Opinion
No. 108,654.
2013-09-27
Jon Paul ULATE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sumner District Court; William R. Mott, Judge. Elizabeth Seale Cateforis, of the Paul E. Wilson Project for Innocence, University of Kansas School of Law, of Lawrence, for appellant. Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.
Appeal from Sumner District Court; William R. Mott, Judge.
Elizabeth Seale Cateforis, of the Paul E. Wilson Project for Innocence, University of Kansas School of Law, of Lawrence, for appellant. Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., GREEN and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
This case is a collateral attack by Jon Paul Ulate upon his conviction of aggravated indecent liberties with a child under 14. He claims his trial attorney was ineffective because counsel failed to secure an expert witness to testify about child interview techniques; counsel failed to object to a witness' qualifications to testify about post-traumatic stress disorder; and counsel inaptly opened a line of inquiry about character evidence to Ulate's detriment. We are not persuaded.
In 2008, the jury found Ulate guilty of one count of aggravated indecent liberties with a child under the age of 14. The court imposed a 71–month prison sentence which he is now serving. Ulate appealed to this court, and a panel affirmed his conviction in 2009. The Supreme Court later denied review. State v. Ulate, 42 Kan.App.2d 971, 219 P.3d 841 (2009), rev. denied 291 Kan. 917 (2010).
We need not repeat the facts of the crime as they are set out fully in the direct appeal. See 42 Kan.App.2d at 974–75.
Ulate filed his present K.S.A. 60–1507 motion in 2011. The district court entertained evidence on the motion and decided that the representation of trial counsel, Christopher Williams, was objectively reasonable on all grounds except one. The court determined Williams was deficient when he opened an otherwise inadmissible area of character evidence. Nevertheless, the court found Williams' performance did not prejudice Ulate's defense.
In this appeal, Ulate argues he was denied his right to effective assistance of trial counsel in three ways. Ulate first claims Williams was ineffective because he failed to procure an expert witness for the defense. Next, he contends that because his lawyer failed to object to a witness' qualifications and testimony, the issue was not preserved for appeal. Finally, Ulate asserts that Williams was ineffective when, through his questions, he “opened the door” that allowed unfavorable character evidence to be admitted against Ulate.
A review of the law is helpful at this point.
The right to effective assistance of counsel arises from the Sixth Amendment to the United States Constitution, which guarantees in “all criminal prosecutions” that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” See Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985) (adopting the standards established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
To support a claim of ineffective assistance of counsel based on counsel's performance, a defendant must demonstrate that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. The benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012).
There are two steps in the ineffective assistance of counsel analysis. Step one requires a defendant to show that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel's performance must be highly deferential. Every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. 294 Kan. at 838.
Step two requires the defendant to establish prejudice by showing there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. 294 Kan. at 838.
When the district court denies a K.S.A. 60–1507 motion after conducting an evidentiary hearing on the motion, as was done in Ulate's case, this court reviews whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the court's conclusions of law. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007). In doing so, this court gives deference to the district court's findings of fact, accepting as true the evidence and any inferences that support or tend to support the court's findings. Ultimately, the district court's conclusions of law and its decision to grant or deny a 60–1507 motion are reviewed using a de novo standard. 285 Kan. at 355.
Speculation on the value of expert testimony does not mean trial counsel was ineffective.
In arguing Williams was ineffective in this regard, Ulate first claims Kansas caselaw has indicated expert testimony for the defense is imperative in sex cases like this, where there is no physical evidence and the testimony of witnesses is critical. Ulate asserts this court has continuously held that defense attorneys in such circumstances need an expert to rebut the testimony of the State's experts, and that defense attorneys “must” consult with an expert. Ulate is stretching the language of the cases beyond reasonable proportions.
The first case cited by Ulate is State v. Gaona, 293 Kan. 930, 939–40, 270 P.3d 1165 (2012). While it is true that an expert indeed testified on behalf of the defense in Gaona, the opinion does not suggest or hold that expert testimony for the defense is necessary in sex cases. Gaona is merely a case in which an expert did, in fact, testify for the defense.
