the right to be confronted with the
App. 3
witnesses against him or her. This constitutional provision
does not preclude the admission of all out-of-court state-
ments. In determining the admissibility of hearsay excep-
tions, the court must also consider the requirements of the
Confrontation Clause of the United States Constitution.
The Confrontation Clause can operate to bar the admis-
sion of evidence that would otherwise be admissible under ©
an exception to the hearsay rule if confrontation require-
ments are not met.
8. Kansas appellate courts have applied a three-step
analysis for determining whether a change in the law
should be applied retroactively in a criminal case under
collateral attack. First, the court must determine whether
the movant has properly raised the issue in his or her
collateral attack. Supreme Court Rule 183(c) (2005 Kan.
Ct. R. Annot. 228) limits the issues that may be raised in a
collateral attack. Second, the court determines whether
the case was final when the new law was established. If a
case was final when the new law was established, the
general rule is that the new law will not be applied to
cases on collateral attack. Third, if the case was final
before the new law was established, the court must deter-
mine whether any exception to the general rule against
retroactive application applies.
9. A new rule of constitutional criminal procedure is
not applied retroactively on collateral review unless (1) it
places certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
prosecute, or (2) it is a watershed rule requiring the
observance of those procedures that are implicit in the
concept of ordered liberty.
App. 4
10. New rules of procedure generally do not apply
retroactively. They do not produce a class of persons
convicted of conduct the law does not make criminal, but
merely raise the possibility that someone convicted with
use of the invalidated procedure might have been acquit-
ted otherwise. Because of this more speculative connection
to innocence, we give retroactive effect to only a small set
of watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal pro-
ceeding. That a new procedural rule is fundamental in
some abstract sense is not enough; the rule must be one
without which the likelihood of an accurate conviction is
seriously diminished. This class of rules is extremely
narrow.
11. The new Confrontation Clause analysis set forth
in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177,
124 S. Ct. 1354 (2004), is not a watershed rule entitled to
retroactive application on collateral appeal because it was
not one without which the likelihood of an accurate convic-
tion is seriously diminished.
12. Under Kansas law, where an appeal is taken
from the sentence imposed and/or a conviction, the judg-
ment of the reviewing court is res judicata as to all issues
actually raised; those issues that could have been pre-
sented, but were not presented, are deemed waived. Where
a defendant’s claim has not been raised at trial or on direct
appeal, such a default prevents the defendant from raising
the claim in a second appeal or in a collateral proceeding.
13. When a second appeal is brought to this court
in the same case, the first decision is the settled law of
the case on all questions involved in the first appeal,
and reconsideration will not normally be given to such
App. 5
questions. Ordinarily, under the law of the case doctrine,
once an issue is decided by the court, it should not be
relitigated or reconsidered unless it is clearly erroneous or
would cause manifest injustice.
14. Res judicata, rather than the law of the case
doctrine, applies to issues raised in a K.S.A. 60-1507 civil
proceeding which have previously been resolved by a final
appellate court order in his or her criminal proceeding.
15. A K.S.A. 60-1507 motion cannot be used as a
substitute for a second appeal, absent a showing the trial
error affected constitutional rights and a showing of
exceptional circumstances.
COUNSEL: Jeremiah J. Kidwell, of Kansas City, Mis-
souri, argued the cause, and Dennis J.C. Owens, of Kansas
City, Missouri, was with him on the briefs for appellant.
Lois K. Malin, assistant county attorney, argued the cause,
and John P. Wheeler, Jr., county attorney, and Phill Kline,
attorney general, were with her on the brief for appellee.
JUDGES: The opinion of the court was delivered by
DAVIS, J.:
OPINION BY: DAVIS
OPINION: The opinion of the court was delivered by
DAVIS, J.: Roger Drach’s convictions of first-degree
premeditated murder, aggravated battery with great
bodily harm, and criminal possession of weapons in this
marital homicide case were upheld in State v. Drach, 268
Kan. 636, 1 P.3d 864 (2000). Drach appeals the denial of
his K.S.A. 60-1507 motion alleging that counsel was
ineffective by depriving him of the right to testify on his
Ann.
own behalf and that his convictions were based on inad-
missible hearsay evidence in violation of the Confrontation
Clause. We disagree and affirm.
Roger Drach was convicted of first-degree premedi-
tated murder, aggravated battery with great bodily harm,
and criminal possession of weapons in connection with the
death of his wife, Deanne Drach. A summary of the facts
giving rise to the charges and convictions as set forth in
our State v. Drach, 268 Kan. 636, 1 P.3d 864, decision
follows:
“Deanne died on August 19, 1994, as a result
of a gunshot wound to the chest. This case was
not commenced until nearly 2 years after her
death. The main issue at trial was whether
Deanne had committed suicide or had been mur-
dered by Drach.
“Drach claimed Deanne committed suicide,
that he was not in the room when she was shot,
and that he found her on the bed after he heard
the shot. The State’s expert witnesses testified
the wound could not have been self-inflicted.
Drach’s expert witnesses testified they were
99.5% certain the wound was self-inflicted.
“After review of the extensive record (18 vol-
‘umes, the longest of which is 291 pages), two
relevant facts emerged: Deanne had an affair 28
years before her death, and she had been abused
since her husband discovered the affair shortly
after it occurred.
“At trial, there was much hearsay evidence of
abuse suffered throughout the 34-year-marriage,
none of which is pinned down by time or date.
App. 7
“When Deanne’s body was examined at the
scene, she was on the bed in the southeast corner
of the room. The gun that was used to shoot her
was in the northwest corner of the room. The gun
was a derringer. Both parties’ experts testified the
bullet had been fired from the top barrel. Yet, the
top barrel had a live round with a dented primer in
it and an empty cartridge in the bottom chamber.
“Both old and new blood stains consistent
with Deanne’s blood were found throughout the
house, in Deanne’s purse, in her clothing, and in
Drach’s car, which would indicate Deanne had
been abused for a long period of time.
“When Deanne’s body was examined, she was
lying in fresh blood but had dried blood on her
arms and back. She had a 2.5 centimeter laceration
on the back of her head that went to the bone, two
black eyes, a laceration above the right eye, and
bruises all over her body. X-rays revealed new frac-
tures of the 9th, 10th, and 11th ribs.
“Two autopsies revealed old fractures of the
7th, 10th, 11th, and 12th ribs on the right side; a
healing fracture of the left ulna; a fracture of the
right arm that had recently been refractured;
and a gunshot wound to the left arm.
“Drach gave accounts of what happened that
did not appear to be accurate. For example, in
discussing a broken window, Drach said he had
to break into the house because he did not have
his key. Law enforcement officers testified the
window was broken from the inside out. Drach
testified that Deanne had facial bruises when he
checked her out of the hospital. Three witnesses
testified, however, that Deanne had no visible
App. 8
marks on her when they last saw her, including
the discharging nurse at the hospital.
“Drach also said he thought Deanne was
drinking again when she died. The autopsy re-
port showed her blood alcohol concentration was
.000. Drach also told officers Deanne got her gun
out of her car the day she was shot. Her car was
in storage at Dodge City at ail pertinent times
and had been for some time.” 268 Kan. at 637-39.
In the original appeal affirming Drach’s convictions
and sentences, we rejected Drach’s argument that the
marital discord evidence admitted by the district court as
res gestae was inadmissible hearsay because it fell under
the marital discord exception. We also concluded that such
evidence was not violative of the Confrontation Clause
because the statements had particular guarantees of
trustworthiness under Ohio v. Roberts, 448 U.S. 56, 65
L. Ed. 2d 597, 100 S. Ct. 2531(1980). 268 Kan. at 648-51.
On October 12, 2004, Drach filed an amended K.S.A.
60-1507 motion claiming that trial counsel was ineffective
in failing to inform him of the right to testify on his own
behalf and failing to object to prejudicial marital discord
testimony. He also claimed that his convictions were based
on hearsay testimony which violated the Confrontation
Clause under both Roberts and Crawford v. Washington,
541 U.S. 36, 158 L. Ed. 2d 177, 1248S. Ct. 1354 (2004).
An evidentiary hearing on the motion was held on
October 22, 2004. After hearing testimony from Drach
and his trial counsel Richard Marquez and John Lindner,
the district court denied the motion, finding overwhelm-
ing evidence existed that Drach was informed of his right
to testify on his own behalf and that his hearsay claims
were resolved against him in his direct criminal appeal
App. 9
and are bound by res judicata in his 60-1507 motion. The
court further concluded that Crawford should not be
applied retroactively to cases on collateral review, that the
marital discord testimony was not testimonial under
Crawford, and that Crawford does not apply under the
doctrine of equitable forfeiture because Drach was respon-
sible for Deanne’s death. The defendant timely appealed,
and we transferred this case on our own motion pursuant
to K.S.A. 20-3018(c).
The defendant raises two arguments on appeal: (1)
Defense counsel was ineffective by depriving Drach of the
right to testify on his own behalf; and (2) inadmissible
hearsay marital discord evidence was admitted at trial in
violation of the Confrontation Clause under Roberts and
Crawford.
K.S.A. 60-1507 Standard of Review
When reviewing the denial of a K.S.A. 60-1507 motion
following an evidentiary hearing before the district court,
the appellate court reviews the factual underpinnings of
the district court’s decision by a substantial competent
evidence standard and applies a de novo standard when
reviewing the district court’s decision. The ultimate denial
of the 60-1507 motion involves a legal question requiring
independent appellate review.
“Substantial evidence is evidence which possesses
both relevance and substance and which furnishes a
substantial basis of fact from which the issues can rea-
sonably be resolved. [In other words,] substantial evidence
is such legal and relevant evidence as a reasonable person
might accept as being sufficient to support a conclusion.
[Citation omitted.]” State v. Luna, 271 Kan. 573, 574-75,
24 P.3d 125 (2001).
App. 10
(1) Sixth Amendment Right to Testify
Background
Before the defense rested at trial, Drach had a discus-
sion with his two trial attorneys, Richard Marquez and
John Lindner, concerning testifying on his own behalf. The
attorneys did not agree whether Drach should testify.
Lindner thought the defense did not have “enough” with-
out his testimony, and Marquez was concerned that Drach
would lose his temper on the stand and that Drach might
have to admit that a battery had occurred. Although Drach
made statements that he was paying Marquez to decide if
he should testify, both attorneys confirmed that Drach was
informed that it was his decision whether to testify and
that Drach himself decided that he would not testify.
Drach argues that he did not feel like it was his decision to
make and the reason why he did not testify was because
Marquez did not want him on the stand.
Prior to the State’s rebuttal, the district court asked
Drach if he understood his Fifth Amendment right against
self-incrimination and that it was his decision alone
whether to testify on his own behalf. Drach replied that he
understood and had decided not to testify. The defense
rested without Drach testifying on his own behalf.
During the State’s rebuttal, Karen Althaus testified
that her husband had an affair with Deanne 25 years
earlier. In July 1972, Drach discovered the affair and
forced Deanne into the Althauses’ home at 1 a.m. Drach
was enraged and pointing a gun at a crying Deanne whose
clothing was torn. Drach stated that Deanne had con-
fessed to him and he wanted Mr. Althaus to do the same.
