Opinion
110,539.
06-12-2015
In the Matter of the Care and Treatment of Larry E. WRIGHT.
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.
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, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ; see, e.g., In re Care & Treatment of Downey, No. 110,474, 2015 WL 249704 (Kan.App.2015) (unpublished opinion) (counsel stipulated to the admission of all of the State's documentary evidence—including hearsay evidence—and to the admission of expert's unfavorable report, agreed to have the court decide whether Downey should be committed without any witness testimony, made no oral argument on Downey's behalf, and did not submit a brief or proposed findings of law on which the court could have based decision to release Downey), rev. denied ––– Kan. –––– (April 29, 2015). Most alleged deficiencies are properly evaluated under Strickland rather than Cronic. See Florida v. Nixon, 543 U.S. 175, 189–90, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (noting that Cronic itself illustrates “just how infrequently” cases will fall into its exception); State v. Adams, 297 Kan. 665, 670–71, 304 P.3d 311 (2013) ( Cronic exception to ineffective assistance of counsel claim is rare, and in most cases the analysis is controlled by Strickland ).
In sum, we agree with the district court that it cannot be said that while Wright's trial counsel may not have known what Dr. Kohrs' answers would be, he had hoped they would be favorable to Wright. In hindsight, it probably would have been best for him not to have asked such questions. However, this small portion of the trial does not rise to the level wherein the exception in Cronic would be applied. The trials court's findings regarding counsel's performance were supported by substantial competent evidence and support its legal conclusion that Wright did not establish that he is entitled to relief based upon ineffective assistance of counsel.
Thus, because the exception to the Strickland prejudice prong in Cronic does not apply, we proceed to review the second prong of the Strickland test and determine if Wright was prejudiced by his trial counsel's potential ineffectiveness and whether Wright showed a reasonable probability that, but for his trial counsel's deficient performance, the outcome of the trial would have been different. See Miller, 298 Kan. at 934.
Even if Wright's trial counsel's performance was deficient, it does not appear that Wright can show that he was prejudiced by the error. In order for the State to prove that Wright should be classified as a SVP, it must prove four things: (1) the individual has been convicted of or charged with a sexually violent offense; (2) the individual suffers from a mental abnormality or personality disorder; (3) the individual is likely to commit repeat acts of sexual violence because of the mental abnormality or the personality disorder; and (4) the individual has serious difficulty controlling his or her dangerous behavior. K.S.A.2014 Supp. 59–29a02(a) ; K.S.A.2014 Supp. 59–29a07(a) ; In re Care & Treatment of Williams, 292 Kan. 96, Syl. ¶¶ 3–4, 253 P.3d 327 (2011).
Through one police officer and two expert witnesses, the State was able to establish all four requirements. The police officer was able to testify about his investigation of Wright regarding Wright's 1993 conviction of indecent liberties with a child, and the State admitted the journal entry of conviction for that crime. Dr. Kohrs testified that Wright suffers from pedophilia and narcissism; that he has a high risk of reoffending and is likely to engage in future acts of sexual violence because of his mental abnormality and his personality disorder; and that he has difficulty controlling his dangerous behavior. Dr. Michael Klemens testified that Wright suffers from antisocial personality disorder with narcissistic features; that he is likely to engage in repeat acts of sexual violence; and that he has difficulty controlling his dangerous behavior.
Based on the State's evidence, Wright has failed to show that there was a reasonable probability that the outcome of his trial would have been different but for his trial counsel's cross-examination of Dr. Kohrs. Therefore, his claim of ineffective assistance of counsel on this basis must fail.
Trial counsel was not ineffective for failing to argue that K.S.A.2014 Supp. 59–29a06(c) violated the Equal Protection Clause of the United States Constitution.
In his brief and before the district court, Wright essentially argues that his counsel represented him ineffectively by never raising an equal protection objection to K.S.A.2014 Supp. 59–29a06(c). The heart of Wright's contention is that the special evidentiary rule embraced by this subsection was enacted specifically to treat SVPs differently than other individuals in other civil commitment proceedings, rendering it constitutionally impermissible. So we begin by examining the Kansas statutes regarding opinion testimony by expert witnesses.
