Opinion
No. 106,763.
2013-07-5
STATE of Kansas, Appellee, v. Stephane V. LORING, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge. Elizabeth Seal Cateforis, of Paul E. Wilson Project for Innocence and Post Conviction Remedies, University of Kansas School of Law, of Lawrence, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Elizabeth Seal Cateforis, of Paul E. Wilson Project for Innocence and Post Conviction Remedies, University of Kansas School of Law, of Lawrence, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Stephane V. Loring of rape. On appeal, Loring contends the trial court erred when it denied his motion for a new trial because his retained trial counsel, David Whinery, provided constitutionally deficient representation during his jury trial. Finding no error in the trial court's ruling, we affirm the conviction.
Factual and Procedural Background
C.H. and Loring met at a Wal–Mart in October 2008. C.H. worked at the store and Loring was a customer. A friendship developed between them. On November 18, 2008, C.H. visited Loring's apartment for the second time, and after this visit, C.H. accused Loring of rape.
Following the incident, C.H. went home, took a shower, and changed clothes. C.H. drove herself to Providence Medical Center, where she consented to a sexual assault examination. While at the medical center, C.H. spoke with Officer Darrell Forrest and Detective James Gunzenhauser of the Kansas City, Kansas, Police Department. Detective Gunzenhauser testified that C.H. appeared “visibly shaken, upset.” According to the detective, C.H. provided the following account of the sexual assault:
“She told me that she'd gone over to [Loring's] apartment. While they were inside of the apartment, that the male party had come on to her, was trying to kiss her. I guess she'd gone over to watch a movie.
“Basically the only furniture that was in the apartment was in the back bedroom. So they were sitting on the bed watching a movie. She said the male that she knew, this [Loring], was starting to kiss her and she told him, no, kissing leads to sex and she didn't want any of that.
....
“She said, at that time, he had pushed her down on the bed and was trying to remove her pants and underwear.
....
“She said that he was pulling down her pants. She continually told him to stop and was trying to pull her pants back up, said that he was able to get her pants and underwear down and then started to perform oral sex on her.
....
“She said that during the oral sex, she kept trying to push him away and then, at that point, he took his penis and made entry into her vagina and, in her words, started pumping hard and fast.
....
“She said that she continued to tell him to stop. She got up at one point. He pulled her back down on top of him. She got back up, grabbed her shoes and went running for the front door.”
C.H.'s clothing that she had been wearing that evening was collected for forensic examination.
After interviewing C.H., Detective Gunzenhauser went to Loring's apartment. Loring gave the detective permission to enter his apartment, and “basically told [Detective Gunzenhauser] anything that he could do to help clear this up, he was willing to do that.” Loring also consented to a search of his apartment.
After the search, Loring voluntarily went to the Detective Bureau where an interview was conducted by Detective Gunzenhauser. Loring declined to provide a saliva sample for DNA analysis, but a search warrant was later obtained to compel the seizure of the saliva. After being advised of his Miranda rights, Loring agreed to speak to the detective. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
As recounted by Detective Gunzenhauser, Loring told him that November 18, 2008, was C.H.'s first visit to his apartment and, initially, Loring “kept telling [him] that [Loring and C.H.] had no sex or sexual contact.” When the detective explained that C.H. had submitted to a rape examination, Loring “immediately changed his story to say, well, you know, my penis had just touched her private parts.” Loring claimed that C.H. initiated this contact when she leaned over, tried to kiss him, and told him he was handsome while they were both sitting on his bed together. In response, Loring said he turned away and told C.H. he had “a girlfriend and that they shouldn't be doing that.”
Loring indicated that things “kind of progressed” as C.H. began to remove her pants and jacket. C.H. then “rolled over on [him],” and when he “kind of pushed her away,” C.H. grabbed his arm and pulled him on top of her. Loring said that while he was on top of C .H., his penis brushed against her vagina, but he insisted that C.H. was wearing underwear and was wearing boxer shorts. According to Loring, they both agreed to stop before things progressed any further, and Loring specifically denied that any penetration or ejaculation occurred. According to Detective Gunzenhauser, Loring insisted that C.H.'s rape allegation stemmed from her desire to “get attention or ... mess up his relationship.”
As a result of the police investigation, Loring was charged with rape, in violation of K.S.A. 21–3502(a)(1)(A).
At trial, C.H. and Loring testified to markedly different accounts of the events of November 18, 2008. According to C.H., after they met, she and Loring communicated by phone and/or text message “practically everyday [ sic ]” and spoke in person “[a]t least once a week” when Loring went to the Wal–Mart, In early November 2008, C.H. and her infant daughter visited Loring at his apartment for the first time. While C.H. and Loring did not engage in any type of romantic or sexual contact, they did discuss that C.H. wanted to date Loring and pursue a “long-term” relationship. According to C.H., Loring never indicated that he had a girlfriend.