He made Deanne swear on a Bible to the number of times
they had sex, and he struck her across the face demanding
App. 11
to know what happened. Althaus testified that Drach said
he had four bullets and that he would kill Deanne and
himself because there was no reason to live. He forced
Deanne to call her parents, confess her unfaithfulness,
and tell them goodbye. He told her parents to drive to
Hutchinson to say goodbye to their daughter, and they left
the Althaus residence.
At the 60-1507 hearing, Drach testified that he
decided he wanted to testify when Althaus was called as a
rebuttal witness. He claimed he twice said, “‘Mr. Marquez,
she is lying. I’ve got to testify, I’ve got to do something.’”
Drach said that Marquez waived his hand and said, “‘Sit
down, sit down.’” Drach did not testify following rebuttal,
nor did he talk to his lawyers about their failure to let him
testify or raise the issue with the court.
Marquez testified that he did not remember Drach
asking to testify during rebuttal. He did recall that Drach
got agitated saying the testimony never happened and
Marquez tried to calm him down to prevent the jury from
seeing him upset. When Marquez asked Drach about
Althaus’ testimony, Drach first denied knowing who she
was and then said that they were friends. Lindner was on
his feet objecting to the rebuttal testimony and did not
hear the conversation. Lindner was never aware that day
that Drach had expressed a desire to testify.
Subsequently during the jury instruction conference,
Drach did not express to the district court that he wished
to testify when the district court asked if he would like an
instruction concerning his decision not to testify at trial.
Instead, Drach requested that such an instruction be
given.
App. 12
Discussion
Drach first claims that he was denied his constitu-
tional right to testify on his own behalf through ineffective
assistance of counsel. In denying Drach’s K.S.A. 60-1507
motion raising this issue, the district court reasoned:
“3. The first claim of the Plaintiff is that he was
not informed of his right to make the decision to
testify or not, during the trial. The evidence is
overwhelming that he was told on numerous times
that it was his decision and he chose not to testify.
A. During the Arraignment, the Journal Entry
and the statement of Defense Counsel both con-
firm that Mr. Drach was told that ‘He has the
right to testify, but only if he/she so desires.’
B. Both defense counsel confirmed that Mr.
Drach was told of his right to make the decision
and that both stated that it was his decision, af-
ter consulting with his attorneys that he would
not do so.
C. That at the conclusion of the defense’s case,
the Court inquired of the Defendant, Mr. Drach,
as follows:
‘The Court: Mr. Drach, do you under-
stand that you have the Fifth Amend-
ment privilege against self-incrimination,
and that’s your decision alone whether
you wish to testify. And you’ve made that
decision; is that correct sir?
‘Roger Drach: Yes, sir.
‘The Court: and it’s your desire, then
not to testify in this matter?
‘Roger Drach: Yes sir.’”
App. 13
“The right to present witnesses to establish a defense
is guaranteed under the Sixth Amendment right to com-
pulsory process. It is fundamental to a fair trial, and
denial of the right is a denial of due process under the
Fourteenth Amendment to the United States Constitu-
tion.” State v. Finley, 268 Kan. 557, Syl. 9 1, 998 P.2d 95
(2000). Defendants have a right to testify in their own
behalf. State v. Whitaker, 260 Kan. 85, 87, 917 P.2d 859
(1996). The “decisions which are to be made by the accused
after full consultation with counsel are: (1) what plea to
enter; (2) whether to waive jury trial; and (3) whether to
testify in his own behalf.” State v. McKinney, 221 Kan.
691, 694-95, 561 P.2d 432 (1977).
“*A convicted defendant’s claim that counsel’s assis-
tance was so defective as to require reversal of a conviction
or death sentence has two components. First, the defen-
dant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaran-
teed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that coun-
sel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable. Unless a defen-
dant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in
the adversary process that renders the result unreliable.’”
State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004)
(quoting Strickland v. Washington, 466 U.S. 668, 687, 80
L. Ed. 2d 674, 1048S. Ct. 2052 [1984]).
“Both the performance and prejudice prongs of the
ineffective assistance of counsel inquiry are mixed questions
App. 14
of law and fact on appeal requiring de novo review.” State
v. Griffin, 279 Kan. 634, Syl. J 6, 112 P.2d 862 (2005).
Before the district court, Drach argued that he “was
never informed by his trial counsel that he had the choice
to testify on his own behalf.” However, substantial evi-
dence in the record on appeal establishes that Drach was
advised of his right to testify at trial and decided to waive
that right following full consultation with both his attor-
neys and the court before the defense rested. As such,
Drach shifts gears and argues that the performance of
Drach’s counsel was deficient by refusing to allow him to
testify freely on his own behalf on surrebuttal. Drach
contends he could have countered Althaus’ detrimental
testimony by testifying that he and his wife were best
friends with the Althaus couple, that he did not have a gun
with him that night, that he never hurt his wife in 1972,
that he went to the Althaus residence around 11 p.m., that
he did not make the statements relayed by Althaus at
trial, and that no violence occurred that night.
The determination of whether Drach asserted his
right to testify during rebuttal amounted to a credibility
contest between Drach and Marquez. Although the district
court did not make specific findings in this regard, the
district court’s decision that Drach was informed of his
right to testify contrary to his allegations otherwise
demonstrates that it found Marquez’ testimony more
credible. See State v. Combs, 280 Kan. 45, 50, 118 P.3d
1259 (2005) (“With no objection to inadequate factual
findings, the trial court is presumed to have made all
necessary factual findings to support its judgment.”). The
district court was in the better position to weigh the
credibility of the witnesses, and this court does not pass on
the credibility of witnesses, reweigh conflicting evidence,
App. 15
and questions of credibility are resolved in favor of the
State. State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000).
As the appellate court must accept as true the evi-
dence and all inferences drawn from the evidence which
tend to support the findings cf the trial judge, Drach has
not established that counsel’s representation was defi-
cient. Even if he had demonstrated a deficiency, Drach has
not established prejudice by his inability to personally
refute this testimony: Drach had presented 12 witnesses
during his case in chief who testified that they had never
seen Drach act in a violent manner toward Deanne.
Clearly the jury by its verdict believed that Drach had
been violent with Deanne.
(2) Admission of Marital Discord Testimony in Viola-
tion of the Confrontation Clause
Background
In a pretrial hearing, the defense challenged the
admission of marital discord testimony on the grounds
that it was inadmissible hearsay admitted as res gestae and
presented a confrontation issue. The 60-1507 court re-
sponded that the Kansas Supreme Court had ruled upon
those issues and had carved out a specific exception for
marital discord cases. Although a plethora of marital discord
evidence was introduced at trial, Drach points to the testi-
mony of Lana Christensen, Carol Taylor, Janet Meyers,
Marvelle Darough, Marvelle Sosa, and Dora Hermosillo as
the hearsay witnesses in his K.S.A. 60-1507 motion. We
summarized this evidence in the direct appeal as follows:
“Approximately 2 months before her death,
Deanne went to St. Catherine’s Hospital in Gar-
den City. Deanne was inebriated, barefoot, not
App. 16
wearing her broken glasses, and her hair was in
disarray. Drach was arrested for domestic bat-
tery. Deanne told Family Crisis Services workers
[Christensen & Taylor] who testified at trial, that
Drach had threatened i:er life. They also testified
that Deanne had related to them that Drach had
often beat her over the years and had repeatedly
threatened her life over an affair that she had
over 25 years previous. Deanne also reported to
the workers that she had suffered broken ribs
and arms over the years. Deanne further told the
workers that she had been shot in the shoulder
by Drach on a previous occasion. The workers ob-
served a scar on Deanne’s shoulder. Deanne told
the workers that Drach had forbid her from seek-
ing medical attention for most of these injuries.
“Deanne related the same facts to a coun-
selor in Dodge City [Hermosillo] who testified at
trial. The counselor testified that Deanne had
told her about times when Drach hit her in the
face, stomach, and arms.
“Approximately 1 month before her death,
Deanne was admitted to St. Joseph’s Hospital in
Wichita. A doctor [Meyers] testified that he no-
ticed scars about her face and arms. Deanne told
him that Drach had caused the scars.” 268 Kan.
at 648.
Additionally, Dr. Meyers referred Deanne to Marvelle
Darrough, a therapist who testified at trial that she had
learned of the spousal abuse while working with Deanne.
Deanne described horrific beatings, being repeatedly
threatened with a gun, and being burned with an iron.
Darrough diagnosed her with battered woman syndrome
with trauma syndrome. Marvelle Sosa, an addictions
counselor with the hospital, testified that she remembered
App. 17
Deanne because she had endured a lot of “awesome”
spousal abuse.
In the direct appeal, Drach argued that evidence of
Deanne’s statements about spousal abuse she had suffered
at the hands of Drach constituted inadmissible hearsay
and prior bad acts. We found that although the trial court
had admitted the evidence on the grounds of res gestae,
Kansas courts had consistently admitted evidence of
marital discord even though it may fall under the tradi-
tional notion of hearsay or prior bad acts. We further noted
that hearsay statements made by a deceased spouse
declarant are admissible as evidence of marital discord if
the trial court finds that the statements have particular
guarantees of trustworthiness under Roberts. Finally, we
found that the question of whether the admission of the
evidence as res gestae violated the Confrontation Clause
was moot because the evidence was admissible under the
marital discord exception. 268 Kan. at 650-51.
In his K.S.A. 60-1507 motion, Drach argued the mari-
tal discord testimony presented by the above six witnesses
admitted at trial was inadmissible hearsay which violated
the Confrontation Clause under both Roberts and Craw-
ford. The 60-1507 court ruled in relevant part:
“7. The fifth issue raised was the claim that the
hearsay evidence presented by the six listed wit-
nesses should not have been presented under the
guidelines set out in Crawford v. Washington,
541 U.S. [36], 158 L. Ed. 2d 177, 124 S. Ct. [1354
(2004)]. The hearsay nature of the testimony was
dealt with on direct appeal to the Supreme Court
of Kansas and found to be acceptable as set out
in that opinion. That opinion was not appealed
further.
App. 18
“9. Where Mrs. Drach is unable to take the
stand and be cross-examined, supposedly be-
cause she was dead at the hands of Roger Drach,
such an equitable forfeiture of the Confrontation
Clause is found to be proper. Under that evalua-
tion, the reliance on the Crawford case would not
be justified.
“2. The hearsay nature of the testimony of Lana
Christensen, Carol Taylor, Janet Meyers, Mar-
velle Darough, Marvelle Sosa and Dora Her-
mosillo was raised on direct appeal and the
Supreme Court of Kansas found that such testi-
mony was proper. The objection on hearsay tes-
timony is by its nature, an objection on the basis
of the right to confront one’s accuser. To that ex-
tent, the Court finds that res judicata should ap-
ply to this argument. If the Supreme Court
chooses to use the petition under K.S.A. 60-1507
as the vehicle to reverse itself, this Court feels it
has the power to do so. Until then, this Court
rules that the application must fail due to the
fact that it has already been ruled on.