Next, in Mullins v. State, 30 Kan.App.2d 711, 717, 46 P.3d 1222,rev. denied 274 Kan. 1113 (2002), the court indeed held defense counsel was deficient for failing to hire an expert to testify in a sex case. But in that case, at his hearing on the K.S.A. 60–1507 motion, Mullins presented the testimony of two experts who criticized both the State's witnesses at trial and defense counsel's failure to address problems with the State's evidence. When the State cross-examined Mullins' witnesses, the State “shed no new light” on the witnesses' testimony. 30 Kan.App.2d at 714–15. And when Mullins' trial counsel testified he failed to interview the State's witnesses prior to trial and failed to even look into the possibility of hiring experts, the State's cross-examination “revealed little additional information.” 30 Kan.App.2d at 715. Thus, in reversing the district court's denial of Mullins' 60–1507 motion, this court stated it was “compelled” to do so because of the “essentially uncontroverted record at the 1507 hearing.” 30 Kan.App.2d at 718. The Mullins court noted the State “presented no evidence, no witnesses, and did little cross-examination of Mullins' witnesses to provide the trial court any support for determining whether Mullins' trial counsel was effective.” 30 Kan.App.2d at 718. That is very different from this case where several witnesses testified for the State.
At the hearing on his habeas corpus motion, Ulate presented the testimony of Dr. Phillip Esplin to counter the testimony of the State's trial witnesses and to highlight attorney Williams' alleged deficiency in failing to procure an expert for the defense. Dr. Esplin, a forensic psychologist who specializes in issues surrounding child witnesses, testified he believed a defense expert would have assisted in the preparation of Ulate's case.
Dr. Esplin expressed concern about testimony Mary Hotze, a licensed family therapist, provided at trial regarding the relationship between post-traumatic stress disorder and child sex abuse. Dr. Esplin did not believe Hotze made it clear that there is no certain set of symptoms that can lead to a classification of post-traumatic stress disorder or that would allow one to distinguish between a sexually abused child and a child that has not been abused. Dr. Esplin testified it would be “misleading” to suggest that all sexually abused children have stress-related symptoms because this is not the case in a majority of instances. Dr. Esplin opined that Williams' cross-examination on this matter was insufficient. Dr. Esplin testified that “damaged good[s] syndrome” is not a DSM–IV diagnosis and that he could have assisted the defense on this point.
But Dr. Esplin does not appear certain in the record. He concluded a jury could “potentially” have been misled by Hotze's testimony—which he characterized as “potentially persuasive”—and said Ulate could have benefitted from his own expert. However, when asked if the defense was harmed by the absence of its own expert, Dr. Esplin responded he is “not a legal scholar” and that he tries to “stay away from those things.” Also, when asked whether he agreed with Hotze's diagnosis of post-traumatic stress disorder, Dr. Esplin said he did not “disagree or agree.” Dr. Esplin merely said he would have used a different diagnostic procedure to make such a determination. And Dr. Esplin also agreed that some of J.B.'s symptoms, as described, could lead to a classification of post-traumatic stress disorder.
Dr. Esplin also criticized the work of Jane Holzrichter, a social worker who interviewed J.B. He thought she failed to get a good narrative of the instances of abuse and pointed out that she mainly asked direct focus questions—which could have caused J.B. to make a “forced choice” on certain questions. Nevertheless, Dr. Esplin did not believe Holzrichter's interview was “fatally flawed.” Instead, Dr. Esplin merely concluded the interview was insufficient and left unanswered questions.
Finally, Dr. Esplin commented on the interview conducted by Sumner County Detective Frances Stevenson. Dr. Esplin said Det. Stevenson did not get an adequate narrative from J.B. and that she asked “invitationals” and engaged in direct questioning. Dr. Esplin testified that if he had assisted Williams, he would have been able to help him with some of the issues raised—such as helping him know what questions to ask on cross-examination.
