Khalil-Alsalaami v. State

• Decision Date: 11 September 2020
• Docket Number: No. 115,184,115,184
• Citation: 472 P.3d 60
• Parties: Ziad K. KHALIL-ALSALAAMI, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

472 P.3d 60

Ziad K. KHALIL-ALSALAAMI, Appellant,

v.STATE of Kansas, Appellee.

No. 115,184

Supreme Court of Kansas.

Opinion filed September 11, 2020.

Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and David L. Miller, of the same firm, was with him on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Bethany C. Fields, deputy county attorney, Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

Per Curiam:

This appeal arises from Ziad K. Khalil-Alsalaami's convictions on two counts of aggravated criminal sodomy. He was acquitted on a charge of rape. After trial and an unsuccessful direct appeal, Khalil-Alsalaami filed a K.S.A. 60-1507 motion, alleging ineffective assistance of trial and direct appeal counsel.

District Judge John F. Bosch denied Khalil-Alsalaami's motion, but a panel of our Court of Appeals granted Khalil-Alsalaami relief. We accepted this case on the State's petition for review of the Court of Appeals decision.

We affirm the Court of Appeals result, although we reach it via a different, less complicated route. We reverse Khalil-Alsalaami's convictions and remand his case to the district court for further proceedings because of trial counsel's decision to drop a pretrial challenge to the admissibility of his client's incriminating statements and a later failure to object when a journal entry describing the parties' stipulation to the voluntariness of those statements was admitted at trial.

FACTUAL AND PROCEDURAL BACKGROUND

Khalil-Alsalaami had a party at his house in May 2010. Among the guests was 13-year-old C.J. She had arrived at the party with her boyfriend, John Esquivel; his brother, Robert; and Roger Safford.

According to C.J.'s side of the story, Safford pressured C.J. to have sex with Khalil-Alsalaami in exchange for $40. Khalil-Alsalaami denies that he engaged in any of the sexual acts C.J. described and argues he was tricked into admitting certain of the acts by law enforcement.

Investigation of C.J.'s allegations began after she told her mother of the party about two days after it occurred. The State ultimately charged Khalil-Alsalaami with rape and two counts of aggravated criminal sodomy.

While Khalil-Alsalaami was represented by Stephen Freed, the parties came before District Judge Paul E. Miller for a Jackson v. Denno , 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), hearing on the voluntariness of several incriminating statements Khalil-Alsalaami had made to police detectives during a 45-minute interrogation on the day of his arrest. Khalil-Alsalaami admitted during the interrogation that he had engaged in oral and anal sodomy with C.J.; he did not admit that he had engaged in vaginal intercourse with C.J.

Detective Ryan Runyan testified on behalf of the State at the hearing. He admitted that he knew Khalil-Alsalaami could not read English and that he therefore read a Miranda advisory aloud at the beginning of the interrogation, although he did not do so "word for word." Runyan further testified that Khalil-Alsalaami agreed to speak with the detectives, signed the Miranda rights waiver form, and never asked to stop the interview. In Runyan's view, Khalil-Alsalaami, whose first language is Arabic, could understand what was being said during the interrogation.

Because Freed said he was still trying to secure an expert witness, the defense portion of the Jackson v. Denno hearing was delayed.

Khalil-Alsalaami then retained attorney Barry Clark. Clark, along with Jeremy Platt, would represent Khalil-Alsalaami through the rest of pretrial proceedings, at trial, and on direct appeal.

Rather than complete the Jackson v. Denno hearing, Clark entered into a stipulation with the State that Khalil-Alsalaami's partial confession was knowing and voluntary. The stipulation was memorialized through a journal entry, which read in pertinent part:

"[T]he Defendant stipulates that his statements to law enforcement were knowing and voluntarily given and he was not under any compulsion or no threats or promises were made to him.

"THEREUPON , the Court, after reviewing the file and evidence presented, listening to statements of counsel, and being fully advised in the premises, finds as follows:

"1. The defendant's statements to Detectives Ryan Runyan and Sonia Gregoire were voluntarily given and shall be admitted at trial."

The journal entry was signed by Judge Miller, the prosecutor, and Clark.

The State's case at trial relied upon a videotape and transcript of Khalil-Alsalaami's incriminating statements, on C.J.'s account of events, and on expert testimony about a DNA match between semen found on the inside waistband and drawstring of a pair of shorts worn by C.J. on the night of the party and a known sample collected from Khalil-Alsalaami once he was arrested.