“3. The State argues that Mr. Drach failed to
preserve the Confrontation Clause as a basis for
the original appeal. This Court disagrees and
rules that the issue was originally preserved and
ruled on by the Supreme Court.
“4. The State further argues that Crawford
should not be applied retroactively. This Court
agrees that it should not, and that based upon
Brown v. Uphoff, 381 F.3d 1219 (1st Cir. N.H.)
August 19, 2004, and other reasoned authority,
the decision of Crawford should NOT be retroac-
tively applied.
—<___—
App. 19
“5. The Crawford case applies only to evidence
that is testimonial in nature. Under the defini-
tions as applied in Evans v. Luebbers, 371 F.3d
438 (8th Cir. MO) June 10, 2004, the testimony of
the [six] witnesses complained of by Mr. Drach
would not be deemed testimonial in nature and
therefore not excluded under the ruling of the
Crawford case.”
Discussion
“The Sixth Amendment to the United States Constitu-
tion provides that in all criminal prosecutions, the accused
shall enjoy the right to be confronted with the witnesses
against him or her. This constitutional provision does not
preclude the admission of all out-of-court statements. In
determining the admissibility of hearsay exceptions, the
court must also consider the requirements of the Confron-
tation Clause of the United States Constitution. The
Confrontation Clause can operate to bar the admission of
evidence that would otherwise be admissible under an
exception to the hearsay rule if confrontation require-
ments are not met.” State v. Lackey, 280 Kan. 190, Syl.
{ 1, 120 P.3d 332 (2005), cert. denied 126 S. Ct. 1653, 164
L. Ed. 2d 399 (2006).
At the time of trial in this case, a Confrontation
Clause analysis was based on the United States Supreme
Court’s decision in Roberts. This court described the
Roberts analysis in State v. Bailey, 263 Kan. 685, 692-93,
952 P.2d 1289 (1998) (quoting Bratt, 250 Kan. 264, Syl.
q 1, 824 P.2d 983 [1992]):
“*The Confrontation Clause operates in two
ways when determining the admissibility of
hearsay statements. First, the Sixth Amendment
establishes a rule of necessity. In the usual case,
App. 20
the prosecution must either produce or demon-
strate the unavailability of the declarant whose
statement it wishes to use against the defendant.
Second, once a witness is shown to be unavail-
able, the witness’ statement is admissible only if
it bears adequate indicia ei reliability. Reliability
can be inferred where the evidence falls within a
firmly rooted hearsay exception. If the evidence
does not fall within a firmly rooted hearsay excep-
tion, the evidence must be excluded absent a
showing of particularized guarantees of trustwor-
thiness.’ (Emphasis added.)” 263 Kan. at 692-93.
However, after the direct appeal in this case, the
United States Supreme Court in Crawford substantially
altered the Confrontation Clause analysis expressed in
Bailey and Roberts. See State v. Meeks, 277 Kan. 609, 613-
14, 88 P.3d 789 (2004). In Crawford, the Court drew
distinctions between testimonial and nontestimonial
hearsay evidence, holding:
“Where nontestimonial hearsay is at issue, it
is wholly consistent with the Framers’ |constitu-
tional] design to afford the States flexibility in
their development of hearsay law — as does Rob-
erts, and as would an approach that exempted
such statements from Confrontation Clause scru-
tiny altogether. Where testimonial evidence is at
issue, however, the Sixth Amendment demands
what the common law required: unavailability
and a prior opportunity for cross-examination.
We leave for another day any effort to spell out a
comprehensive definition of ‘testimenial.’ What-
ever else the term covers, it applies at a mini-
mum to prior testimony at a _ preliminary
hearing, before a grand jury, or at a formal trial;
and to police interrogations.” 541 U.S. at 68.
App. 21
Drach argues on appeal that the marital discord
evidence should not have been admitted as res gestae or
under the judicially created marital discord exception. He
contends the admission of this hearsay evidence violated
his rights under the Confrontation Clause under both
Roberts and Crawford. The State offers several alternative
arguments in response: (1) res judicata applies as this
argument was raised on direct appeal; (2) Crawford is not
retroactively applied in collateral appeals; (3) the marital
discord testimony was not testimonial under Crawford; (4)
Drach has forfeited his right to confrontation by killing the
victim; (5) the erroneous admission of this evidence under
Crawford was harmless error. The State’s first two argu-
ments resolve this case, although we consider them in
reverse order.
Retroactivity of Crawford v. Washington
As discussed above, the United States Supreme Court
concluded in Crawford that Roberts should no longer be
used when conducting a Confrontation Clause analysis
concerning testimonial hearsay. While the Kansas appel-
late courts have applied Crawford to cases pending on
direct appeal, we have yet to consider whether it applies to
collateral proceedings. See e.g., State v. Corbett, 281 Kan.,
130 P.3d 1179 (2006) (applying Crawford on direct appeal);
Payton v. State, No, 92,435, unpublished opinion filed
December 9, 2005, rev. denied 281 Kan. (May 10, 2006)
(panel did not reach retroactivity of Crawford where
conviction would be upheld regardless of whether Craw-
ford applied).
The State argues that Crawford does not apply
retroactively to collateral proceedings. Contrary to Drach’s
App. 22
assertions on appeal, the 60-1507 court in this case agreed
with the State: “The State further argues that Crawford
should not be applied retroactively. This Court agrees that
it should not, and that based upon Brown v. Uphoff; 381
F.3d 1219 (({10th Cir.]) August 19, 2004, and other rea-
soned authority, the decision of Crawford should NOT be
retroactively applied.”
In Gaudina v. State, 278 Kan. 103, 105, 92 P.3d 574
(2004), we set forth the following analysis to be used in
determining whether a change in the Jaw should be
applied retroactively in collateral proceedings:
“Kansas appellate courts have applied a three-
step analysis for determining whether a change in
the law should be applied retroactively in a crimi-
nal case under collateral attack. First, the court
must determine whether the movant has properly
raised the issue in his or her collateral attack. Su-
preme Court Rule 183(c) limits the issues that may
be raised in a collateral attack.... Second, the
court determines whether the case was final when
the new law was established. .. . If a case was final
when the new law was established, the general
rule is that the new law will not be applied to cases
on collateral attack. [Citation omitted.] Third, if
the case was final before the new law was estab-
lished, the court must determine whether any ex-
ception to the general rule against retroactive
application applies.”
In this case, the question of whether Crawford applies
retroactively is properly brought in a K.S.A. 60-1507
motion and the Crawford opinion filed in 2004 was clearly
decided well after the direct appeal was final in 2000. As
such, we turn our attention to whether any exception to
the general rule against retroactive application applies.
Ape. 23
“Under Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d
334, 109 S. Ct. 1060 (1989), a new rule of constitutional
criminal procedure is not applied retroactively on collat-
eral review unless (1) it places certain kinds of primary,
private individual conduct beyond the power of the crimi-
nal law-making authority to prosecute, or (2) it is a water-
shed rule requiring the observance of those procedures
that are implicit in the concept of ordered liberty.” Whisler
v. State, 272 Kan. 864, Syl. 7 1, 36 P.3d 290 (2001), cert.
denied 535 U.S. 1066, 122 S. Ct. 1936, 152 L. Ed. 2d 841
(2002).
In this case, Drach’s argument focuses on whether
Crawford should be applied retroactively under the second
Teague exception.
In Schriro v. Summerlin, 542 U.S. 348, 352, 159
L. Ed. 2d 442, 124 S. Ct. 2519 (2004), the United States
Supreme Court further provided:
“New rules of procedure, on the other hand,
generally do not apply retroactively. They do not
produce a class of persons convicted of conduct
the law does not make criminal, but merely raise
the possibility that someone convicted with use
of the invalidated procedure might have been ac-
quitted otherwise. Because of this more specula-
tive connection to innocence, we give retroactive
effect to only a small set of ‘“watershed rules of
criminal procedure” implicating the fundamental
fairness and accuracy of the criminal proceeding.’
Saffle, supra, at 495 (quoting Teague, 489 US.,
at 311 (plurality opinion)). That a new procedural
rule is ‘fundamental’ in some abstract sense is not
enough; the rule must be one ‘without which the
likelihood of an accurate conviction is seriously
diminished.’ Id., at 313 (emphasis added). This
App. 24
class of rules is extremely narrow, and ‘it is
unlikely that any ... “ha|s] yet to emerge.’” Tyler
v. Cain, 533 U.S. 656, 667, n.7 121 S. Ct. 2478,
150 L. Ed. 2d 632 (2001) (quoting Sawyer v.
Smith, 497 U.S. 227, 243, 110 S. Ct. 2822, 111
L. Ed. 2d 193 (1990)).” (Emphasis added.)
The United States Supreme Court has thus estab-
lished a strict standard for whether a new rule meets the
second Teague exception; the emphasized statements
above in Summerlin suggests that it does not consider the
previously decided Crawford decision to fall within this
exception. Nevertheless, in Bockting v. Bayer, 399 F.3d
1010 (9th Cir. 2005), the sole case relied upon by Drach,
the Ninth Circuit applied Summerlin and concluded that
Crawford was retroactive, reasoning in part:
“Thus, at the heart of the Court’s concerns in
Crawford was the reliability of admitted evi-
dence. Where admitted evidence is unreliable,
the accuracy of convictions is seriously under-
mined. That the rule in Crawford is one without
which the accuracy of convictions would be seri-
ously undermined is further born out by the
Court’s own description of its prior doctrine as a
‘rare case’ of ‘fundamental failure.’ Jd, at 1373.
The difference between pre- and post-Crawford
Confrontation Clause jurisprudence is not the
sort of change that can be dismissed as merely
incremental. Instead, it is an ‘absolute pre-
requisite to fundamental fairness.’ Sawyer, 497
U.S. at 244.” Bockting, 399 F.3d at 1018-19.
In contrast, the great weight of the authority that has
considered Teague and/or Summerlin has concluded that
Crawford is not retroactive to collateral appeals. In Brown
v. Uphoff, 381 F.3d 1219, 1226-27 (10th Cir. 2004), the
Tenth Circuit found:
App. 25
“Whether the rule of Crawford should be ret-
roactively applied, therefore, depends on whether
it meets one of the two exceptions articulated by
the Court in Teague. Clearly, the first exception
does not apply because Crawford does not place
private conduct beyond the power of law-making
authority to proscribe. We must examine then
whether Crawford set forth a ‘watershed rule’ of
criminal procedure. As we have noted before, this
exception is narrowly defined. Johnson uv.
McKune, 288 F.3d 1187, 1197-98 (10th Cir. 2002).
‘To qualify as a ‘watershed’ rule of criminal pro-
cedure, the rule must not only improve the accu-
racy with which defendants are convicted or
acquitted, but also alter our understanding of the
bedrock procedural elements essential to the
fairness of a proceeding.’ Mora, 293 F.3d at 1218-
19 (quotation omitted). We conclude that the rule
in Crawford does not meet this definition.
