Balbirnie v. State, No. 115,650
| Decision Date | 24 July 2020 |
| Docket Number | No. 115,650 |
| Citation | 468 P.3d 334 |
| Parties | John BALBIRNIE, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued the cause and was on the brief for appellant.
Brandon L. Jones, county attorney, argued the cause, and Stephen A. Hunting, former county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
A jury convicted John Balbirnie of the second-degree murder of Paul Nicholson, who died from a stab wound to the chest. Balbirnie appealed and his conviction was affirmed by the Court of Appeals. State v. Balbirnie, No. 106,849, 2013 WL 3455772 (Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan. 1204 (2014).
Within a year after the mandate issued in Balbirnie's direct appeal, he moved to have his conviction set aside. Balbirnie, who has consistently and repeatedly maintained his innocence, argued his appointed trial counsel ineffectively represented him by failing to admit into evidence a recording of a 911 call in which the caller identified someone other than Balbirnie as the person who stabbed Nicholson.
To establish ineffective assistance of counsel, Balbirnie must show (1) his attorney's performance fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The district court held Balbirnie failed to establish both requirements. The Court of Appeals panel disagreed on the first prong, holding trial counsel's performance fell below an objective standard of reasonableness. But the panel agreed with the district court that Balbirnie had failed to establish the second prong of prejudice. Balbirnie v. State , No. 115,650, 2017 WL 5508140 (Kan. App. 2017) (unpublished opinion). We reverse both the Court of Appeals and the district court and remand for further proceedings.
Balbirnie seeks relief from his conviction through a motion filed under K.S.A. 60-1507. Some facts from Balbirnie's underlying criminal case are required to place his ineffective assistance of counsel claim in context. During the events leading to Nicholson's death, several people were at Tarissa Brown and Phillip Wallace's apartment, including Brown, Wallace, Balbirnie, Nicholson, and Brandon Ellsmore. Wallace and Ellsmore admitted to verbally and physically fighting with Nicholson just before Nicholson's death. Wallace denied using a weapon. Both Wallace and Ellsmore placed Nicholson's death at the hands of Balbirnie, although their accounts of events were inconsistent. Additional facts about the crime will be discussed as we consider the possible prejudice to Balbirnie.
In his 60-1507 motion, Balbirnie claimed his trial counsel was ineffective for many reasons. Balbirnie has preserved only one for our consideration: His claim that his trial counsel should have introduced a recording of a 911 call made by Brown while the fight was ongoing. In Balbirnie's motion, he explained why the call was exculpatory:
After reviewing the motion, the district court appointed new counsel and held an evidentiary hearing. Balbirnie's trial counsel and Balbirnie testified.
Balbirnie's trial counsel testified that Balbirnie maintained his innocence—from the time law enforcement officers interviewed him through the trial, sentencing, and beyond. The defense strategy was to prove Balbirnie was innocent and that Wallace or Ellsmore fatally stabbed Nicholson. Trial counsel acknowledged he received a copy of the 911 call in his discovery materials and reviewed it in preparation for trial. He agreed the call was exculpatory. Balbirnie's counsel expected the State to admit the recording of the 911 call into evidence, but it did not do so. Counsel explained that by the time he realized the State was not going to admit the 911 call, it was impossible to secure subpoenas to establish foundation.
When asked whether he considered establishing the foundation through the 911 caller's testimony, counsel said he thought he had. He later realized he must have forgotten to do so. He testified any failure to question the caller about the recording's authenticity was an oversight and "[i]n no way" a strategic decision. He also testified that had he introduced the 911 call into evidence, he could have presented the jury with a potential suspect other than Balbirnie.
A recording of the call was introduced into evidence at the 60-1507 hearing. On it, Brown identifies Wallace as her fiancé and later can be heard saying, "My fiancé stabbed him and he's laying [sic ] right here."
Following the hearing, the district court denied the motion, finding trial counsel did not perform deficiently and, even if trial counsel were deficient on some basis, Balbirnie had not established prejudice.
Discussing the deficient performance prong of the ineffective counsel test, the district court found "[t]oo many factors were present at trial to now decide that counsel was unreasonable or deficient in not presenting the 911 tape." The court reasoned that trial counsel referenced the 911 call when cross-examining Brown, other witnesses confirmed the same facts about the stabbing, the 911 call is hard to decipher and understand due to Brown's emotional state, and the recording contradicted the assertion in Balbirnie's motion that Brown " ‘clearly indicated Phillip Wallace stabbed Mr. Nicholson in the chest and this wound was the fatal blow.’ " Finally, the district court found one could argue it was trial strategy not to play the audio "given the obvious emotional turmoil the witnesses experienced at the time of the call."
Addressing the prejudice prong, the district court found there was "no reasonable probability that any of the errors complained of by the defendant [were] sufficient enough to undermine confidence in the outcome." The district court reasoned that the evidence at trial included several witnesses who saw Balbirnie stab Nicholson, Balbirnie's own statement admits he was at the scene during the fights, police arrested Balbirnie at the scene, and blood evidence implicated Balbirnie in the altercation. Ultimately, the district court said: "The defendant has not presented sufficient enough evidence to establish that there is a substantial likelihood of a different result in this case."
Balbirnie appealed the denial. The Court of Appeals panel held the evidence did not support the district court's finding that the failure to introduce the 911 call was a strategic decision. The panel noted that Balbirnie's trial counsel testified his actions were not strategy but oversight. Balbirnie , 2017 WL 5508140, at *2. And the panel held the failure to introduce the 911 call fell below an objective standard for reasonably effective representation. The panel reasoned that Balbirnie's defense was that someone else stabbed Nicholson, causing his death. And the call directly supported that defense because Brown identified someone besides Balbirnie as the person who stabbed Nicholson. 2017 WL 5508140, at *2.
But the Court of Appeals panel affirmed the district court's result because it agreed Balbirnie had not established that he was prejudiced by his trial counsel's failure to introduce the 911 call. 2017 WL 5508140, at *2-4. The panel also rejected Balbirnie's other ineffective assistance claims for failing to meet the briefing requirements to raise the claims on appeal. 2017 WL 5508140, at *4-5.
Balbirnie timely petitioned for review, which this court granted. This court's jurisdiction is proper under K.S.A. 20-3018(b) ().
The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel, and denial of the right can lead to reversal of a jury verdict. Courts consider whether a reversible denial of the right occurred by applying a two-prong test stated by the United States Supreme Court in Strickland . A convicted defendant must first establish deficient performance by "show[ing] that counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 687-88, 104 S.Ct. 2052. Then the defendant must show that the deficient performance prejudiced the defense. 466 U.S. at 687, 104 S.Ct. 2052. See State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).
After a full evidentiary hearing about an ineffective assistance of counsel claim under K.S.A. 60-1507, an appellate court reviews a district court's findings of fact and conclusions of law under a mixed standard of review. The appellate court examines the record and determines whether substantial competent evidence supports the district court's factual findings and determines whether the court's factual findings support its conclusions of law. The appellate court then reviews the district court's conclusions of law de novo. 297 Kan. at 669, 304 P.3d 311.
To begin, we note that Balbirnie's petition for review is limited to his ineffective assistance claim based on the 911 call. He makes no challenge to the Court of Appeals' holding that he failed to sufficiently brief his other ineffective assistance of counsel claims. As a result, we will not discuss those other claims. See Supreme Court Rule 8.03(a)(4)(C) (2017 Kan. S. Ct. R. 54) ("The court will not consider issues not presented or fairly included in the petition.").
In raising his trial counsel's failure to introduce into evidence the 911 call, Balbirnie's petition seeking our...
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