K.S.A.2014 Supp. 59–29a06(c) allows the parties to call expert witnesses in SVP trials. It then goes on to provide:
“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts and data need not be admissible in evidence in order for the opinion or inference to be admitted.”
This is a special rule that was adopted in 2011 and varies from the general provision in the rules of civil procedure governing opinion testimony by expert witnesses. K.S.A. 60–456(b) provides:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
Accordingly, the general rule in all trials, except SVP trials, is that expert opinions may not be presented that are based upon hearsay. See State v. Gonzalez, 282 Kan. 73, 93–94, 145 P.3d 18 (2006). As the Supreme Court pointed out in Gonzalez, K.S.A. 60–456(b) represents a “traditional approach” and “experts' opinions based upon hearsay are not admissible in any court proceedings.” 282 Kan. at 88. The court noted the variance in the Kansas rule and its federal counterpart, Rule 703 of the Federal Rules of Evidence. Rule 703 provides in part:
“ ‘The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.’ “ 282 Kan. at 87.
The federal rule was an attempt to bring judicial practice in line with the common practice of experts, such as physicians, who may make life and death decisions on the basis of hearsay. Under the federal rule, although the witness' opinion may be based on hearsay evidence normally relied upon by experts in the field, the report itself is not admitted as substantive proof the report's truth. Accordingly, “upon request, the opposing party is entitled to a limiting instruction by the trail judge.” Gonzalez, 282 Kan. at 88 (citing Imwinkelried, Evidentiary Foundations § 9.03[4][c] [6th ed.2005] ).
It appears that the adoption of K.S.A.2014 Supp. 59–29a06(c) in 2011 was an attempt to apply something similar to Rule 703 of the Federal Rules of Evidence in SVP cases because the provisions are nearly identical. See In re Care & Treatment of Quary, 50 Kan.App.2d 296, 298–99, 324 P.3d 331 (2014) (listing case in which court has found the two provisions nearly identical), rev. denied 300 Kan. –––– (August 14, 2014). Wright claims that the application of a different rule to SVP trials is in violation of the Equal Protection Clause of the United States Constitution and his attorney was ineffective for not raising such a claim.
Kansas lawyers are expected to understand Kansas law. “While the growth of the law is dependent upon creative lawyers advancing new theories, failure to do so does not render a lawyer's performance constitutionally deficient.” Tomlin v. State 35 Kan.App.2d 398, 404, 130 P.3d 1229, rev. denied 282 Kan. 796 (2006). A claim that K.S.A.2014 Supp. 59–29a06(c) violates the Equal Protection Clause has not been raised or ruled on in any Kansas appellate case, either published or unpublished.
Although counsel concedes that this issue had not been addressed by any Kansas appellate courts, he presented a motion to the district court from one case in Sedgwick County and claims that it shows “that the equal protection issue had been previously raised in SVP cases as early as June, 2012,” albeit by a different attorney and in a different jurisdiction. But Wright does not point us to any reported or unreported appellate case, in any state, where a similar claim has been raised. Accordingly, we must determine if counsel's failure to raise this new legal theory rendered his assistance constitutionally deficient. To do so, we must look at not only whether it was unreasonable for trial counsel not to raise such a novel claim, but also whether the claim would have been successful.
Both the Fourteenth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights § 1 provide equal protection of the laws. Board of Miami County Comm'rs v. Kanza Rail–Trails Conservancy, Inc., 292 Kan. 285, 315, 255 P.3d 1186 (2011). When a statute's constitutionality is challenged on this basis, however, an appellate court must presume the statute's constitutionality and construe it as constitutional if at all possible. Additionally, because the constitutionality of a statute is a question of law, our Kansas appellate courts exercise unlimited review of this issue. 292 Kan. at 315.
Considering whether a statute violates equal protection principles is a three-step analysis. First, the court must determine whether the statute treats “arguably indistinguishable classes of individuals” differently. 292 Kan. at 315. If there is disparate treatment between groups, the court must next determine which level of scrutiny is applied to the statute. Finally, the court must then determine whether the statute at issue withstands the relevant level of scrutiny. 292 Kan. at 316.