“It is true that in Crawford the Court referred
to the protections of the Confrontation Clause as a
‘bedrock procedural guarantee,’ Crawford, 541
U.S. at 42, 124 8S. Ct. at 1359, but that comment
does not necessarily suggest that the rule set forth
in Crawford is ‘on the magnitude of the rule an-
nounced in Gideon v. Wainwright’ as it must be to
fit within the Teague exception. See Mora, 293
F.3d at 1219. Unlike Gideon, Crawford does not
‘alter [] our understanding of what constitutes ba-
sic due process, Mora, 293 F.3d at 1219, but
merely sets out new standards for the admission
of certain kinds of hearsay. Confrontation Clause
violations are subject to harmless error analysis
and thus may be excused depending on the state
of the evidence at trial. Crespin v. New Mexico,
144 F.3d 641, 649 (1998). It would, therefore, be
difficult to conclude that the rule in Crawford
App. 26
alters rights fundamental to due prccess. See
Mora, 293 F.3d at 1219 (holding that Apprendi v.
New Jersey did not alter fundamental due process
rights, in part because Apprendi errors could be
excused given overwhelming evidence). Accord-
ingly, we conclude that Crawford is not a water-
shed decision and is, therefore, not retroactively
applicable to Brown’s initial habeas petition.”
Several other circuits have rejected the argument that
the accuracy of the convictions is seriously diminished by
the failure to apply Crawford. For example, in Mungo uv.
Duncan, 393 F.3d 327, 335-36 (2d Cir. 2004), the Second
Circuit held:
“Assuming that Crawford announced a new
rule, the question of its retroactivity turns, for our
purposes, on whether the rule is necessary to the
fundamental fairness, and improves the accuracy,
of criminal proceedings. Teague, 489 U.S. at 311-14,
109 S. Ct. 1060. We do not believe that Crawford
necessarily improves the overall accuracy of the
criminal process. As we see the operation of the
Crawford rule, it is likely to improve accuracy in
some circumstances and diminish it in others. To
the extent that Crawford requires the exclusion of
unreliable hearsay that would have been admitted
under the prior law, it is likely to improve accuracy.
As the Crawford Court noted, courts applying Rob-
erts were required to make ‘amorphous’ determina-
tions whether hearsay statements’ bore
‘particularized guarantees of trustworthiness,’ and
inevitably received unreliable evidence on that ba-
sis on some occasions. Crawford, 124 S.Ct. at
1370-72. Further, as Judge Weinstein observed be-
low, not all hearsay statements that fit within
firmly established exceptions to the hearsay rule
are necessarily reliable. Mungo, 277 F. Supp. 2d at
App. 27
184-85. Because Crawford bars the admission of
testimonial statements that would have been coun-
tenanced by the old rules, and because some such
evidence is unreliable, Crawford will in those in-
stances improve the accuracy of the process.
“At the same time, however, Crawford also
precludes admission of highly reliable testimonial
out-of-court statements that would have been ad-
missible under the old rules. In such instances, ju-
ries will be deprived of highly reliable evidence of
guilt, and cases that otherwise would have resulted
in well-deserved convictions will now result in ac-
quittals or hung juries. We recognize that Craw-
ford’s rule derives from the principle that cross-
examination is a better engine of truth-
determination than a judge’s assessment of the re-
liability of uncross-examined hearsay. Crawford,
124 S. Ct. at 1370. We do not question this princi-
ple. But it does not necessarily follow that the
Crawford rule will improve the accuracy of the
process. For the requirement of cross-examination
will, in cases where the declarant is not available
to be called for cross-examination, simply result in
the exclusion of the testimony altogether. Where
the testimony was admissible under the old rules
precisely because it was reliable, these applications
of Crawford will diminish, rather than increase,
the accuracy of the process.
“(T]he advent of the Crawford rule brings
about substantial changes in the protection given
by the Confrontation Clause to an accused from re-
ceipt of uncross-examined statements. In some in-
stances those changes will likely improve the
accuracy of the fact-finding process; in others they
will likely impair the accuracy of the fact-finding
process. Because Teague’s test of a watershed rule
requires improvement in the accuracy of the trial
App. 28
process overall, we conclude that Crawford is not a
watershed rule.”
Likewise in Lave v. Dretke, 444 F.3d 333 (5th Cir.
2006), the Fifth Circuit found the rule announced in
Crawford does not implicate the fundamental fairness and
accuracy of criminal proceedings reasoning:
“Lave’s argument [that the Crawford rule im-
proves the accuracy of criminal proceedings be-
cause it excludes custodial statements by alleged
accomplices unless the defendant has had a prior
opportunity to cross-examine that alleged accom-
plice], however, does not show that the Roberts re-
gime ‘so seriously diminishe[d] accuracy that there
[was] an impermissibly large risk of punishing
conduct the law does not reach.’ Summerlin, 542
US. at 355-56, 124 S. Ct. 2519 (internal quotations
and citations omitted). Out-of-court testimonial
statements were not indiscriminately presented to
juries under the Roberts regime. Indeed, they were
inadmissible unless they bore adequate ‘indicia of
reliability.’ Roberts, 448 U.S. at 66, 100 S. Ct. 2531.
Because only those statements that were deemed
reliable could be admitted under Roberts, the fact
that the class of statements as a whole is suspect
does not demonstrate that Roberts created an im-
permissible risk of false conviction.
“By its own terms, Crawford does not pur-
port to announce a rule that increases the reli-
ability of trial testimony. The opinion states, ‘the
[Confrontation] Clause’s ultimate goal is to en-
sure reliability of evidence, but it is a procedural
rather than a substantive guarantee. It com-
mands, not that evidence be reliable, but that re-
liability be assessed in a particular manner: by
testing in the crucible of cross-examination.’ 541
U.S. at 61, 1248S. Ct. 1354.
App. 29
“As other circuits have held, the rule an-
nounced in Crawford does not assure greater ac-
curacy because it bars admission of a statement
to which it applies even when the statement is
highly reliable. ...
“The rule announced in Crawford does not
implicate the fundamental fairness and accuracy
of criminal proceedings. While it may implicate
the core of the confrontation right, it is not a rule
without which there is an impermissibly high
risk of false conviction.” 444 F.3d at 335-36.
Additionally, the First, Sixth, Seventh, Eighth, and
Eleventh Circuits have also either held or suggested that
Crawford should not be applied retroactively. See Espy v.
Massac, 443 F.3d 1362, 1367 (11th Cir. 2006) (“Although
the rule announced in Crawford also impacts the accuracy
of criminal convictions, it does not qualify as a ‘watershed’
rule in the mold of Gideon. Crawford merely altered the
existing regime outlined by White, 502 U.S. at 355-56, 112
S. Ct. at 742-43, and Roberts, 448 U.S. at 65, 100 S. Ct. at
2539.”); Murillo v. Frank, 402 F.3d 786, 790-91 (7th Cir.
2005) (“The point of Crawford is not that only live testi-
mony is reliable, but that the sixth amendment gives the
accused a right to insist on live testimony, whether that
demand promotes or frustrates accuracy. ... This is not an
indispensable innocence-protecting decision that must be
applied retroactively to criminal prosecutions that have
already been finally resolved on direct review.”); Dorchy v.
Jones, 398 F.3d 783, 788 (6th Cir. 2005) (“Under most
circumstances, however, newly promulgated rules of
criminal procedure do not apply retroactively to cases on
collateral review.... Teague thus prohibits Dorchy from
availing himself of the new rule articulated in Crawford.”);
Evans v. Luebbers, 371 F.3d 438, 444 (8th Cir. 2004)
(“|T]he Crawford Court did not suggest that this doctrine
App. 30
would apply retroactively and the doctrine itself does not
appear to fall within either of the two narrow exceptions to
Teague v. Lane’s non-retroactivity doctrine.”); McGonagle
vu. United States, 137 Fed. Appx. 373, 380 (1st Cir. 2005)
(unpublished opinion) (“It is doubtful that Crawford
applies retroactively to cases on collateral review.”).
For a number of reasons, we agree with the majority
of the circuit courts which have considered this issue.
First, the general rule is that a new law established after
a case is final will not be applied to cases on collateral
attack. Gaudina, 278 Kan. at 1095. Second, we view the
United States Supreme Court’s statement in Summerlin
after Crawford was decided as strongly suggesting that
the Crawford decision does not fall under the second
Teague exception: “This class of rules is extremely narrow,
and ‘it is unlikely that any ... “hals] yet to emerge.’”
[Citations omitted.]” (Emphasis added.) 542 U.S. at 352.
Third, the United States Supreme Court has repeat-
edly declined invitations to treat one or another decision as
a “watershed rule.” For example, Summerlin, 542 U.S. 348,
124 S. Ct. 2519, 159 L. Ed. 2d 442, holds that Apprendi v.
New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.
2348 (2000), is not retroactive on collateral attack, and we
agree with the Seventh Circuit’s observation that Apprendi
is “surely a more sweeping change than Crawford (and
more important to defendants, too, because it entitles them
to a jury decision, while Crawford affects only what evi-
dence the jury hears).” Murillo v. Frank, 402 F.3d 786, 790
(7th Cir. 2005). We have likewise found that Apprendi is not
a watershed rule of criminal procedure that implicates the
fundamental fairness of trial. See Whisler, 272 Kan. at 879.
Finally, the above case law persuasively demonstrates
that Crawford is not a watershed rule of criminal procedure
App. 31
implicating the fundamental fairness and accuracy of the
criminal proceeding. Although the Ninth Circuit ques-
tioned the reliability and accuracy of the conviction prior
to Crawford, the other circuits persuasively point out that
reliability of the evidence in either Roberts or Crawford is
simply tested in different ways, i.e., by a finding that the
evidence bore an “adequate indicia of reliability” or by
opportunity for cross-examination. While application of
Crawford may improve the accuracy of convictions in some
instances by providing the opportunity to cross-examine a
witness, Crawford might diminish the accuracy of a
conviction in the case where evidence is highly reliable but
excluded because it was not subject to cross-examination.
For all of the above reasons, we conclude that Crawford’s
new rule is not a watershed rule entitled to retroactive
application. Thus, Drach’s remaining arguments applying
the Crawford analysis are moot.
Res Judicata/Roberts
As Crawford is not retroactively applicable to Drach’s
case on collateral review, Drach alternatively argues that
the marita] discord evidence in this case was inadmissible
hearsay. He contends the admission of this evidence as
either res gestae or under the judicially created marital
discord hearsay exception violated the Confrontation
Clause under the law in effect at the time of trial, Ohio v.
Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597.
In this 60-1507 motion, Drach raises the exact same
issue that was resolved by this court on his direct appeal.
On direct appeal, Drach raised the following issue:
“Drach argues [in his direct appeal] that
evidence of his prior bad acts was erroneously
App. 32
admitted at trial. This evidence consisted of
statements Deanne made to others about beat-
ings she had suffered at the hands of Drach and
also testimony from others who saw bruises and
cuts on Deanne. Drach argues that Deanne’s
statements were inadmissible hearsay and that
the other testimony was inadmissible evidence of
prior bad acts.” 268 Kan. at 648.
