In re Wright

350 P.3d 1138 (Table)

In the Matter of the Care and Treatment of Larry E. WRIGHT.

110,539.

Court of Appeals of Kansas.

June 12, 2015.

Review Denied October 7, 2015.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.

Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.

MEMORANDUM OPINION

PER CURIAM.

Larry E. Wright was determined by a jury to be a sexually violent predator. On appeal, he raises several claims of ineffective assistance of counsel. After a thorough review of his claims, we find that Wright has failed to establish that his attorney's representation was constitutionally deficient or that, even if it was, it prejudiced his defense. Accordingly, we affirm.

Factual and Procedural History

In 1993, Wright was convicted of indecent liberties with a child, a sexually violent offense. He was set to be released from prison in September 2012.

In July 2012, the State petitioned and asserted that there was probable cause to support the determination that Wright is a sexually violent predator (SVP).

Dr. Jane Kohrs filed a clinical report wherein she diagnosed Wright with pedophilia and a personality disorder with narcissistic, compulsive, and paranoid traits. Dr. Michael Klemens filed a Forensic Evaluation Report wherein he diagnosed Wright with antisocial personality disorder with narcissistic features.

Wright's attorney filed a motion in limine, attempting to have the reports, and the evidence the reports were based on, excluded because they were largely based on hearsay. However, the State filed a notice of its intent to rely on K.S.A.2014 Supp. 59–29a06(c) so that the opinion testimony of its expert witnesses would be admissible despite Wright's argument that the opinions are based on hearsay.

A jury trial was held wherein several witnesses, including two expert witnesses, testified for the State. At the end of the trial, a limiting jury instruction was given by the district court and is as follows:

“Information identified by each expert witness concerning prior incidents involving Mr. Wright was not presented to show that the incident occurred or that the information was accurate. This information is presented to the jury for the limited purpose of showing how the information was used as a basis for the expert's opinion. It should not be considered by any other purpose.”

Wright was found to be a SVP and was committed to the custody of the Secretary of the Department of Aging and Disability Services.

Wright timely appealed and, for the first time, raised issues related to the ineffective assistance of his trial attorney. This court remanded the case to the district court to conduct a hearing consistent with State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), and enter findings and conclusions regarding Wright's allegations of ineffective assistance of counsel.

An evidentiary hearing was held. The district court found that Wright's trial counsel was not ineffective in his performance. Wright filed a motion to reconsider or amend, which was denied.

Wright appeals the result of his Van Cleave hearing.

Analysis

Wright claims in this direct appeal that his trial counsel was ineffective for three reasons. First, he claims trial counsel was ineffective for eliciting from the State's witness a statement that Wright would sexually reoffend “ ‘beyond a reasonable doubt.’ “ Next, he argues that counsel was ineffective for failing to challenge K.S.A.2014 Supp. 59–29a06(c) as a violation of the Equal Protection Clause of the United States Constitution. Finally, he asserts counsel was ineffective for failing to properly address and argue various hearsay issues in the case. After a general review of the right to competent, effective assistance of counsel and our standard of review, we will examine each of Wright's claims.

The right to competent, effective assistance of counsel, in general

Inherent in the constitutional right to counsel is the right to competent, effective assistance of counsel. In re Care & Treatment of Ontiberos, 295 Kan. 10, Syl. ¶¶ 1 –2, 25, 287 P.3d 855 (2012). To establish ineffective assistance of counsel, the defendant must establish (1) that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984) ; Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014). Generally, a claimant must establish both prongs of the test, constitutionally deficient performance and prejudice. But a very narrow exception has been established by the United States Supreme Court generally referred to as the Cronic exception, named after its case of origin, United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Under the Cronic exception, if the claimant can establish that counsel has failed to function as the client's advocate and has entirely failed to subject the prosecution's case to meaningful adversarial testing there is no need to show that the deficient performance resulted in prejudice. 466 U.S. at 659 ; Edgar v. State, 294 Kan. 828, 839–40, 283 P.3d 152 (2012).

Standard of review

A claim alleging ineffective assistance of counsel presents mixed questions of facts and law. Consequently, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of all the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). To establish prejudice, the defendant must show a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different, with a reasonable probability meaning a probability sufficient to undermine confidence in the outcome. Miller, 298 Kan. at 934.

Trial counsel was not ineffective for eliciting from the State's witness a statement that Wright would sexually reoffend “beyond a reasonable doubt. ”

Dr. Kohrs, one of two psychologists to testify for the State, testified that she diagnosed Wright with pedophilia and a personality disorder with narcissistic, compulsive, and paranoid traits. During Dr. Kohrs' cross-examination, Wright's attorney conducted the following dialogue:

“Q. You can't say with any sort of medical certainty that he is more likely or less likely to re-offend as a particular individual, can you?

“A. I say based upon everything that I see in the file his history of offenses, the leakage of sexual behaviors while he's been in the institution, the way he went downhill on parole so quickly, that I would say that he is likely to engage in repeat acts of sexual violence.

“Q. 80% certain? 70% certain? 50% certain?

“A. I don't think this law requires me to say a level of certainty. I just feel confident to say that.

“Q. Can we say it beyond a reasonable doubt?

“A. I would.”

During cross-examination at the Van Cleave hearing, Wright's trial counsel indicated that he asked the line of questioning to Dr. Kohrs to get her to provide a degree of medical certainty that Wright would reoffend, and he was surprised by her answer that Wright would reoffend beyond a reasonable doubt.

Wright asserts that this is one of those rare situations in which the Cronic exception should apply. He contends that questions his attorney asked and the answers given during Dr. Kohrs' cross-examination constituted structural error because his attorney was no longer the State's adversary. This leads Wright to believe that his attorney was ineffective with no need to decide the second prong of whether the error prejudiced Wright. Thus, Wright contends that the determination that he is a SVP should be reversed.

The district court ruled that while the tactical decision to ask an open-ended question did not work in Wright's favor, the exchange itself did not “create ineffective assistance of counsel. Had Kohrs expressed doubt about the likelihood to reoffend this could have been very beneficial to respondent as he had no defense expert to counter with.”

Wright asserts that these three questions—out of a multitude of questions asked by his trial counsel on cross-examination—constituted a break down in the adversarial process, which led to structural error under Cronic. But from the beginning of Dr. Kohrs' cross-examination Wright's trial counsel attempted to establish that Dr. Kohrs was biased because she wrote her report at the State's request. In addition, Wright's trial counsel was able to show that Dr. Kohrs' opinion was based on documents and files of which she had no direct knowledge; thus, she could not guarantee the reliability of the documents and files.

Counsel's performance throughout the trial demonstrates that the adversarial process was not entirely broken down as required to invoke the Cronic exception. These three questions did not result in the trial's loss of “character as a confrontation between adversaries.” See 466 U.S. 656–57. As previously stated, the Cronic exception and resulting presumption of prejudice is rare and only applies when the attorney's failure is complete and only “ ‘if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.’ [Citation omitted.]” Bell v. Cone, 535 U.S. 685, 697, ...