A couple of weeks later, on November 18, 2008, C.H. went to Loring's apartment, after her shift at Wal–Mart because, at about 9 p.m., Loring sent her a text message asking if she would “come by for a hug” and telling her “about how his mother passed away.” Although C.H. was supposed to go home to check on her two teenage sisters, C.H. told Loring that she “could stop by for a little bit.”
When C.H. arrived at Loring's apartment, Loring opened the front door and walked towards his bedroom. C.H. followed Loring, but when she got to his bedroom, Loring was in the restroom. Shortly after Loring exited the restroom, he stood in front of her and tried “to kiss [her] on [her] lips and stuff.” C.H. turned her head to avoid Loring's advances and she told him that she was not interested because “usually when you kiss someone, it's just like—it leads somewhere else.” Loring assured C.H. that kissing would “not lead to sex” and he continued trying to kiss her, but C.H. resisted his advances. Loring then pushed C.H. down onto the bed, and after positioning himself on top of her, resumed his attempts to kiss her. C.H. told Loring “no” and tried to push him off of her, without success.
While C.H. resisted, Loring pulled down her pants and underwear. According to C.H., Loring then briefly performed oral sex on her against her will. During this time, Loring held C.H. down and C.H. tried to resist by pushing Loring's head away and telling him “no.”
Loring then began to have sexual intercourse with C.H. According to C.H., during this time, Loring held her down and never responded to her pleas to stop. During the assault, C.H. began to act like she was “going to go through with it,” and once C.H. appeared compliant, Loring let go of her. C.H. seized this opportunity to escape by pulling up her pants, grabbing her shoes, and running towards the door. Loring followed C.H., grabbed her by the arm, and asked her if she was “mad or anything.” C.H. was “really scared,” so she told Loring she was not angry, but when he then asked for “a hug,” C.H. refused. C.H. left Loring's apartment, walked barefoot to her car, and drove away.
While driving towards her house, C.H. texted her brother, J.H., and “told him that [she] just got raped.” In response, J.H. called C.H. and told her to immediately “call the police and go to the hospital.” J.H. testified that he could tell C.H. was “upset, like really, really upset” because she was “short of breath, crying ... [and] speaking really soft, [and] really low.”
J.H. testified that he was really “angry and ... upset” when he found out his sister had been raped. J.H. explained that he really wanted to “retaliate” and “cause harm to [Loring]” because he wanted Loring “to feel the pain that [he] felt and [his] sister felt.” According to J.H., however, after the rape Loring never gave him “an excuse” to harm him and, thus, he never actually had an opportunity to “beat him up.” Notably, C.H. testified that sometime after the preliminary hearing, she called Loring because she wanted to “set [him] up [f]or ... a beating” from J.H. C.H. explained that she made this call “[b]ecause what [Loring] did was wrong and [she] just—[she] wanted somebody to hurt him so he could feel like [her].” The beating never took place.
According to C.H., the sexual intercourse was painful and she did not know whether Loring wore a condom or if he ejaculated. C.H. testified that she did not make up the rape allegations for attention, she did not consent to any of the sexual acts, and she did not invite Loring's advances.
In Loring's version of events, C.H.'s first visit to his apartment occurred because she was interested in renting an apartment in his complex and she wanted him to meet her infant daughter. During the 4 to 5 hours C.H. was at the apartment, there was no sexual contact and Loring mentioned to her that he had a girlfriend.
Loring denied C.H.'s allegation that he texted her on November 18, 2008, and asked her “to come over for a hug.” Instead, according to Loring, C.H. texted him and asked if she could come over because her car was not “running right” and she wanted to ask him another question about his apartment. Loring told C.H. that he was “getting ready for work and that she couldn't stay long.” In response, C.H. advised that she could not stay long either because she had to “get home and watch her sisters.”
Loring insisted that he did not “try anything sexual” with C.H. while she was at his apartment; to the contrary, C.H. was the sexual aggressor. According to Loring, when he sat down on the bed C.H. “scooted up” next to him and told him that they “would have cute kids together,” she “like[d] him[,] and she was looking for a father figure for her baby.” C.H. tried to kiss Loring, and although Loring “kind of moved [his] head,” she managed to kiss him on his jaw and neck area. C.H. then took off her pants and “climbed on top of [Loring]” and, as she did so, their “private parts touched.” Loring explained that although they were both clothed when this happened, he viewed this action as “a sign or start of sexual intercourse.”