We rejected his argument, reasoning:
“Although the trial court admitted the evi-
dence on the basis of res gestae, the evidence was
admissible on other independent grounds. Kan-
sas courts have consistently allowed evidence of
‘marital discord’ in cases similar to this. Evidence
of marital discord can include several types of
evidence: Oral and written statements made by
the deceased spouse relating their abuse; evi-
dence of scarring, bruising, bleeding, and other
physical manifestations of the abuse; testimony
by others who saw the couple fighting, arguing, or
otherwise in conflict; and statements by the de-
fendant relating that he or she will kill his or her
spouse. This testimony may fall under the tradi-
tional notion of hearsay or evidence of prior bad
acts, yet still be admitted.” 268 Kan. at 648-49.
After citing numerous marital discord cases which
allowed marital discord evidence independent of the “prior
bad acts” exclusion or a “hearsay” exclusion, we concluded:
“Hearsay statements made by a deceased
spouse-declarant are admissible as evidence of
marital discord if the trial court finds that the
statements have particular guarantees of trust-
worthiness. See Ohio v. Roberts, 448 U.S. 56, 65
L. Ed. 2d 597, 100 S. Ct. 2531 (1980).
App. 33
“Drach argues res gestae evidence is viola-
tive of the Confrontation Clause of the United
States Constitution. The evidence complained of
is admissible under the marital discord excep-
tion. Drach’s argument under this issue is moot.
The evidence was admissible, and the trial court
did not abuse its discretion in allowing the evi-
dence of marital discord.” 268 Kan. at 651.
Based upon our resolution of this issue on Drach’s
direct appeal, the State argues that the doctrine of res
judicata applies to the same issue Drach now raises in his
60-1507 motion:
“Under Kansas law, where an appeal is
taken from the sentence imposed and/or a convic-
tion, the judgment of the reviewing court is res
judicata as to all issues actually raised, and
those issues that could have been presented, but
were not presented, are deemed waived. Where a
defendant’s claim has not been raised at trial or
on direct appeal, such a default prevents the de-
fendant from raising the claim in a second appeal
or a collateral proceeding.” State v. Neer, 247
Kan. 137, 140-41, 795 P.2d 362 (1990).
Drach does not dispute that the issue of whether the
hearsay was improper under Roberts was decided by the
court on direct appeal. Rather, Drach seeks to have this
court revisit the issue by suggesting in his brief that the
“law of the case” doctrine rather than res judicata should
apply: Under this doctrine, issues already decided by this
Court on appeal “should not be relitigated or reconsidered
unless [they are] clearly erroneous or would cause mani-
fest injustice.” State v. Collier, 263 Kan. 629, Syl. | 3, 952
P.2d 1326 (1998). Drach argues that this court’s decision
App. 34
on direct appeal was clearly erroneous and imposed a
manifest injustice on him.
The problem with Drach’s argument is that he omits a
critical portion of the “law of the case” doctrine in his
argument:
“When a second appeal is brought to this
court in the same case, the first decision is the
settled law of the case on all questions involved
in the first appeal, and reconsideration will not
normally be given to such questions. Ordinarily,
under the law of the case doctrine, once an issue
is decided by the court, it should not be reliti-
gated or reconsidered unless it is clearly errone-
ous or would cause manifest injustice.”
(Emphasis added.) Collier, 263 Kan. 629, 952
P.2d 1326. Syl. J 3.
See also Jn re Cullen, No, 91,735, unpublished opinion
filed December 17, 2004 (law of the case doctrine not
applicable to same issues raised in the second separate
case).
The law of the case doctrine is thus inapplicable to
this case where the appeal stems from a K_S.A. 60-1507
civil proceeding, which is a separate case from the crimi-
nal proceedings considered by this court on direct appeal
in 2000. Drach raised virtually identical arguments in his
direct appeal, and he has not shown why any of his new
arguments concerning hearsay or Roberts could not have
been raised on direct appeal. See Supreme Court Rule
183(c)(3) (2005 Kan. Ct. R. Annot. 228) (a K.S.A. 60-1507
motion cannot be used as a substitute for a second appeal,
absent a showing the trial error affected constitutional
rights and a showing of exceptional circumstances). In
fact, Justice Six referenced the marital discord exemption
App. 35
law review article in his concurring opinion that Drach
now relies upon in his hearsay argument in this appeal.
268 Kan. at 651-52. Although Drach now claims that the
district court never found on the record that the state-
ments carried with them a particularized degree of trust-
worthiness under Roberts, the trial court is presumed to
have made all necessary factual findings to support its
judgment in the absence of an objection to inadequate
findings. State v. Combs, 280 Kan. 45, 50, 118 P.3d 1259
(2005).
Conclusion
We conclude that the factual underpinnings of the
district court’s decision are supported by substantial
competent evidence. Based upon our independent appel-
late review of the district court’s denial of Drach’s K.S.A.
60-1507 motion, we further conclude that the order of
denial was legally correct and supported by the district
court’s factual findings. We therefore affirm the decision of
the district court. Our decision renders Drach’s remaining
arguments moot.
Affirmed.
App. 36
IN THE DISTRICT COURT
OF FINNEY COUNTY, KANSAS
ROGER DRACH PLAINTIFF
-VS- CASE 04CV152
LOUIS BRUCE AND DEFENDANTS
STATE OF KANSAS
DECISION DENYING K.S.A.60-1507 CASE
(Filed Nov. 15, 2004)
NOW ON THIS 22ND DAY OF OCTOBER, 2004, the
above matter is before the Court for an evidentiary hear-
ing. Plaintiff appears in person and with Dennis Owens.
Max Estes appears to introduce Mr. Owens to the Court.
The Defendants appear through Lois Malin, Assistant
Finney County Attorney.
The Court rules that the Motion of the Plaintiff to
amend his petition to add issues under the Supreme Court
case of Crawford vs. Washington, should be allowed over
the objection of the Defendants. After opening statements,
witnesses were called in the persons of Roger Drach, Rick
Marquez and John Lindner. After hearing the evidence,
listening to the argument of counsel, and taking into
account the limited and relevant portions of the record of
96Cr421 out of Finney County, the Court finds and rules
as follows:
1. That the Plaintiff cites 5 reasons that the Court
should find that the Plaintiff (Defendant in the
Criminal Case), was subject to ineffective assistance
of counsel.
3.
App. 37
In evaluating ineffective assistance of counsel, the
test to be applied by the Court is reflected in Sanders
v. State, 26 Kan App. 2nd, 826, 828. “A convicted de-
fendant’s claim that counsel’s assistance was so defec-
tive as to require reversai of a conviction requires that
the defendant show, first, that counsel’s performance
was deficient and second that the deficient perform-
ance prejudiced the defense so as to deprive the defen-
dant of a fair trial.” (Quoting St. v. Brown, 266 Kan.
563 and Chamberlain v. State, 236 Kan. 650.)
The first claim of the Plaintiff is that he was not
informed of his right to make the decision to testify or
not, during the trial. The evidence is overwhelming
that he was told on numerous times that it was his
decision and he chose not to testify.
A. During the Arraignment, the Journal Entry and
the statement of Defense Counsel both confirm
that Mr. Drach was told that “He has the right to
testify, but only if he/she so desires.”
B. Both defense counsel confirmed that Mr. Drach
was told of his right to make the decision and
that both stated that it was his decision, after
consulting with his attorneys that he would not
do so.
C. That at the conclusion of the defense’s case, the
Court inquired of the Defendant, Mr. Drach, as
follows:
“The Court: Mr. Drach, do you understand that
you have the Fifth Amendment privilege against
self-incrimination, and that’s your decision alone
whether you wish to testify. And you’ve made
that decision; is that correct sir?”
“Roger Drach: Yes, sir.”
“The Court: and it’s your desire, then not to tes-
tify in this matter?”
App. 38
“Roger Drach: Yes, sir.” (Page 101, Transcript
of Trial, XVI)
The second issue raised on the question of ineffective
assistance of Counsel is a claim that the Defense at-
torney, failed to object to the prejudicial hearsay of
Lana Christensen that reported the comment of the
deceased that “Roger shot me before.” The attorney
for the state pointed out that this comment was the
subject of a Motion in Limine prior to the trial and
that during the start of this witness’s testimony, an
objection was lodged that was continuing in nature
that renewed the objection as ruled on in the Motion.
This allegation appears to not be bourne out by the
facts in the official record.
The third issue raised was on a claim that Defense
Counsel failed to propose a lesser included offense in-
struction to first degree murder. The Plaintiff failed
completely to support this claim by any assertion of
fact, including any reference to the record, and the
Court must hold that this allegation is unsupported
and therefore denied.
The fourth issue raised was in the failure of Defense
Counsel to call Leah Kathman to bolster the position
of the Defense in the criminal trial that the marriage
of the deceased and Roger Drach, was on solid footing
and mutually supportive. No evidence was presented
that the testimwny of Ms Kathman would add signifi-
cantly to anytheng the other 12 witnesses called at
trial and such tral strategy was not shown to be
prejudicial tc the outcome of the case. With 98 poten-
tial witnesses, obviously some decisions were neces-
sary to limit the testimony to just those witnesses
important to present the defense’s theory of the case.
The fifth issue raised was the claim that the hearsay
evidence presented by the six listed witnesses should
not have been presented under the guidelines set out
10.
11.
App. 39
in Crawford vs. Washington, 541 U.S.__, 158 L Ed 2d
177, 124 S Ct.__. The hearsay nature of the testi-
mony was dealt with on direct appeal to the Supreme
Court of Kansas and found to be acceptable as set out
in that opinion. That opinion was not appealed fur-
ther.
The U.S. Supreme Court notes on page 199 of the
Lawyers Edition report of the case, that: “In this re-
spect, it is very different from exceptions to the Con-
frontation Clause that make no claim to be a
surrogate means of assessing reliability. For example,
the rule of forfeiture by wrongdoing (which we accept)
extinguishes confrontation claims on essentially equi-
table grounds; it does not purport to be an alternative
means of determining reliability. . . .”
Where Mrs. Drach is unable to take the stand and be
cross-examined, supposedly because she was dead at
the hands of Roger Drach, such an equitable forfei-
ture of the Confrontation Clause is found to be proper.
Under that evaluation, the reliance on the Crawford
case would not be justified.
Attorney for the State has submitted with the Court’s
permission a proposed list of findings of fact and con-
clusions of law. For purpose of expanding and ruling
on the issue raised by the case of Crawford vs. State
of Washington, 124 S.Ct. 1354 (2004), the Court
adopts those additional proposed findings of fact as
set out in the “State’s Proposed Finding of Facts and
Conclusions of Law” filed on October 29, 2004 and
listed 1 through 18.
That in addressing the proposed Conclusions of Law
suggested by the State, the Court rules as follows:
1. That in his filing on November 5, 2004, the
Amended Motion Attacking Sentence suffi-
ciently sets out the basis for a request for re-
lief under K.S.A. 50 [sic]-1507 and the Court
App. 40
does have Jurisdiction to deal with the mat-
ter. The Court notes the objection of the
State to the Amended Motion which added
the Crawford case argument.