In response, the State called Helen Swan, who has specialized knowledge and experience about child abuse and forensic interviewing of children. The Kansas Supreme Court has recognized Swan to be an international expert on these issues. Swan testified Det. Stevenson conducted an adequate interview and that it was clear J.B. was resisting any suggestive questions by Det. Stevenson. Swan opined that Hotze was correct in describing J.B.'s symptoms as consistent with sexually abused children, and said she agreed with Hotze's diagnosis of post-traumatic stress disorder. Swan pointed out that Hotze did not state J.B.'s symptoms were exclusive to children who have been sexually abused, and that Hotze did not testify J.B. had been sexually abused. Swan did not believe the interviewers in this case were suggestive.
Then, Christine Ladner, an Assistant Attorney General who prosecutes child sex crimes in Kansas, testified that in the 45 child sex cases she has prosecuted over the years, she has only seen the defense call an expert to testify regarding child interview techniques on two occasions.
Thus, we do not find Mullins to be persuasive. Here, the State provided ample evidence for the trial court to weigh on these issues, unlike Mullins where the State offered no resistance. Here, the State presented two witnesses to refute Dr. Esplin's testimony. And the testimony provided by these witnesses was certainly compelling. And unlike in Mullins, the State's cross-examination of Dr. Esplin clearly highlighted the weaknesses in his testimony. Dr. Esplin plainly admitted he did not necessarily disagree with Hotze's diagnosis of post-traumatic stress disorder, and he agreed that some of J.B.'s symptoms could lead to a classification of post-traumatic stress disorder.
Turning to the other case Ulate relies upon, State v. Huntley, 39 Kan.App.2d 180, 177 P.3d 1001 (2008), we note this is a case where this court held the district court abused its discretion in denying the defendant's request for a continuance to secure an expert witness on child interview techniques. 39 Kan.App.2d at 189–90. In Huntley, the district court had denied Huntley's request based on its belief that expert testimony by the defense would likely be inadmissible, as the victim's allegations could be adequately challenged on cross-examination and the jurors could simply use common sense in determining whether they believed the victim's story. 39 Kan.App.2d at 182.
The Huntley court concluded the district court's ruling was based on an incorrect statement of the law. The appeals panel noted a trend in recent cases tending to promote the admission of expert testimony for the defense in sex crime cases, particularly where the witness testimony is crucial. 39 Kan.App.2d at 187–88. The court stated,
“[W]e believe the Mullins opinion made it clear that our court believed such testimony could be critical to the defense in such cases. Especially where, as here, the defense was heavily dependent on casting doubt on the reliability of child witnesses, we deem an expert in such matters to be of utmost importance and, when denied, likely prejudicial.” (Emphasis added.) 39 Kan.App.2d at 189.
This case differs from Huntley. The trial court here did not prevent Ulate from securing an expert as the court did in Huntley. Secondly, Huntley did not rule that an expert is a necessity for a sound trial. To the contrary, Huntley states that in some cases testimony by an expert for the defense may be critical and necessary—so that it is prejudicial for a court to outright prevent the defendant from securing such testimony.
We next examine Dr. Esplin's critique of Williams' performance. Basically, Dr. Esplin merely testified he could have aided Williams in his preparation of Ulate's defense and that he could have provided testimony favorable to Ulate. But as noted, the State's witnesses at the 60–1507 hearing countered Dr. Esplin's criticisms of the State's trial witnesses and of Williams' performance. And Dr. Esplin ultimately admitted he did not necessarily disagree with Hotze's diagnosis of post-traumatic stress disorder and her discussion of J.B.'s symptoms. Swan testified that in her opinion Stevenson conducted an adequate interview, Hotze was correct in describing J.B.'s symptoms as consistent with sexually abused children, Hotze's diagnosis of post-traumatic stress disorder was correct, and the interviewers in this case were not suggestive.
