BY THE COURT
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
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
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.
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.
from Shawnee District Court; Evelyn Z. Wilson, judge.
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.
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.
Bruns, P.J., Hill, J., and Walker, S.J.
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.
facts are reported in the direct criminal appeal.
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.
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.
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."
district court received evidence on the habeas corpus
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
• 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
• 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.
he claimed cumulative errors by trial counsel should lead to
a new trial.
habeas corpus hearing, Robinson presented several witnesses:
• Joseph Huerter, Robinson's court-appointed trial
• Gene Gietzen, a forensic scientist with whom Huerter
• Kirk Redmond, Robinson's federal public defender;
• Melody Brannon, Robinson's federal public
• Paul Bieber, a fire investigator.
part, the State called Jason Belveal, one of Robinson's
attorneys, to testify.
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.
State appeals and ...