The hearsay nature of the testimony of Lana
Christensen, Carol Taylor, Janet Meyers,
Marvelle Darough, Marvelle Soza and Dora
Hermosillo was raised on direct appeal and
the Supreme Court of Kansas found that
such testimony was proper. The objection on
hearsay testimony is by its nature, an objec-
tion on the basis of the right to Confront
one’s accuser. To that extent, the Court finds
that res judicata should apply to this argu-
ment. If the Supreme Court chooses to use
the petition under K.S.A. 60-1507 as the ve-
hicle to reverse itself, this Court feels it has
the power to do so. Until then, this Court
rules that the application must fail do [sic]
to the fact that it has already been ruled on.
The State argues that the Mr. Drach failed
to preserve the Confrontation Clause as a
basis for the original appeal. This Court
disagrees and rules that the issue was
originally preserved and ruled on by the
Supreme Court.
The State further argues that Crawford
should not be applied retroactively. This
Court agrees that it should not, and that
based upon Brown vs. Uphoff, 381 F.3d 1219
(1st Cir. (N.H.) August 19, 2004, and other
reasoned authority, the decision of Crawford
should NOT be retroactively applied.
The Crawford case applies only to evidence
that is testimonial in nature. Under the
definitions as applied in Evans vs. Luebbers,
App. 41
371 F.3d 438 (8th Cir. (Mo) June 10, 2004,
the testimony of the 6 witnesses complained
of by Mr. Drach would not be deemed testi-
monial in nature and therefore not excluded
under the ruling of the Crawford case.
In light of the above, it appears that the fifth claim for
relief under the basis set out in Crawford, must by [sic]
denied and that the facts of case of State vs. Roger Drach
do not justify a Court ORDER for Habeas Corpus relief.
The Petition is denied and this Case is dismissed.
SUCH IS THE ORDER OF THIS COURT.
/s/ Michael Quint
Michael Quint, District Judge
Copy mailed to Lois Malin, Dennis Owens this 15th day of
November, 2004.
App. 42
STATE OF KANSAS, Appellee, v.
ROGER DRACH, Appellant.
No. 80,691
SUPREME COURT OF KANSAS
268 Kan. 636; 1 P.3d 864; 2000 Kan. LEXIS 46
March 10, 2000, Opinion Filed
SUBSEQUENT HISTORY: As Modified April 18, 2000.
Second Modification May 18, 2000.
PRIOR HISTORY: Appeal from Finney district court;
CHARLES E. WORDEN, judge.
DISPOSITION: Affirmed.
SYLLABUS: SYLLABUS BY THE COURT
1. ‘nm prosecutions for homicide a deceased’s declarations
or threats indicating a suicidal disposition, if made within
a reasonable time before his or her death, are not within
the hearsay rule and are admissible unless the facts
preclude the possibility of suicide.
2. When a trial court has made findings of fact and
conclusions of law, the function of an appellate court is to
determine whether the findings are supported by substan-
tial competent evidence and whether the findings are
sufficient to support the trial court’s conclusions of law.
3. The authority of an attorney begins with his or her
retainer; but the relation of attorney and client is not
dependent on the payment of a fee or a formal contract.
The contract may be implied from the conduct of the
parties. The employment is sufficiently established when
it is shown that the advice and assistance of the attorney
are sought and received in matters pertinent to his or her
profession.
App. 43
4. The fact that a lawyer has once served a client does
not preclude the lawyer from using generally known
information about that client when later representing
another client.
5. Rebuttal evidence is limited to issues placed in conflict
by the adverse party. The use and extent of rebuttal rests
in the sound discretion of the trial court, and its rulings
will not be reversed unless it appears the discretion has
been abused to a party’s prejudice.
6. Great deference is given to a trial court’s determina-
tion of the admissibility of evidence. Generally, appellate
review on questions of admissibility of evidence is gov-
erned by an abuse of discretion standard of review. Judi-
cial discretion is abused when judicial action is arbitrary,
fanciful, or unreasonable.
7. Kansas courts have consistently allowed evidence of
marital discord in cases involving marital homicide.
Evidence of marital discord can include several types of
evidence: Oral and written statements made by the
deceased spouse relating their abuse; evidence of scarring,
bruising, bleeding, and other physical manifestations of
the abuse; testimony by others who saw the couple fight-
ing, arguing, or otherwise in conflict; and statements by
the defendant relating that he or she will kill his or her
spouse. This testimony may fall under the traditional
notion of hearsay or evidence of prior bad acts, yet still be
admitted.
COUNSEL: Jack Focht, of Foulston & Siefkin L.L.P., of
Wichita, argued the cause, and Richard L. Marquez, of
Lindner & Marquez, of Garden City, was with him on the
brief for appellant.
App. 44
Lois K. Malin, assistant county attorney, argued the cause,
and John P. Wheeler, Jr., county attorney, and Carla J.
Stovall, attorney general, were with her on the brief for
appellee.
JUDGES: The opinion of the court was delivered by
ABBOTT, J. SIX, J., concurring.
OPINION BY: ABBOTT
OPINION:
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by the defendant,
Roger Drach, from his convictions for first-degree murder,
aggravated battery, and criminal use of weapons. Drach’s
wife Deanne was the victim. Drach was sentenced to a
minimum term of 25 years in prison.
Drach appeals, raising five issues. Drach argues the
trial court erred when (1) it would not allow a board-
certified psychiatrist to testify that a note found in the
house was a suicide note; (2) it failed to find the assistant
county attorney had a conflict of interest; (3) it allowed
Karen Althaus to testify as a rebuttal witness for the
State; (4) it admitted testimony of Drach’s prior bad acts;
and (5) it violated the Confrontation Clause of the United
States Constitution by admitting res gestae evidence.
Deanne died on August 19, 1994, as a result of a
gunshot wound to the chest. This case was not commenced
until nearly 2 years after her death. The main issue at
trial was whether Deanne had committed suicide or had
been murdered by Drach.
App. 45
Drach claimed Deanne committed suicide, that he was
not in the room when she was shot, and that he found her
on the bed after he heard the shot. The State’s expert
witnesses testified the wound could not have been self-
inflicted. Drach’s expert witnesses testified they were
99.5% certain the wound was self-inflicted.
Drach does not challenge the sufficiency of the evi-
dence. Thus, we need not review the evidence. We will set
forth the facts of this case, however, as necessary in
discussing the issues.
We take time to comment that Drach’s statement of
facts is not keyed to the record in many instances and
when keyed it is a general cite such as pages 8-107, 149-
180, 56-106, 3-39, 20-74, 5-123, 6-164, etc. By rule, we are
allowed to assume there is no evidence in the record to
support that part of the case that is not properly keyed to
the record. Supreme Court Rule 6.02(d) (1999 Kan. Ct. R.
Annot. 33).
After review of the extensive record (18 volumes, the
longest of which is 291 pages), two relevant facts emerged:
Deanne had an affair 28 years before her death, and she
had been abused since her husband discovered the affair
shortly after it occurred.
At trial, there was much hearsay evidence of abuse
suffered throughout the 34-year-marriage, none of which
is pinned down by time or date.
When Deanne’s body was examined at the scene, she
was on the bed in the southeast corner of the room. The
gun that was used to shoot her was in the northwest
corner of the room. The gun was a derringer. Both parties’
experts testified the bullet had been fired from the top
App. 46
barrel. Yet, the top barrel had a live round with a dented °
primer in it and an empty cartridge in the bottom cham-
ber.
Both old and new blood stains consistent with
Deanne’s blood were found throughout the house, in
Deanne’s purse, in her clothing, and in Drach’s car, which
would indicate Deanne had been abused for a long period
of time.
When Deanne’s body was examined, she was lying in
fresh blood but had dried blood on her arms and back. She
had a 2.5 centimeter laceration on the back of her head
that went to the bone, two black eyes, a laceration above
the right eye, and bruises all over her body. X-rays re-
vealed new fractures of the 9th, 10th, and 11th ribs.
Two autopsies revealed old fractures of the 7th, 10th,
11th, and 12th ribs on the right side; a healing fracture of
the left ulna; a fracture of the right arm that had recently
been refractured; and a gunshot wound to the left arm.
Drach gave accounts of what happened that did not
appear to be accurate. For example, in discussing a broken
window, Drach said he had to break into the house be-
cause he did not have his key. Law enforcement officers
testified the window was broken from the inside out.
Drach testified that Deanne had facial bruises when he
checked her out of the hospital. Three witnesses testified,
however, that Deanne had no visible marks on her when
they last saw her, including the discharging nurse at the
hospital.
Drach also said he thought Deanne was drinking
again when she died. The autopsy report showed her blood
alcohol concentration was .000. Drach also told officers
App. 47
Deanne got her gun out of her car the day she was shot.
Her car was in storage at Dodge City at all pertinent times
and had been for some time.
I. WRITING
During trial, Drach sought to place Dr. Tim McBath, a
board-certified psychiatrist, on the stand to give his
opinion that a writing found on the dryer in the Drachs’
home afier Deanne’s death was a suicide note. Outside the
presence of the jury, the trial judge heard testimony
offered by Drach to determine if Dr. McBath’s testimony
was admissible under the Frye test.
Dr. McBath testified he was frequently called upon to
examine writings to determine if they were suicide notes
(if the writer says he or she is going to commit suicide, it is
classified as a suicide note), and to determine if the note is
a cry for help or a person who is planning to commit
suicide. In about one-half of the writings, Dr. McBath does
not have the opportunity to examine or talk to the author
of the writing. He also had reviewed hospital and medical
records where Deanne had expressed a wish for death and
had suicidal thoughts.
The trial judge thought it was a Frye issue and made
a preliminary ruling that Drach had not shown a basis for
his opinion as generally acceptable as reliable within the
expert’s particular scientific field. The trial judge was
influenced by the fact that Dr. McBath stated that he had
never testified in court as to his opinion whether a writing
was a suicide note, whether the author of the writing was
serious or merely calling for help, and he did not know of
any dectes who had.
App. 48
The trial judge then held that Dr. McBath’s testimony
would not be admitted in the absence of some evidence
establishing that “scientific evidence is accepted in his
area, that it has been admissible and received in other
courts.” The trial judge left the door open for additional
evidence or citations. None were forthcoming.
Numerous courts have ruled on suicide notes and
suicide threats. In Powell v. Commonwealth of Kentucky,
554 S.W.2d 386 (Ky. 1977), the court held:
“When suicide is the theory of defense the decedent’s
previous threats or attempts to kill himself are admissible
for the same reason. As this court said in Marcum uv.
Commonwealth, 308 Ky. 740, 215 S.W.2d 846, 847 (1948),
‘the great weight of authority is to the effect that in
prosecutions for homicide the deceased’s declarations or
threats indicating a suicidal disposition, if made within a
reasonable time before his death, are not within the
hearsay rule and are admissible unless the facts preclude
the possibility of suicide.’ See Wigmore on Evidence (2d
ed.), § 143, and annotation at 83 A.L.R. 434.”
See IA Wigmore on Evidence §§ 143 and 144 (2d ed.
1983); Ott v. State, 160 Ala. 29, 49 So. 810 (1909); State v.