Regarding the first step of this analysis, K.S.A.2014 Supp. 59–29a06(c) clearly creates a special evidentiary rule applicable only to SVP proceedings and none of the other civil commitment proceedings. Therefore, the statute appears to treat two similarly situated groups differently. But as this court pointed out in Merryfield v. State, 44 Kan.App.2d 817, 823, 241 P.3d 573 (2010), our Kansas Legislature “recognized that sexually violent predators have special treatment needs and present special risks to society.” Because the legislature determined that SVPs differed “from other civilly committed persons with respect to treatment and risk,” subjecting those individuals “to treatment and confinement conditions different from those of other civilly committed persons” did not violate equal protection principles. 44 Kan.App.2d at 823–24. Like Merryfield, Wright has the burden to establish that there is no difference between the two groups, and he has failed to do so here.
But even if we assume that the statute treats two similarly situated groups differently, Wright's claim still fails when we move on to the second step of the equal protection analysis and determine which level of scrutiny the statute must withstand.
Because “[s]tatus as a sex offender is not a suspect class, like race or national origin,” a law that treats SVPs differently from other individuals “will be constitutional if the classification bears a rational relationship to a legitimate government objective.” Merryfield, 44 Kan.App.2d at 823. This standard, also sometimes called the rational basis or reasonable basis test,
“ ‘is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State's legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ “ Injured Workers of Kansas v. Franklin, 262 Kan. 840, 847, 942 P.2d 591 (1997).
This standard is a very lenient one and is violated only when the classification is completely unrelated to the statute's goal. 262 Kan. at 847–48.
The legislative background for K.S.A.2014 Supp. 59–29a06(c) that Wright himself provides indicates that two reasons were propounded for passing the law: (1) decreasing costs and increasing efficiency, and (2) protecting society by preventing the SVPs' victims from being revictimized by repeatedly presenting the same testimony and by ensuring that SVPs who outlive their victims can remain committed. Clearly, these reasons relate to the overall goal of the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq. , which is “ ‘to address the special needs of sexually violent predators and the risks they present to society’ “ that went unaddressed by the State's other civil commitment procedures. Merryfield, 44 Kan.App.2d at 823. Increasing the efficiency of the KSVPA helps to ensure that potential SVPs progress through the system and are provided with the care and treatment that they require, while preventing SVPs from both (1) revictimizing their victims through repeated testimony and (2) from exiting the SVP program if and when their victims die or otherwise become unavailable. These factors address the risks that SVPs present to society at large, a risk not presented by non-SVP civil commitments.
Because K.S.A.2014 Supp. 59–29a06(c) is rationally related to the overall goal of the KSVPA, the mere fact it treats SVPs differently from other individuals in other court proceedings does not violate the Equal Protection Clause. “Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit.” Baker v. State, 243 Kan. 1, 10, 755 P.2d 493 (1988). Wright's trial counsel neither acted unreasonably nor prejudiced his client's defense by failing to raise this issue because it would have failed. As such, Wright's trial attorney was not ineffective on this basis.
Trial counsel was not ineffective for failing to “properly” object to hearsay evidence.
Wright argues that his trial counsel was ineffective for failing to properly address and argue the hearsay issues. Wright contends that his trial counsel failed to properly object to hearsay evidence and that his motion in limine was insufficient. Wright asserts that the jury was not adequately informed that the hearsay was not offered for the truth of the matter asserted.
Wright correctly points out the danger in allowing hearsay evidence but then making a pro forma statement that it is “not offered for the truth of the matter asserted” while referring to it in such a way that would suggest its importance as substantive evidence. This was pointed out by the panel in Quary as it related to an SVP trial to the court. The trial judge in Quary, in his factual findings, improperly pointed to the supporting documentation relied on by the experts as substantive evidence favoring the commitment of Quary. The panel pointed out that the information upon which an expert relies should only be considered for the purpose of assisting the jury in evaluating the expert's opinion.