Ulate next relies on the lack of physical evidence to bolster his claim that Williams was ineffective. Ulate says there is “no evidence” in this case beyond J.B.'s allegations and Ulate's denials. Ulate suggests that in cases like this, an expert for the defense is necessary.
We are not persuaded by this testimony. When Ulate challenged the sufficiency of the evidence on direct appeal, Ulate similarly claimed J.B.'s testimony was the “only evidence” supporting the guilty verdict. Ulate, 42 Kan.App.2d at 991. In rejecting this claim, this court noted (1) J.B.'s trial testimony was corroborated by Stevenson and Holzrichter; (2) the jury saw a video of Holzrichter's interview with J.B in which J.B. described one of the incidents involving Ulate; (3) J.B.'s mother and father testified about changes in J.B.'s behavior; and (4) Hotze testified that J.B. exhibited characteristics similar to children who had experienced sexual abuse. 42 Kan.App.2d at 992. Clearly, J.B.'s testimony was not the only evidence against Ulate.
In addition, Ulate argues there was a lack of strategy on Williams' part when arguing Williams was ineffective for failing to procure an expert. Ulate notes that at the 60–1507 hearing, Williams admitted he had concerns about Holzrichter's and Stevenson's interviews and the qualifications of the State's witnesses and that he believed J.B. was coached. Yet according to Ulate, Williams made no meaningful attempt to procure an expert. Ulate notes Williams did not complete an evaluation with Jeffrey Lane (an expert Williams contacted) and he did not secure further information from a psychologist friend who failed to provide him with helpful information.
Past decisions guide us. In State v. Lewis, 33 Kan.App.2d 634, 111 P.3d 636,rev. denied 277 Kan. 924 (2003), defense counsel admitted at Lewis' 60–1507 hearing that he consulted with no experts on the issue of child interview techniques. And Lewis presented the testimony of experts who suggested that the victim's interview in that case was not conducted so as to produce reliable and accurate results and that defense counsel's failure to procure an expert was deficient and prejudicial to Lewis. Nevertheless, like here, the State presented testimony by Helen Swan that the interview techniques used in the case were acceptable. The State also presented testimony by an experienced attorney who could not recall a sex case where the defense used an expert witness.
When the court ruled that Lewis' defense counsel was not deficient for failing to procure an expert witness, it pointed to the State's expert testimony at the 60–1507 hearing, along with the fact that the victim testified at trial and was subject to cross-examination—so that the jury was able to compare her testimony to her prior statement and therefore judge her credibility. The Lewis court also noted that at trial, defense counsel elicited testimony from other witnesses that set forth a basis for concluding the victim may have been motivated to make false allegations.
Similarly, here, Williams testified at the 60–1507 hearing that prior to Ulate's trial, he was concerned about whether the State's witnesses were qualified to offer their opinions. Williams stated he did not believe Hotze should have testified and that he wished he would have done more to prevent her from testifying. Williams said he should have obtained an expert to help him rebut the State's witnesses, and that he believed he was ineffective because he lost the case and “could have done more.”
Williams acknowledged that he consulted Jeffrey Lane regarding Ulate's case, but said he did not ultimately retain him because Lane was diagnosed with brain cancer. Williams said he and Lane had some discussions about the case, and Williams suggested they believed J.B. had been coached. However, Williams admitted Lane did not have all the information he would have needed to reach this conclusion. Williams said he also consulted an expert in the Kansas City area regarding Ulate's case, but indicated this expert's opinion was not particularly favorable to Ulate. Williams testified he attempted to challenge the State's witnesses at trial and agreed that some of his objections were overruled, while some of them were sustained. Williams said he conducted some internet research on damaged goods syndrome and went to the University of Kansas Medical School to research medical journals. Williams said he researched both post-traumatic stress disorder and damaged goods syndrome in preparation for Ulate's case.