At trial the defense asserted that Khalil-Alsalaami had been tricked into falsely confessing to oral and anal sodomy with C.J. on his bed, because Runyan did not disclose C.J.'s age and minimized any legal problem that would arise from Khalil-Alsalaami admitting that he engaged in consensual sexual activity with an adult woman who was not his wife. In defense counsel's view, as expressed at trial, regardless of whether Khalil-Alsalaami's statements qualified as voluntary, the jury should understand that he did not actually confess to behavior he understood to be a crime; Khalil-Alsalaami thought he was merely falsely admitting to engaging in a noncriminal extramarital affair with an adult female.

Defense counsel also emphasized, throughout trial, that C.J.'s account of events changed from one not including anal sodomy to one including anal sodomy; that law enforcement had failed to follow up on specific, important lines of inquiry and witnesses; that Runyan had failed to audio record two of his discussions with Khalil-Alsalaami in which, according to the defense, Runyan pressured Khalil-Alsalaami and put words in his mouth; and that the Kansas Bureau of Investigation had failed to test or to compare forensic test results on certain items worn by C.J. or seized from Khalil-Alsalaami's bedroom. The defense also advanced a theory that the DNA found on C.J.'s shorts could have been transferred from Khalil-Alsalaami's bedding, because he had engaged in sex with a girlfriend in his bed earlier in the day of the party and C.J. had admitted being on the bed with her boyfriend during the party.

During Khalil-Alsalaami's cross-examination at trial, the prosecutor moved to admit the stipulation to the voluntariness of his incriminating statements to detectives. Defense counsel did not object. Khalil-Alsalaami testified that he was unfamiliar with the journal entry recording the stipulation. But the prosecutor used it to impeach his direct testimony that he had falsely confessed because he had been confused, pressured, and set up by Runyan's use of a minimization interrogation technique. Khalil-Alsalaami agreed with the prosecutor that the journal entry recited that his statement was knowingly and voluntarily made. The prosecutor discussed the journal entry and Khalil-Alsalaami's testimony about it again during closing arguments.

The jury acquitted Khalil-Alsalaami of rape and convicted him on the two counts of aggravated criminal sodomy. That is, it acquitted Khalil-Alsalaami on the one count based on behavior he had denied engaging in at the time of his interrogation, and it convicted on the two counts based on behavior he had admitted engaging in at the time of his interrogation.

On direct appeal, Khalil-Alsalaami's counsel did not challenge the admission of his incriminating statements or the admission of the journal entry about the voluntariness of the statements. Other appellate arguments were rejected, and a panel of our Court of Appeals affirmed Khalil-Alsalaami's convictions and sentence. State v. Khalil-Alsalaami , No. 106,610, 2012 WL 5869581, at *1 (Kan. App. 2012) (unpublished opinion).

Khalil-Alsalaami then filed the K.S.A. 60-1507 motion underlying this appeal. He alleged that trial and appellate counsel provided ineffective assistance in 11 ways, including the following:

"(c) The Petitioner was denied the effective assistance of counsel in that trial counsel failed to investigate and file a motion to suppress challenging the voluntariness of the Petitioner's statement to law enforcement and, instead, stipulated that the Petitioner's statement was voluntary.

"(d) The Petitioner was denied the effective assistance of counsel in that trial counsel stipulated that the Petitioner's custodial statement to law enforcement was voluntary, knowing, and intelligent, and in failing to object when the stipulation was admitted as a State's exhibit during trial."

District Judge John F. Bosch held an evidentiary hearing on Khalil-Alsalaami's motion.

During Clark's testimony at the hearing, he admitted he never challenged the voluntariness of Khalil-Alsalaami's incriminating statements even though his client sometimes had difficulty understanding what Runyan was saying or asking him during the interrogation. Clark testified that he looked at factors he thought were "germane to the issue of voluntariness of confessions" and decided not to file a motion to suppress or complete the Jackson v. Denno hearing begun by his predecessor. Clark thought an argument that the statements were involuntary lacked merit, and he did not want to lose credibility in the eyes of the district judge.

Clark said he was unsure about whether Khalil-Alsalaami understood the Miranda form, and he acknowledged that Runyan could be heard on the interrogation recording saying that Khalil-Alsalaami cannot read English. Clark also testified that he did not challenge Runyan's failure to read aloud the portions of the waiver of Miranda rights form that asked, "Do you understand each of these rights I have explained to you[?]" and ...