According to Loring, after he “turned [C.H.] down a couple of times,” they agreed that they “shouldn't do this for the simple fact that [he][had] a girlfriend at the time” and he also knew the father of C.H.'s baby. During cross-examination, Loring testified that C.H. also masturbated on his bed. He explained that at some point during her visit, C.H. began masturbating on his bed, with her underwear on, and in response, he “laughed at her” and said, “[T]hat's kind of crazy. It's kind of funny. Why are you doing that?” According to Loring, he then leaned his head back on the bed and closed his eyes, and shortly after doing so, C.H. touched his neck and mouth area twice with the hand she used to touch her vagina. Loring became irritated, and he told C.H., “[Y]ou don't need to do that. We're just gonna be friends.”
C.H. asked Loring about a flier hanging on his wall. When Loring told her that it was his mother's obituary, C.H. stated, “[Y]ou didn't like her anyway.” Loring looked at C.H., laughed, and replied, “[W]ell, you don't really know my mom, but I guess.” According to Loring, at this point, C.H.'s “whole demeanor changed ... ‘cause she—she said like three times, I got you, I got you,” and Loring had no idea what she meant.
Loring noticed that C.H. seemed “confused and dazed.” She kept looking around his apartment, but when he asked her if she had dropped anything or was trying to find something, she told him “no.” Loring walked C.H. to the front door, and before she left, they “gave each other mutual hugs.” Loring then told C.H. to call him when she got home because he wanted to make sure that she was safe.
Loring testified that he was “shocked” when Detective Gunzenhauser informed him of C.H.'s accusations. Loring acknowledged that he did not tell the detective that he had known C.H. for longer than 2 weeks, that C.H. visited his house on November 18, 2008, in part, due to problems with her automobile, that this was C.H.'s second visit to his apartment, or that C.H. masturbated on his bed. According to Loring, he failed to mention these facts because he was “quite nervous” due to “the magnitude of the situation,” he could not “remember everything about the current situation,” and his misstatements were “just a[n] honest mistake in communication.”
At the conclusion of the trial on March 31, 2010, the jury found Loring guilty of rape. Prior to sentencing, newly retained defense counsel filed a motion for new trial based upon the ineffective assistance of Whinery. On December 10, 2010, District Judge J. Dexter Burdette, the judge who presided over Loring's jury trial, held an evidentiary hearing to consider Loring's motion for new trial. After hearing the testimony, arguments, and reviewing the trial transcript and his personal notes, the trial court denied the motion for new trial. The trial judge found that “defense counsel made appropriate objections and arguments throughout the trial, steadfastly maintained his client's innocence and ... zealously fought to protect his substantial criminal rights.”
Loring was sentenced to 176 months' imprisonment with lifetime postrelease supervision. On appeal, Loring contends the trial court erred in denying his motion for a new trial based upon Whinery's ineffective assistance of counsel in five separate areas. We will consider these claims separately after setting forth the legal standards which will guide our analysis.
Standards of Review for Ineffective Assistance of Counsel Claims
The Sixth Amendment to the United States Constitution provides that “ ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.’ “ State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). Our Supreme Court has explained that in order to ensure that criminal defendants receive a fair trial, this right, made applicable to the states through the Fourteenth Amendment to the United States Constitution, guarantees “more than the presence of an attorney; it guarantees the right to effective assistance from the attorney. [Citation omitted.]” Galaviz, 296 Kan. at 174.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). When, as in this case, the district court has held a full evidentiary hearing to consider the effectiveness of the defendant's trial counsel, appellate courts review the district court's factual findings to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. See State v.. Adams, 292 Kan. 151, 167, 254 P.3d 515 (2011). Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). Appellate review of the district court's conclusions of law is de novo. Adams, 292 Kan. at 167.
To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Rather, before counsel's assistance can be found to be so defective as to require reversal of a conviction, the defendant must satisfy the constitutional standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984); see also Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985) (adopting the Strickland holding).
Under the Strickland test, the defendant must first prove that counsel's performance was deficient, i.e., counsel “ ‘made errors so serious that counsel's performance was less than that guaranteed by the Sixth Amendment.’ “ Haddock v. State, 282 Kan. 475, 512, 146 P.3d 187 (2006). Second, the defendant must show that counsel's deficient performance prejudiced the defense and deprived the defendant of a fair trial, i.e., “ a trial whose result is reliable. 466 U.S. at 687.” State v. Cheatham, 296 Kan. 417, 432, 292 P.3d 318 (2013). “The benchmark for judging any claim of ineffectiveness must be whether the attorney's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” 296 Kan. 417, Syl. ¶ 3. And when hearing an ineffectiveness of counsel claim based upon deficient performance, courts must consider the totality of the evidence before the judge or jury. 296 Kan. 417, Syl. ¶ 6.
