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Robinson v. State

Court of Appeals of Kansas

August 3, 2018

Frank Robinson, Appellee/Cross-appellant,
State of Kansas, Appellant/Cross-appellee.



         A habeas corpus claim alleging ineffective assistance of counsel presents mixed questions of fact and law. When a district court conducts a full evidentiary hearing on such claims, the appellate courts determine whether the district court's findings are supported by substantial competent evidence and whether its factual findings support the court's legal conclusions. The appellate courts apply a de novo standard to the district court's conclusions of law.


         To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish (1) that the performance of defense counsel was deficient under all of the circumstances; and (2) prejudice-that there is a reasonable probability the jury would have reached a different result absent the deficient performance.


         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. 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.


         If a defense counsel has made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel's decision is virtually unchallengeable. Strategic decisions made after a less than comprehensive investigation are reasonable exactly to the extent a reasonable professional judgment supports the limitations on the investigation.

          Appeal from Shawnee District Court; Evelyn Z. Wilson, judge. Affirmed.

          Rachel L. Pickering, assistant district attorney, Michael F. Kagay, district attorney, Kristafer R. Ailslieger, deputy solicitor general, Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellant/cross-appellee.

          Jean Phillips and Alice Craig, of Paul E. Wilson Defender Project for Innocence and Post-Conviction Remedies, University of Kansas School of Law, for appellee/cross-appellant.

          Before Bruns, P.J., Hill, J., and Walker, S.J.

          Hill, J.

         It is not an easy decision to grant a new trial to a man after he has been convicted of killing another human being and that conviction has been upheld on appeal. But more important than the severity of a crime is the fundamental principle of American law-all accused must receive a fair trial, even those accused of setting an apartment house fire that caused the death of a tenant. That legal principle led the judge here to make such a decision and order a new trial for Frank Robinson. Based on the judge's thoughtful and thorough written opinion, and our review of the record, we agree.

         The facts are reported in the direct criminal appeal.

         After an apartment house in Topeka burned and one of the tenants died, the United States government charged Robinson with arson resulting in death. When the federal government dismissed the charge before trial, the State of Kansas charged Robinson with felony murder and aggravated arson. All pertinent details of the state prosecution may be read in the direct criminal appeal reported in State v. Robinson, No. 105, 281, 2012 WL 4794455 (Kan. App. 2012) (unpublished opinion), which upheld Robinson's convictions for reckless second-degree murder and aggravated arson. But to provide a framework for our discussion, we will give a brief summary.

         On the day the apartment house burned down, there were two fires. The first, discovered in the basement, was extinguished by one of the tenants. A second fire, near the stairs, soon engulfed the building in flames. The upstairs tenant did not escape, and she died in the fire.

         The government's fire investigator, Agent Douglas Monty, testified that in his opinion, the fire was intentionally set on the stairs using an open flame, such as a lighter, and a flammable liquid. In statements to detectives, Robinson denied any responsibility for the fire but did say that he could have been smoking crack cocaine in the hall of the apartment and could have thrown lighted matches on the floor, but he never intended to hurt anyone. "I can't say whether I did it [caused the fire] or didn't, but I know I was smoking right there."

         The district court received evidence on the habeas corpus motion.

         In his motion for habeas corpus relief, Robinson alleged several grounds for relief. He contended that he was denied his constitutional right to effective assistance of counsel because his lawyer failed to:

• move to suppress some statements he made to law enforcement officers;
• present expert testimony refuting the claims made by the State's fire investigators;
• impeach certain trial witnesses-Detective Bryan Wheeles, Detective Brian Hill, and Fire Marshal Wally Roberts-with contradictory testimony from other hearings;
• present alibi witnesses;
• present exculpatory evidence contradicting Ernest Brown Sr.'s testimony that he saw Robinson fleeing the fire;
• allow Robinson to testify at trial; and
• consult with Robinson before making a written stipulation that the owner of the apartment house did not consent to having it burned.

         Finally, he claimed cumulative errors by trial counsel should lead to a new trial.

         At the habeas corpus hearing, Robinson presented several witnesses:

• Joseph Huerter, Robinson's court-appointed trial attorney;
• Gene Gietzen, a forensic scientist with whom Huerter consulted;
• Kirk Redmond, Robinson's federal public defender;
• Melody Brannon, Robinson's federal public defender; and
• Paul Bieber, a fire investigator.

         For its part, the State called Jason Belveal, one of Robinson's attorneys, to testify.

         Eventually, the court ruled that Robinson's defense attorneys were ineffective for failing to investigate and then present sufficient expert testimony to refute the claims of the State's expert. The court also decided that this failure prejudiced the defense. The court also ruled that cumulative errors by the defense counsel called for habeas corpus relief. After concluding that Robinson's convictions were vulnerable to collateral attack because of ineffective assistance of counsel, the court ordered a new trial. But the court remained unmoved by Robinson's other contentions.

         The State appeals and ...

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