Kelly, 77 Conn. 266, 58 A. 705 (1904); Nordgren v. People,
211 Ill. 425, 71 N.E. 1042 (1904); Hall v. State, 132 Ind.
317, 31 N.E. 536 (1892); State v. Meyer, 180 Iowa 210, 163
N.W. 244 (1917); State v. Beeson, 155 Iowa, 355, 136 N.W.
317 (1912); State v. Cater, 100 Iowa, 501, 69 N.W. 880
(1897); Epperson v. Commonwealth, 227 Ky. 404, 13 S.W.2d
247 (1929); State uv. Ilgenfritz, 263 Mo. 615, 173 S.W. 1041
(1915); Sharp v. State, 115 Neb. 737, 214 N.W. 643 (1927);
People v. Gehmele, 1 Sheld. 251 (N.Y. 1871); State v. Prytle,
191 N.C. 698, 132 S.E. 785 (1926); Blackburn v. State, 23
App. 49
Ohio St. 146 (1872); Crow v. State, 89 Tex. Crim. 149, 230
S.W. 148 (1921).
A clear majority and nearly all cited jurisdictions hold
that evidence of suicide is admissible as tending to show
the decedent’s state of mind. Aithough these cases do not
address the exact issue raised in the present case, they do
indicate that evidence of a suicide theory can be admitted
and that the jury is capable of determining its validity and
attaching the proper weight.
There are also courts which have allowed testimony
from experts who have read the suicide note and deter-
mined the “insanity” of the decedent in an insurance
context. See Garmon v. General American Life Ins. Co.,
624 S.W.2d 42, 45-46 (Mo. App. 1981) (affirming trial
court’s admission of testimony by expert who determined
based upon a reading of the suicide note that decedent was
insane at time of his death); Friedeman v. State, 215 Neb.
413, 339 N.W.2d 67 (1983) (holding expert could testify as
to decedent’s state of mind after examining language used
in suicide note); and Brooks v. Travelers Insurance Com-
pany, 515 S.W.2d 821, 823-24 (Mo. App. 1974) (holding
expert could testify that decedent was sane at time he
wrote suicide note and took his life).
Experts can be used to testify whether a decedent
committed suicide if they testify regarding whether a
wound is self-inflicted. These types of cases are abundant.
See, e.g., People v. Cole, 47 Cal. 2d 99, 301 P.2d 854 (1956)
(allowing expert pathologist to testify whether victim shot
herself after performing an autopsy on her, while noting
that a number of jurisdictions allow evidence as to
whether a wound could have been self-inflicted); State v.
Mattatal!l, 603 A.2d 1098 (R.I. 1992) (holding trial court
App. 50
did not err when it admitted testimony of assistant medi-
cal examiner who stated that, based on autopsy and
investigation of scene of death, decedent died by act of
homicide and not self-inflicted injury); and State v.
Richardson, 158 Vt. 635, 603 A.2d 378 (1992) (allowing
medical examiner to testify that victim died by homicide
and not by suicide).
Here, the writing is described in a number of places in
the record as being 12 pages in length. There is also an
indication it may be two pages in length. The writing was
introduced at trial, so it was read by the trial judge and
jury. It is not, however, a part of the record on appeal.
A paragraph of the writing was read to the jury which
stated:
“I’m sorry that it has come to this, Roger. Everyone
was so glad to hear we were back together and could go on
with our lives. Since we were ... [unreadable portion] ...
but were really thrilled. You believed everything except
me. I’m sorry you feel like I’m doing nothing but lying to
you, but what I’ve told you is true. I can understand your
feelings because of all the interference and lies by David
and Dora, but I’m not lying to you. I do love you and really
thought things had a chance with us when we left Wichita,
but that was only wishful thinking. I’m sorry for this
Roger, but I meant it when I said I’m scared. How many
times have you said, just die and I wish you were dead?
I’m a pretty low and Goddamned person, but if I grant the
only wish you've asked of me, maybe at least you can get
on with your life.”
The above writing was part of a notebook. Drach was
free to present the suicide defense to the jury and did so. It
is impossible to have a meaningful review of this limited
App. 51
issue without having all of the writing. Based on the
record before us, Drach did not meet his burden of proof,
and we cannot say reversible error occurred on this issue.
II. CONFLICT OF INTEREST
Drach claims that Robert Johnson, the assistant
county attorney prosecuting this case as second-chair, was
privy to confidential information significant to this case
and that this created an inherent conflict of interest
worthy of disqualification. Drach claims that he only
became aware of the conflict when Althaus was called to
testify on rebuttal. Drach had not remembered his in-
volvement with Johnson until then. Drach made a motion
for a mistrial when Karen Althaus was called to the stand
to testify. He also moved for a new trial, arguing that
Johnson should have: been disqualified from second-
chairing the case. Specifically, Drach claims that Johnson
violated Kansas Rule of Professional Conduct (KRPC) 1.9
(1999 Kan. Ct. R. Annot. 329). The rule states:
“RULE 1.9 Conflict of Interest: Former Client
“A lawyer who has formerly represented a client in a
matter shall not thereafter:
(a) represent another person in the same or a sub-
stantially related matter in which that person’s interests
are materially adverse to the interests of the former client
unless the former client consents after consultation; or
(b) use information relating to the representation to
the disadvantage of the former client except as Rule 1.6 or
Rule 3.3 would permit or require with respect to a client or
when the information has become generally known.”
App. 52
In Lansing-Delaware Water District v. Oak Lane Park,
Inc., 248 Kan. 563, 572, 808 P.2d 1369 (1991), we set forth
the standard of review in attorney disqualification matters
and stated:
“When the trial court has made findings of fact and
conclusions of law, the function of an appellate court is to
determine whether the findings are supported by substan-
tial competent evidence and whether the findings are
sufficient to support the trial court’s conclusions of law.”
Our review of conclusions of law is unlimited. Gilles-
pie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
In disqualification matters which involve KRPC 1.9,
the burden of proof is on the party alleging the violation.
Chrispens v. Coastal Refining & Mkig., Inc., 257 Kan. 745,
756, 897 P.2d 104 (1995); KRPC 1.9 Comment (1999 Kan.
Ct. R. Annot. 329). In this case, the burden of proof is on
Drach to show that a violation of KRPC 1.9 occurred and
that Johnson should have been disqualified from assisting
in the prosecution of the case.
Prior to coming to the Finney county attorney’s office,
Johnson was in private practice. In early 1996, Deb West,
Deanne’s sister, called Johnson seeking representation in
Deanne’s probate case. Johnson agreed to represent West
and filed an answer to a petition to open Deanne’s estate.
The petition was dismissed because it had been improp-
erly filed. Johnson did not perform any more work for
West after the dismissal of the petition. On March 26,
1996, Johnson notified West that he would no longer be
able to represent her in the probate matter as he had
taken a job with the Finney county attorney’s office. The
parties agreed that at no time did Johnson expressly
represent Drach. Drach did, however, speak with Johnson
App. 53
over the phone on two occasions. The first phone call
concerned Drach’s guarantee of West’s attorney fees.
Drach called Johnson a second time to find out why the
retainer was so high. Drach contends that during the
second phone call he provided Johnson with confidential
information which Johnson then used during the trial to
convict Drach. Drach testified that he told Johnson:
“I related to him, because I was pretty upset about
that damn David {[Deanne’s brother who was attempting to
be named executor of the estate], what’s he doing to us
now. I said I’ve got 90-some people that signed papers that
I didn’t ever do anything to my Deanne. And now all at
once, attorneys, attorneys and bills and bills.
“I said, I’ve only had one infraction on my marriage
about 25 years ago in Hutchinson, Kansas when we lived
there. And that’s the only infraction in my entire marriage
that I really did have.
“I said I only had one thing ever happen to me, and I
used the word | think infraction, in my marriage in the 34
years I’ve been married to her, and that was in Hutchin-
son, Kansas. And there’s 90-some people that has been
talked to and they testified or will testify or sign note
papers or whatever, I kind of glanced through, that they
have never saw me hit Deanne, never this Mickey Mouse,
not one bit of it.”
Drach contends that the information relayed in the
phone call to Johnson enabled Johnson to locate Althaus.
Althaus testified at trial on rebuttal that her husband had
an affair with Deanne approximately 25 years ago when
App. 54
the Drachs lived in Hutchinson. Drach alleges that this
testimony was pivotal to his conviction for the death of
Deanne. Johnson testified that he had no recollection of
the substantive content of either of his phone calls with
Drach.
In order for KRPC 1.9 to apply to this case, there must
be a determination that Johnson represented Drach.
Associated Wholesale Grocers, Inc. v. Americold Corp., 266
Kan. 1047, 1053, 975 P.2d 231 (1999). An attorney-client
relationship can either be by express agreement or im-
plied. 266 Kan. at 1053. Johnson expressly represented
West, Drach’s sister-in-law, in the probate proceedings
surrounding Deanne’s death. Although no formal attorney-
client relationship was ever formed between Drach and
Johnson, Drach may have divulged confidential informa-
tion to Johnson during the course of the second phone call.
The information, admittedly, is more than a little vague
and its usefulness questionable. According to Drach’s
testimony, he never revealed anyone’s name to Johnson
who may have been involved in Deanne’s affair, only that
an “infraction” occurred when they lived in Hutchinson.
The question remains whether Drach and Johnson
had an implied attorney-client relationship. In Associated
Wholesale Grocers, Inc., this court recently stated:
“““The authority of an attorney begins with his
retainer; but the relation of attorney and client is not
dependent on the payment of a fee, nor is a formal contract
necessary to create this relationship. The contract may be
implied from conduct of the parties. The employment is
sufficiently established when it is shown that the advice
and assistance of the attorney are sought and received in
matters pertinent to his profession.”’ [Citation omitted.]”
App. 55
266 Kan. at 1053 (quoting 7 Am. Jur. 2d, Attorneys at Law
§ 136).
See also Professional Service Industries, Inc. v. Kim-
brell, 758 F. Supp. 676, 682 (D. Kan. 1991) (noting that an
attorney-client reiationship begins when the client seeks
and receives personal legal advice from an attorney).
Drach did not believe that Johnson was his attorney.
Drach did not call Johnson for the purposes of obtaining
representation. Drach did not seek legal advice from
Johnson. Drach’s only purpose in calling Johnson was to
discuss the retainer that West would be paying to Johnson
in the probate litigation. Drach did not divulge any “confi-
dential” or useful information. Drach testified it was
common knowledge about town that his wife had an affair
while the couple lived in Hutchinson. Drach testified that
the county attorney’s office knew about the affair before he
had divulged the information to Johnson. Althaus called
the county attorney after she read about trial testimony in
a newspaper.
The comment to KRPC 1.9 states that “the fact that a
lawyer has once served a client does not preclude the
lawyer from using generally known information about that
client when later representing another client.” KRPC 1.9,
Comment (1999 Kan. Ct. R. Annot. 329).
We hold that Drach did not meet his burden in prov-
ing that an implied attorney-client relationship existed
with Johnson. Because Drach and Johnson were never in
an express or implied attorney-client relationship, there
can be no violation of KRPC 1.9. Furthermore, even if
Drach and Johnson were in a confidential relationship, the
testimony by Drach reveals that nothing told to Johnson
was confidential.