Williams attempted to cast doubt on J.B.'s allegations through the cross-examination of her mother. Williams also thoroughly cross-examined Det. Stevenson. Through his questioning, Williams suggested Det. Stevenson unfairly focused on Ulate as the perpetrator and improperly advised J.B. she would do everything she could to get Ulate in trouble.
Williams also challenged Hotze's qualifications and the manner in which she interviewed J.B. Williams got Hotze to admit that children can have “false memories”— i.e., memories that do not reflect reality but that are suggested to them. Williams was also able to elicit testimony that cast doubt on J.B.'s mother's testimony. Williams' questioning cast doubt on Hotze's knowledge about sexual abuse reporting. Williams got Hotze to acknowledge she was not telling the jury that sexual abuse actually occurred in this case, but that sexual abuse was merely being alleged. Suffice it to say, Williams' cross-examination of Hotze was thorough and certainly exposed weaknesses in her testimony.
In addition to his vigorous cross-examination of the State's witnesses, Williams also called nine witnesses to testify on Ulate's behalf. Williams' clear tactic was to discredit J.B.'s testimony and her parents' testimony.
Like in Lewis, although Williams indeed chose not to procure an expert witness to testify on Ulate's behalf, Williams used an alternative defense tactic in that he thoroughly cross-examined the State's witnesses. Unlike in Lewis, Williams testified he did conduct research on some of the issues the State's witnesses would testify to ( i.e.,post-traumatic stress disorder and damaged goods syndrome) and he did consult two experts—one of whom provided information unfavorable to Ulate. In these circumstances, this court cannot conclude Williams' lack of a trial strategy rendered his performance ineffective. Instead, the record demonstrates Williams had a reasonable trial strategy that simply failed to work in Ulate's favor. The mere fact that Ulate was convicted does not render Williams' performance ineffective.
In rejecting Ulate's claim that Williams was ineffective for failing to consult and procure an expert witness, the district court made the following findings:
• Where defense counsel has consulted an expert and received an unfavorable opinion, counsel is not required to continue searching for other experts in order to ensure that his or her performance is reasonable. Here, where Williams consulted two experts, Williams plainly conducted an objectively reasonable investigation and sought the assistance of experts—one of whom provided an unfavorable opinion.
• Like in Lewis, Swan testified to the adequacy of the interviews conducted in this case and countered Dr. Esplin's testimony. The State also offered testimony that an experienced prosecutor had not encountered the use of defense experts in the area of child interviewing techniques.
• Williams made it “crystal clear” in his cross-examination of Hotze that Hotze was not telling the jury that sexual abuse occurred at all, let alone by the hand of Ulate. Thus, it is difficult to see how Dr. Esplin's expertise could have made Williams' cross-examination of Hotze significantly more effective.
The record supports each of these findings. We cannot conclude the district court erred in determining Williams' performance was ineffective because he failed secure an expert witness.
Ulate has failed to demonstrate the second part of his ineffective assistance of counsel claim—that he was prejudiced by Williams' performance.
First, Dr. Esplin's testimony was not overly damaging to the State's witnesses and was clearly rebutted by Helen Swan. Dr. Esplin admitted there is a “lot of debate” in the scientific literature and in the courts on the issues raised by Hotze. In essence, Dr. Esplin merely offered a myriad of suggestions that could have been helpful to Ulate's case. But no portion of his testimony suggested the trial was conducted so poorly that one could reasonably conclude the results would have been different but for Williams' failures.
Second, Ulate's chief reason for wanting his own expert to testify was to challenge the qualifications and techniques used by Hotze. Ulate continuously complains about Hotze's testimony regarding post-traumatic stress disorder and damaged goods syndrome. But on direct appeal, when Ulate similarly complained about Hotze's testimony on these issues the court held that any error in admitting Hotze's testimony was harmless. Ulate, 42 Kan.App.2d at 980–81. The panel reasoned the other evidence offered by the State—J.B.'s testimony, Holzrichter's testimony, Det. Stevenson's testimony, J.B.'s parents' testimony, and J.B.'s taped interview—were “substantially consistent and compelling.” 42 Kan.App.2d at 980–81.