“If the foundational information reasonably supports the expert witness' conclusions, the finder of fact may favorably consider those conclusions in deciding the controlling issues. Conversely, should the information fail to logically bolster the expert's reasoning, the finder of fact may discount or discard those opinions as unworthy of belief. In that way, a factfinder may distinguish among experts offering conflicting conclusions by looking at the strength of the underlying information and its reasoned connection to those conclusions.” Quary, 50 Kan.App.2d at 302.
The panel stressed “the subtle difference between the proper use of that material under K.S.A. [2013] Supp. 59–29a06(c) and its impermissible use as substantive evidence.” 50 Kan.App.2d at 306. The panel went on to point out the problem when such evidence is presented to a jury, as it was here, and the importance of the use of a limiting instruction, which was also used here. With those concerns in mind, we examine trial counsel's performance related to his objections to hearsay. Wright raises the issue solely as an ineffectiveness of counsel claim.
First, Wright takes issue with his trial counsel's lack of objection during the State's opening remarks. Wright's trial counsel indicated that he was reluctant to object during opening statements, but he gave no reason as to why he held such a strategy. However, “[o]pening statements in a criminal prosecution are merely to advise the jury as to what it may expect by way of evidence and the questions which will be presented to the jury, and they are not evidence but are merely for the assistance of the jury. [Citation omitted.]” State v. Campbell, 210 Kan. 265, 278–79, 500 P.2d 21 (1972). In addition, Wright's trial counsel filed a detailed, albeit unsuccessful, motion in limine attempting to exclude any hearsay evidence at trial that was contained in the clinical reports. Moreover, at trial, Wright's trial counsel lodged multiple objections to the evidence presented by the State that was based on hearsay. We do not find counsel's performance to be constitutionally deficient for failing to object during opening remarks.
Wright next argues that his trial counsel was ineffective for failing to make sure that the hearsay evidence presented actually supported the clinical reports presented by the expert witnesses. However, Wright's trial counsel did object to the testimony presented and conducted a voir dire examination of one of the witnesses to establish a lack of foundation to some of the evidence admitted. It is unclear what more Wright's trial counsel could have done at the time of the jury trial in order to prevent this evidence from being admitted, unless counsel was required to assert every basis for an objection known within the rules of evidence. Moreover, by contending that “[t]he hearsay objections should have been granted,” Wright is challenging the district court's decision to allow the evidence, which is a trial error issue, not an ineffective assistance of counsel issue.
Wright next addresses several statements made by Dr. Kohrs that he believes were objectionable and argues his trial counsel's failure to object constituted ineffective assistance of counsel. However, the majority of comments addressed by Wright appear to be statements made by Dr. Kohrs that were her expert opinion based on information that she would normally rely on in reaching her opinion as allowed by K.S.A.2014 Supp. 59–29a06(c) and well within her realm of expertise. Statements Wright points to include that “people that have multiple different kinds of sexual preoccupations are more likely to re-offend,” “criminal tendencies predispose the individual, if he has criminal offenses, to commit further sexual offenses,” and “individuals who start treatment and then drop out or don't complete it actually have higher recidivism rates than people that don't start at all.”
Wright does point to numerous instances when hearsay was reported as fact, further highlighting the problems first recognized in Quary and the fine line to be walked in these cases. As one example, Dr. Kohrs testified as to the victim's statement regarding Wright's undisputed sexual crime of conviction. The expert then testified regarding Wright's explanation of the event in her interview with him. Because the two versions did not match, she concluded that Wright was minimizing the incident. In other words, the victim's story was true and Wright's was incomplete. But we are faced with an ineffective assistance of counsel claim and counsel objected regularly and forcefully to attempts to introduce hearsay evidence. Moreover, trial counsel meticulously pointed out, during closing argument, the concept of “garbage in, garbage out.” In other words, the expert opinions relied upon information which was given to them secondhand or thirdhand, information the truth of which could not be determined or considered per the court's limiting instruction. He cautioned the jury about assuming that the information was true. He pointed out the limiting instruction and explained how the information should be weighed in light of the instruction. Accordingly, we cannot find his representation to be constitutionally deficient merely because the trial judge did not sustain his numerous objections.
