BY THE COURT
Sixth Amendment to the United States Constitution guarantees
that in all criminal prosecutions, the accused shall enjoy
the right to have the effective assistance of counsel for his
or her defense.
purpose of requiring that the constitutionally mandated
assistance of counsel be effective assistance is simply to
ensure that criminal defendants receive a fair trial. To
fulfill the effective assistance function, counsel owes the
client a duty of loyalty and a duty to avoid conflicts of
Sixth Amendment right to counsel is made applicable to state
proceedings by the Fourteenth Amendment to the United States
When a defendant claims a Sixth Amendment right to counsel
violation based on his or her attorney's concurrent
representation of another, the analysis starts with a
determination of whether the defendant has established that
his or her attorney had an active conflict of interest.
Under the concurrent representation circumstance presented in
this case, the defendant had the additional burden of
demonstrating that his attorney's active conflict of
interest actually affected the adequacy of the attorney's
a criminal defendant claims a Sixth Amendment right to
counsel violation based on his or her attorney's
deficient performance, the defendant must satisfy a two-part
test by proving: (1) counsel's performance was deficient,
which means counsel made errors so serious that counsel's
performance was less than that guaranteed by the Sixth
Amendment, and (2) the deficient performance prejudiced the
defense, which requires showing counsel's errors were so
serious they deprived defendant of a fair trial. In other
words, the defendant must show there is a reasonable
probability the result would have been different but for
Cumulative trial errors, when considered collectively, may
require reversal of the defendant's conviction when the
totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. But no
prejudicial error may be found upon the cumulative effect
rule if the evidence is overwhelming against the defendant.
from Sherman District Court; Scott Showalter and Glenn R.
A. Anderson, Sr., of Law Office of Donald E. Anderson II,
LLC, of Ellinwood, was on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, and Derek
Schmidt, attorney general, were on the briefs for appellee.
Kelly Moyer's direct appeal returns to this court after a
remand to the district court for a State v. Van
Cleave, 239 Kan. 117, 716 P.2d 580 (1986), hearing to
determine whether Moyer was denied his Sixth Amendment right
to counsel, either because his trial counsel was not
constitutionally conflict-free or was not constitutionally
competent. State v. Moyer, 302 Kan. 892, 895, 935,
360 P.3d 384 (2015), as modified in 306 Kan. 342,
410 P.3d 71 (2017). When this court remanded the case for a
determination of whether Moyer was provided effective
assistance of counsel, it also reserved the question of
cumulative error. We now determine that Moyer's
convictions can be affirmed.
and Procedural Overview
detailed description of the sodomy and sexual intercourse
underlying Moyer's five sex crime convictions is set
forth in the opinions cited above. The victim was J.M.,
Moyer's oldest daughter, who testified to a pattern of
sexual abuse that started when she was 11 years old and
continued into her 14th year. In addition to that testimony,
J.M. provided several items of corroborating physical
evidence, including used condoms from sexual encounters with
Moyer, an audio recording J.M. secretly made of one sexual
encounter, a rag that J.M. had used to clean herself after
sex acts with Moyer, and a notebook containing an agreement
between J.M. and Moyer enumerating a points system Moyer
designed by which J.M. could ostensibly complete the sexual
relationship with Moyer by performing sex with him according
to certain rules.
the trial, a problem arose getting an exculpatory witness to
testify for the defense. While Moyer's attorney, Jeffery
Mason, was serving as guardian ad litem for J.T. in a child
in need of care (CINC) case, he learned that J.T. knew J.M.
and her sister, H.M.; that J.T. was aware of J.M.'s
sexual abuse allegations against Moyer; that J.M. and H.M.
had told J.T. that the allegations against Moyer were false;
and that J.T. was willing to testify in Moyer's criminal
case. In our earlier opinion, we described the problems as
"Close to the trial date, Mason attempted to locate J.T.
to subpoena her to testify, and he learned she was at the St.
Catherine's Hospital psychiatric ward in Garden City.
Mason discussed with Moyer the dangers of calling a witness
suffering from mental problems, but Moyer said he still
wanted J.T. to testify. After Mason contacted J.T. to assess
her ability to testify and to determine the substance of her
testimony, he subpoenaed her. But Mason was informed that
J.T.'s doctor would not approve J.T. coming to Goodland
to testify because she needed to go immediately to a
residential psychiatric treatment facility.
"Mason acknowledged the potential conflict of interest
created because of his roles as J.T.'s guardian ad litem
and Moyer's defense attorney, and he admitted to the
court that he had not obtained a written waiver of conflict
from either Moyer or J.T. But he nevertheless asserted:
'I don't believe that there's a conflict under
the circumstances.' That assertion was followed by a
discussion of submitting the testimony of an unavailable
witness, in which Mason asserted that there would be 'an
absolute conflict of interest if the question would be
whether I would be presenting-presenting that evidence to the
Court or to the jury. I can't do that because I'm Mr.