App. 56
Ill. REBUTTAL EVIDENCE
Rebuttal evidence is limited to issues placed in conflict
by the adverse party. Enlow v. Sears, Roebuck & Co., 249
Kan. 732, 742, 822 P.2d 617 (1991). When determining
whether rebuttal evidence should have been admitted
during trial, our standard of review is an abuse of discre-
tion standard. “The use and extent of rebuttal rests in the
sound discretion of the trial court and its ruling will not be
reversed unless it appears the discretion has been abused
to a party’s prejudice.” State v. Weigel, 228 Kan. 194, Syl.
q 9, 612 P2d 636 (1980). Judicial discretion is abused and
will be overturned by an appellate court only when no
reasonable person would take the view adopied by the
trial court. State v. Stallings, 262 Kan. 721, Syl. 7 6, 942
P.2d 11 (1997).
Althaus’ testimony was used to refute testimony
presented in Drach’s case in chief in which witnesses
stated that they had never seen Drach act in a violent
manner toward Deanne. The State produced Althaus who
testified that she had seen Drach threaten Deanne’s life
and the life of Althaus and her husband some 25 years ago
when they were living in Hutchinson.
This court has consistently held that prosecuting
attorneys are not required to disclose or endorse names of
rebuttal witnesses. State v. Trotter, 245 Kan. 657, 660, 783
P.2d 1271 (1989); State v. Hunter, 241 Kan. 629, 638, 740
P.2d 559 (1987); Talley v. State, 222 Kan. 289, 292, 564
P.2d 504 (1977). Because the purpose of a rebuttal witness
is to refute testimony given in the case in chief, it would be
hard to list rebuttal witnesses in advance, not knowing
exactly what detailed testimony may be elicited during the
case in chief.
App. 57
Drach presented at least 12 witnesses during his case
in chief who testified that they had never seen Drach act
in any violent manner toward Deanne. The trial court
allowed Althaus to testify, finding that her testimony was
warranted to refute Drach’s case in chief and to show that
Drach had previously threatened Deanne’s life and threat-
ened to kill himself. Althaus testified that she and her
husband were good friends of the Drachs and that one
night Drach had come to the Althaus residence at 1 a.m.,
pounding on the door and holding a pistol to Deanne’s
head. Drach insisted that Althaus’ husband admit that he
had an affair with Deanne. Drach held the pistol to
Deanne’s head and made her swear on a Bible that she
only had sex once during the affair. Althaus testified that
Drach hit Deanne several times during this altercation.
Drach threatened to kill Deanne. Drach ordered Deanne to
call her parents, confess her affair, and tell them good-bye.
Drach told his in-liws that if they wanted to see Deanne
alive they would have to get to Hutchinson before 6 a.m.
Despite the fact that Althaus’ testimony may have
surprised Drach, the testimony is admissible, absent a
showing of an abuse of discretion. Drach was aware of his
own past and presumably would have remembered the
significant events to which Althaus testified. Drach’s trial
strategy was to show that he had never been violent
toward Deanne. A reasonable person would assume that
the prosecution would try to refute that testimony. A
minimal amount of questioning by Drach’s attorneys
should have revealed that Drach had previously held
Deanne at gunpoint in the presence of the Althauses, even
though the events occurred years ago. Furthermore, the
record reveals that it was Althaus who contacted the State
and not the other way around. Althaus contacted the
App. 58
county attorney’s office after the trial had begun and after
she had seen an article concerning the trial in the news-
paper. While a 25-year-old occurrence would ordinarily not
be admissible, it is shown this event is a common theme
causing problems throughout this marriage. We cannot
say that the trial court abused its discretion in allowing
Althaus to testify as a rebuttal witness.
Drach also argues that the State should have dis-
closed its intent to put Althaus on the stand pursuant to
Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct.
1194 (1963). The United States Supreme Court in Brady
held that due process rights are violated when the prose-
cution withholds evidence favorable to an accused which is
“material either to guilt or to punishment.” 373 U.S. at 87.
Here, the evidence was not “favorable” and not of an
exculpatory nature; thus, it does not fall within the ambit
of Brady. This argument is without merit.
IV. PRIOR BAD ACTS
Great deference is given to a trial court’s determina-
tion of the admissibility of evidence. Generally, appellate
review on questions of admissibility of evidence is gov-
erned by an abuse of discretion standard of review. State v
Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). Judicial
discretion is abused when judicial action is arbitrary,
fanciful, or unreasonable. If reasonable persons could
differ as to the propriety of the action taken by the trial
court, then it cannot be said that the trial court abused its
discretion. State v. Gardner, 264 Kan. 95, 103-04, 955 P.2d
1199 (1998).
Drach argues that evidence of his prior bad acts was
erroneously admitted at trial. This evidence consisted of
App. 59
statements Deanne made to others about beatings she had
suffered at the hands of Drach and also testimony from
others who saw bruises and cuts on Deanne. Drach argues
that Deanne’s statements were inadmissible hearsay and
that the other testimony was inadmissible evidence of
prior bad acts.
Because Drach’s brief lacks any reference to any
specific testimony complained about concerning this issue,
we must look to the brief submitted by the State for some
assistance. The State’s brief suggests what type of testi-
mony that Drach may be complaining about. Approxi-
mately 2 months before her death, Deanne went to St.
Catherine’s Hospital in Garden City. Deanne was inebri-
ated, barefoot, not wearing her broken glasses, and her
hair was in disarray. Drach was arrested for domestic
battery. Deanne told Family Crisis Services workers, who
testified at trial, that Drach had threatened her life. They
also testified that Deanne had related to them that Drach
had often beat her over the years and had repeatedly
threatened her life over an affair that she had over 25
years previous. Deanne also reported to the workers that
she had suffered broken ribs and arms over the years.
Deanne further told the workers that she had been shot in
the shoulder by Drach on a previous occasion. The workers
observed a scar on Deanne’s shoulder. Deanne told the
workers that Drach had forbid her from seeking medical
attention for most of these injuries.
Deanne related the same facts to a counselor in Dodge
City who testified at trial. The counselor testified that
Deanne had told her about times when Drach hit her in
the face, stomach, and arms.
App. 60
Approximately 1 month before her death, Deanne was
admitted to St. Joseph’s Hospital in Wichita. A doctor
testified that he noticed scars about her face and arms.
Deanne told him that Drach had caused the scars.
Although the trial court admitted the evidence on the
basis of res gestae, the evidence was admissible on other
independent grounds. Kansas courts have consistently
allowed evidence of “marital discord” in cases similar to
this. Evidence of marital discord can include several types
of evidence: Oral and written statements made by the
deceased spouse relating their abuse; evidence of scarring,
bruising, bleeding, and other physical manifestations of
the abuse; testimony by others who saw the couple fight-
ing, arguing, or otherwise in conflict; and statements by
the defendant relating that he or she will kill his or her
spouse. This testimony may fall under the traditional
notion of hearsay or evidence of prior bad acts, yet still be
admitted.
In State v. Hedger, 248 Kan. 815, 811 P.2d 1170 (1991),
the defendant was convicted of killing his wife. On appeal,
the defendant argued that the trial court erred when it
admitted testimony relating prior acts of violence against
his wife. The defendant had been arrested for beating his
wife and kicking her in the face in one instance and had
broken a van window while attempting to get at his wife in
another. Despite the fact that the testimony consisted of
prior bad acts of the defendant, the Hedger court held that
the evidence was admissible and noted that Kansas
appellate courts have “repeatedly held that evidence of a
discordant marital relationship is admissible, independent
of the statute, to show the ongoing relationship between
the parties.” 248 Kan. at 820.
App. 61
In State v. Taylor, 234 Kan. 401, 673 P.2d 1140 (1983),
the defendant objected to the introduction of his deceased
wife’s notebook which contained notes concerning their
marital counseling and relating to how she felt when the
defendant became outraged and angry. The trial court
admitted the notes contained in the notebook. On appeal,
the defendant argued that the evidence should not have
been admitted as it was evidence of prior bad acts in
contravention to K.S.A. 60-455. The Taylor court affirmed
the trial court and noted that evidence of marital discord
is admissisle where a family relationship exists in order to
show a continuing course of conduct between the parties or
to corroborate the testimony of a complaining witness. The
Tayior court stated:
“The rule in Kansas is that in a case of marital homi-
cide, evidence of a discordant marital relationship and a
wife’s fear of her husband’s temper is competent as bear-
ing on the defendant’s motive and intent. The court did not
err in admitting into evidence Shirley Taylor’s letters
which contained statements of marital discord and her
fear of the defendant’s temper since they showed the
relationship of the parties and their conduct in the rela-
tionship.” 234 Kan. at 408.
In State v. Wood, 230 Kan. 477, 638 P.2d 908 (1982),
the defendant attempted to keep out testimony from his
deceased wife’s mother which concerned a _ telephone
conversation that she had with her daughter about 7
hours before her daughter was killed. A neighbor also
testified that he had seen the defendant throw his preg-
nant wife to the ground and drag her into their bedroom
while holding a loaded .22 caliber gun 4 months before her
death. The neighbor testified that the defendant had told
him that he was going to “blow his old lady’s head off”
App. 62
about 2 weeks before she died. All three types of testimony,
the description of prior bad acts, the hearsay, and the
statement by the defendant, were admitted at trial, and
the ruling of the trial court was affirmed on appeal. The
Wood court noted:
“It is the rule in Kansas that in a case of marital
homicide, evidence of a discordant marital relationship,
and of the defendant’s previous ill treatment of his wife,
including his prior threats to kill her, is competent as
bearing on the defendant’s motive and intent. [Citations
omitted.] Clearly, evidence of prior threats showing that.
the defendant had the intent to kill his wife was relevant
on the issue of defendant’s intent as it existed at the time
the homicide occurred. It was admissible independently of
K.S.A. 60-455.” 230 Kan. at 479-80.
For other cases allowing evidence of marital discord,
independent of the “prior bad acts” exclusion or a “hear-
say” exclusion, see State v. Green, 232 Kan. 116, 121, 652
P.2d 697 (1982) (allowing a witness to testify that defen-
dant had thrown a hatchet at his wife and other evidence
of marital altercations while noting that evidence of
marital discord is admissible where used to show defen-
dant’s motive and intent); State v. Fenton, 228 Kan. 658,
667-68, 620 P.2d 813 (1980) (allowing testimony that
deceased had sought court order for protective custody
after defendant had thrown butcher knife at her; allowing
testimony that deceased had told sheriff’s wife that
defendant had threatened her; and allowing testimony of
psychiatrist who related that deceased had told him about
her marital problems); State v. Anicker, 217 Kan. 314, 316,
536 P.2d 1355 (1975) (allowing testimony that relatives
had often seen the deceased with black eyes and bruises
all over her body; testimony that defendant would often
App. 63
lose his temper with deceased; and testimony that defen-
dant had threatened deceased’s life while noting that
“from early times” appellate courts have held evidence of
marital discord is admissible when it has a bearing on
intent of defendant); and State v. Patterson, 200 Kan. 176,
182, 434 P.2d 808 (1967) (allow
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