To sum up, using hindsight, we can see a potential comparative advantage to Ulate's defense if an expert had testified as suggested by Dr. Esplin. But that does not mean his trial counsel was automatically deficient when he was unable to secure such testimony at trial. The district court was able to weigh this testimony while we cannot. See In re Adoption of Baby Girl P., 291 Kan. 424, 430–31, 242 P.3d 1168 (2010). This is not grounds for relief.
Ulate fails to persuade us that Hotze was not qualified to testify as she did at trial.
Ulate contends he was denied effective assistance of counsel because Williams failed to object to Hotze's testimony in order to preserve the issue for appeal. Ulate says that when Williams objected to Hotze's testimony on the basis that her testimony would require her to comment on J.B.'s credibility, he should have objected to Hotze's qualifications to testify about post-traumatic stress disorder. In arguing Hotze was not qualified to testify, Ulate emphasizes Dr. Esplin's criticisms of Hotze's testimony about post-traumatic stress disorder, damaged goods syndrome, and symptoms of abused children.
Ulate cannot show Williams was deficient for failing to object to Hotze's qualifications because he has not shown Hotze was not qualified to express an opinion on post-traumatic stress disorder. The only evidence Ulate relies upon is Dr. Esplin's testimony. But Helen Swan testified that Hotze was correct in describing J.B.'s alleged symptoms as being consistent with children who have been sexually abused. Swan also testified she did not disagree with Hotze's diagnosis of post-traumatic stress disorder. Ulate has not shown that Hotze was not a qualified witness or that her testimony on post-traumatic stress disorder was flawed.
In addition, on direct appeal, Ulate claimed the district court erred in allowing Hotze to testify that she diagnosed J.B. with post-traumatic stress disorder. The court held Ulate failed to properly preserve an objection to Hotze's qualifications because he failed to lodge a timely objection when Hotze provided her diagnosis. 42 Kan.App.2d at 979–80. Nevertheless, the court opined that even if the issue had been properly preserved, any error in admitting Hotze's testimony would have been harmless:
“In addition to Hotze's testimony regarding her PTSD diagnosis, Hotze also testified about common patterns exhibited by sexually abused children and that J.B. exhibited behavior consistent with a sexually abused child. The State's other evidence at trial consisted of J.B.'s testimony, Holzrichter's testimony regarding her interview of J.B., Stevenson's testimony regarding her interview of J.B., and J.B.'s parents' testimony concerning her behavior before and after Ulate resided in their home. J.B.'s live testimony and her videotaped interview, which was also played at the trial, were substantially consistent and compelling. We conclude that any error in the admission of Hotze's testimony regarding her PTSD diagnosis did not affect the outcome of the trial and did not deny Ulate substantial justice. Therefore, even if this issue had been properly preserved for appeal, any error in the admission of the evidence was harmless.” 42 Kan.App.2d at 980–81.
We will certainly not rule to the contrary when considering a collateral attack on his conviction.
The admission of character evidence was found on direct appeal to be harmless.
In Ulate's final claim, he argues he was denied effective assistance of counsel because Williams opened an otherwise inadmissible area of character evidence while he was questioning J.B .'s father.
When the panel of this court reviewed Ulate's case on direct appeal, it addressed the character evidence issue and found the admission of the evidence harmless. The court said: “[T]he additional evidence that was admitted after the district court ruled the door had been opened was not highly prejudicial to Ulate's case. Any error in the admission of this evidence was harmless considering the totality of the evidence presented at trial.” 42 Kan.App.2d at 989.
Where another panel of this court has already considered the admission of the character evidence on direct appeal and found it to be harmless, we will not rule otherwise when deciding his appeal of the K.S.A. 60–1507 motion.
Having found no prejudicial deficiencies, we summarily reject Ulate's cumulative error argument.
The district court's ruling is affirmed.