Moyer's attorney, but the information that came to me
came only to me.'
"The State responded by pointing out that Mason had
failed to advise the court about this potential conflict of
interest at any of the earlier court hearings. Further, the
State argued that the potential conflict of interest was a
secondary consequence of the defense counsel's failure to
properly subpoena J.T." 306 Kan. at 381.
point, the trial court noted that J.T.'s subpoena was
issued just that morning. The trial court gave Mason until
the end of Moyer's trial testimony to determine whether
J.T. was available to travel and competent and capable of
testifying. The trial court held that if Mason could not show
J.T.'s availability, the trial would continue without
her, specifically declaring: "'Defense [counsel] has
had an ample opportunity to prepare their case, that there
has not been a subpoena issued prior to today's date, and
that we're going to go forward and this case will be
concluded and taken to the jury.'" 306 Kan. at 382.
Moyer testified, the parties had another in-chambers
conference regarding J.T.'s availability. This
court's prior opinion stated the following facts:
"Mason explained that his law partner had spoken with a
screening therapist at St. Catherine's who explained that
a doctor informed the screening team that J.T. 'would be
extremely unreliable in any testimony and would lack any
credibility whatsoever.' The screening therapist could
not tell the law partner whether J.T. was competent to
testify. The therapist relayed that J.T. was being sent to a
psychiatric residential treatment facility where she would
not be free to leave and that they did not recommend that she
be forced to testify.
"The court noted: 'It would appear then that the
possibility of [J.T.] being capable of testifying is
extraordinarily small, and even if she were, there's a
question as to any value that her testimony would be
given.' Mason told the court, 'That is exactly my
assessment of it, Your Honor,' and asked for additional
time to speak with his client about the matter.
"The court granted this request and after the
conference, the following information was placed on the
'MR. MASON: . . . Although my client believes that the
evidence that [J.T.] would testify to, as he understands it,
would be beneficial to him based on what I've already put
on the record, we have also expressed- discussed the fact
that the information that we have from two different
individuals involved in the screening processes, that her
testimony today would be extremely unreliable and lack any
credibility and that the State would have the opportunity to
bring that to the jury's attention; and therefore, it
would not be appropriate to use [J.T.'s] testimony
"The court then had Moyer confirm that he understood
what Mason had said and that he agreed with the decision to
proceed. Moyer also told the court that he was satisfied with
Mason's representation to that point. But the district
court made no explicit finding with respect to whether a
conflict of interest existed. Rather, . . . the judge said
that he understood Mason's action, that Mason's past
behavior had always been ethical, and that 'if there is a
problem, then those problems will be dealt with by
others.'" 306 Kan. at 382-83.
court held that although the trial court inquired into the
facts underlying the conflict of interest, it failed to make
the determinations necessary for this court to assess what
impact the conflict had on Mason's performance. For
example, this court did not know whether Mason was still
serving as J.T.'s guardian ad litem at the time of
Moyer's trial. Further, this court had no findings from
the district court as to Mason's failure to properly
issue and serve a subpoena on J.T. forcing her appearance or
regarding whether Mason should have preserved J.T.'s
testimony in some manner. Therefore, this court remanded for
a Van Cleave hearing to determine whether Moyer was
denied his Sixth Amendment right to counsel. 306 Kan. at
remand, 15th Judicial District Chief Judge Glenn Schiffner
granted Moyer's motion to disqualify or recuse Judge
Scott Showalter, Moyer's trial judge, from presiding over
the Van Cleave hearing. Chief Judge Schiffner
assigned Chief Judge Glenn R. Braun of the 23rd Judicial
District to preside over the hearing. Actions taken with
Judge Braun presiding will hereinafter be referred to as
actions taken by the Van Cleave court, in order to
distinguish these proceedings from actions taken by Judge
Showalter during Moyer's jury trial.
State filed a motion to clarify the scope of remand based
upon Moyer's letters to district judges and counsel
indicating his intent to inquire into matters the State
argued were not subject to remand, including Mason's
qualifications for appointment as Moyer's counsel and the
trial court's denial of Moyer's pretrial motions for
new counsel. According to the State, the following issues
were subject to remand: (1) Was Mason still J.T.'s
guardian ad litem at the time of Moyer's trial? and (2)
if so, (a) was Mason's advice adversely impacted by his
status as J.T.'s guardian ad litem? and (b) was Mason
ineffective for failing to obtain J.T.'s presence at
trial or otherwise preserve her testimony?
the State stipulated that the answer to the first question is
"yes," Mason was J.T.'s guardian ad litem at
the time of Moyer's trial.