Wright then moves on to comments made by Dr. Klemens during his testimony. Wright believes that his trial counsel should have objected to this evidence. However, even if Wright's trial counsel had objected, there is no guarantee that the district court would have granted the objection, and based on the record, it is obvious the district court most likely would have overruled the objection given that the district court questioned Wright's trial counsel for raising so many objections on hearsay. Moreover, Wright's assertion regarding Dr. Klemens' testimony would have a similar result as Dr. Kohrs' testimony: Dr. Klemens' testimony was based on hearsay that he would normally rely on when forming his expert opinion on the matter.
Wright also objects to Dr. Klemens' reference to the fact that the sexual predator evaluation he conducted was court ordered by the Attorney General's office and needed to be “conducted on individuals that are being released from prison and have been determined by a probable cause hearing....” Although the State's attorney immediately redirected Dr. Klemens' testimony, Wright argues that this was substantially similar to the testimony in In re Care & Treatment of Foster, 280 Kan. 845, 127 P.3d 277 (2006), and requires reversal. But we find crucial differences between Dr. Klemens' testimony and the statements presented by the State's attorney in Foster. In Foster, in her opening statements the State's attorney went through an outline of the many professionals that have reviewed the alleged SVP before the case even reaches the jury, including reference to a probable cause hearing where the judge has already determined evidence exists to find the person to be a SVP. Our Supreme Court found that
“allowing the State in this KSVPA commitment proceeding to tell the jurors—before it even hears any evidence—that a multidisciplinary team of professionals, a team of prosecutors (including the attorney prosecuting the case), and the judge have all previously determined that sexually violent predator commitment proceedings should proceed against Foster is extremely prejudicial.” 280 Kan. at 861.
Dr. Klemens' isolated statement, immediately redirected by the State's attorney, was significantly different and much less onerous than the statements in Foster. Even though counsel did not object, this court is required to give counsel the benefit of the doubt and to “affirmatively entertain” the range of possible reasons counsel may have had for proceeding as he did. See Cullen v. Pinholster, 563 U.S. ––––, 131 S.Ct. 1388, 1407, 179 L.Ed.2d 557 (2011). Any objection, given the limited nature of the comment, would not have resulted in a mistrial but, more likely, an admonishment to the jury. It would be reasonable trial strategy not to call attention to such an innocuous statement. Accordingly, giving due deference to trial counsel, we cannot find his failure to object as objectively unreasonable.
Wright finally attempts to raise an instructional error issue within his ineffective assistance of counsel issue. He argues that the limiting instruction was insufficient to erase all of the hearsay and inadmissible testimony that was allowed into evidence. Again, this claim is a trial error issue, not an ineffective assistance of counsel issue. Even so, Wright's claim that the instruction was insufficient is not supported by the record or by caselaw. A point raised incidentally in a brief and not argued therein is deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).
In addition, based on the State's evidence as already summarized, Wright has failed to allege or show that even if counsel's performance was deficient, there was a reasonable probability that the outcome of his trial would have been different. Therefore, his claim of ineffective assistance of counsel must fail.
Because there was no error, there can be no cumulative error.
Wright contends that all of the errors he presents invoke the cumulative error doctrine, which requires that a new trial be ordered.
Cumulative error, when considered collectively, may be so great as to require reversal of a criminal conviction. The test is whether the totality of the circumstances establish that a defendant was substantially prejudiced by cumulative errors and was denied a fair trial. But no prejudicial error may be found from this cumulative effect rule if the evidence is overwhelming against the defendant. State v. Carr, 300 Kan. 1, 251, 331 P.3d 544 (2014) ; State v. Lewis, 299 Kan. 828, 858, 326 P.3d 387 (2014).
The court will find no cumulative error when the record fails to support the errors defendant raises on appeal. State v. Betancourt, 299 Kan. 131, 147, 322 P.3d 353 (2014). A single error cannot constitute cumulative error. State v. Williams, 299 Kan. 509, 566, 324 P.3d 1078 (2014).
Because there was no error presented by Wright in his proceedings, the cumulative error doctrine does not apply.
Affirmed.