written response to the State's motion argued the remand
was limited to the three issues discussed in this court's
opinion, including whether the trial court denied him due
process by failing to conduct a meaningful hearing on his pro
se pretrial motions for new counsel. Moyer argued the
following were relevant to Mason's conflict of interest
and ineffectiveness: Mason's qualifications; Mason
falsely reporting to the Board of Indigents' Defense
Services (BIDS) a visit with Moyer in jail that did not take
place; Mason's failure to withdraw as both Moyer's
counsel and J.T.'s guardian ad litem when he first
learned J.T. was a potential exculpatory witness; Mason's
financial interest in continuing both cases; the failure to
properly and timely subpoena J.T.; the failure to preserve
J.T.'s testimony; and the failure to request a
continuance in order to obtain J.T.'s testimony or make
inquiries as to her mental health status.
Van Cleave court ruled that the remand proceeding
would cover two issues: (1) Did the conflict deprive Moyer of
his Sixth Amendment right to effective assistance of counsel?
and (2) if not, was Mason's performance so deficient that
he denied Moyer his right to a fair trial? The Van
Cleave court noted that much of what Moyer wanted to
present might be relevant to cumulative error but might not
be within the scope of this court's remand. In an effort
to stay within the scope of the remand while still allowing
Moyer to create a record for this court to consider for
cumulative error purposes, the Van Cleave court
permitted Moyer to proffer evidence related to Mason's
counsel stated he did not read this court's decision for
the "remand and the Van Cleave hearing to be a
full blown Van Cleave"; instead,
"[i]t's clear that Mr. Moyer, . . . will still have
the availability of relief under [K.S.A. 60-]1501 and [K.S.A.
60-]1507 at some time in the future, if that's
necessary." Therefore, Moyer assured the Van
Cleave court he would limit the issues at the Van
Cleave hearing to those raised in his response to the
State's motion to clarify. But the Van Cleave
court allowed Moyer to preserve for appeal his proffer that
Mason was not qualified under K.A.R. 105-3-2 to be court
appointed on an off-grid felony, which deprived Moyer of his
Sixth Amendment right to effective counsel.
and Moyer were the only witnesses who testified at the
Van Cleave hearing. The Van Cleave court
took judicial notice of J.T.'s CINC case and
corresponding Kansas Department of Social and Rehabilitation
Services (SRS) agency records. J.T.'s records from St.
Catherine's Hospital were admitted at a prior hearing,
and the Van Cleave court also reviewed those in
making its decision. Further, the Van Cleave court
took judicial notice of the entire transcript of the jury
trial and all trial exhibits.
Van Cleave court issued written findings of fact and
conclusions of law, which included the following facts:
"1. Jeffery Mason was the GAL for J.T. in the CINC case
during the time he represented Moyer.
"2. Mason testified J.T. told him that Moyer's
daughter, the victim in the criminal case, told J.T. the
allegations against Moyer were false.
"3. Mason conveyed this information to Moyer and it was
agreed J.T. would be a witness for Moyer.
"4. One week before trial, Mason knew the location on
J.T. but did not issue a subpoena.
"5. Mason testified that it was a strategic decision not
to subpoena J.T. in advance of trial to keep the state from
discovering or investigating J.T.
"6. During the trial, Mason discovered that J.T. was in
the psychiatric ward of St. Catherine's Hospital in
Garden City, Kansas.
"7. Mason faxed an unsigned subpoena to the hospital on
the night of the third day of the trial.
"8. After the hospital received the fax, conversations
occurred regarding J.T. Mason and his law partner were told
that J.T. had threatened suicide; was a danger to others; was
an extreme flight risk; was on slight medication; was
extremely unreliable and lacked credibility; and it would be
detrimental to her health to testify.
"9. Mason testified that he recognized a potential
conflict when he learned the doctor for J.T. would not make
her available to testify because she was not competent.
"10. Mason told Moyer of these developments and let
Moyer decide whether to proceed with the trial or request a
continuance. Moyer told Mason he wanted to go forward without
the testimony of J.T.
"11. During the trial, a recess was held in which Mason,
in the presence of Moyer, revealed J.T.'s medical
information to the judge and Mason's possible conflict of
interest. The judge inquired of Moyer regarding a continuance
and Moyer declined to request a continuance and asked for the
trial to proceed without the testimony of J.T.
"12. The trial judge never ruled on the issue of the
"13. J.T. was discharged from St. Catherine's
hospital on February 4, 2010, the fourth day of the trial.
The discharge summary states: 'She was very well
controlled on her symptoms . . . No psychotic symptoms were
elicited and she was able to engage in conversation without
side effects elicited and was willing to talk about her
substance abuse and accept counseling for this.'
"14. J.T. did not appear during the hearing on remand
from the Supreme Court. It is unknown what her testimony
would have been ...