In order to establish the first prong of the Strickland test, the defendant must demonstrate that his or her counsel's “ ‘representation fell below the objective standard of reasonableness, considering all of the circumstances.’ “ Thompson, 293 Kan. at 715. The sphere of reasonable professional conduct is broad; therefore, judicial scrutiny of an attorney's performance “must be highly deferential and must make every effort to ‘eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.’ [Citation omitted.]” Cheatham, 296 Kan. at 431–32. As a result, reviewing courts entertain a strong presumption that counsel's representation fell within the wide range of professional conduct. Thompson, 293 Kan. at 715.
Moreover, “ ‘[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ [Citations omitted.]” Adams, 292 Kan. at 167. “Mere invocation of the word ‘strategy[,]’ [however,] does not insulate the performance of a criminal defendant's lawyer from constitutional criticism. [Citation omitted.]” Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008). It is the defendant's burden to demonstrate that counsel's alleged deficiencies were not the result of strategy. Adams, 292 Kan. at 167.
Under the second prong of the Strickland test, the defendant must show there is “ ‘a reasonable probability’ “ that, but for counsel's error(s), the result of the proceeding would have been different. Adams, 292 Kan. at 168. “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation omitted.]” 292 Kan. at 168.
Loring's Ineffective Assistance of Counsel Claims
Trial Counsel's Challenge To State's DNA Evidence
Loring contends that Whinery was ineffective because he failed to effectively challenge the State's DNA evidence. According to Loring, Whinery's conduct undermined the proper functioning of the adversary process because but for his deficient performance, “there is a reasonable probability the result of the proceeding would have been different.” In response, the State asserts that Loring did not establish that Whinery's representation rose to the level of constitutionally ineffective assistance and, assuming it did, the result of his trial would not have been different.
Prior to trial, C.H.'s clothing, the rape kit, Loring's oral DNA swabs, and the comforter on Loring's bed were analyzed by the Kansas Bureau of Investigation Forensic Laboratory (KBI). The KBI discovered blood and amylase, an enzyme typically found in saliva, on C.H.'s underwear. KBI forensic scientist Barbara Crim–Swanson, explained that while amylase is highly indicative of saliva, “[i]t's just an indicator,” because amylase can also be found in much lower concentrations in vaginal secretions and other bodily fluids. A DNA analysis of the amylase and blood revealed that C.H. could not be excluded as a possible contributor but Loring was excluded as possible contributor.
With regard to specimens recovered from the rape examination, a microscopic analysis of C.H.'s vaginal slide did not reveal the presence of any sperm cells. An additional test, however, revealed the presence of seminal fluid and amylase. Crim–Swanson explained there were “a variety of reasons” for the absence of sperm cells; for instance, the sample may have been too small to find the sperm cells, the provider of the seminal fluid may have had a vasectomy causing him not to produce such cells, or the seminal fluid may have been from “an older sexual encounter.”
A DNA analysis of C.H.'s vaginal swabs matched the DNA profile of C.H. but did not match Loring's DNA profile. Consequently, according to Crim–Swanson, C.H. could not be “excluded as a possible contributor of the biological material ... [and] Loring ... would be excluded as a possible contributor.” Crim–Swanson indicated, however, that these findings did not prove that sexual intercourse did not occur between C.H. and Loring.
Finally, semen stains were found on four areas of Loring's comforter. Crim–Swanson testified that the DNA profile obtained from all four areas of the comforter matched Loring's profile and, as a result, Loring could not be “excluded as a possible contributor of the biological material.” The DNA profile obtained from three of the four stains did not match C.H.'s DNA profile excluding her “as a possible contributor.”
One area of the comforter, however, revealed a “mixture of DNA types from at least two individuals.” Crim–Swanson concluded that the major component was consistent with the DNA profile of Loring and the minor component was consistent with C.H.'s DNA profile.
At the hearing on Loring's motion for a new trial, the trial court found that Loring failed to prove that Whinery's strategy regarding the DNA evidence constituted inadequate assistance. The trial judge explained:
“Counsel for the defense testified in that hearing and also it was apparent during the trial that he had researched, consulted with experts and ... prepared ... for the DNA evidence. Frankly, his cross-examination was I thought strong. He brought out that the expert's opinions were not conclusive. He brought out that the victim could not be excluded as a provider and he harped on the issue of numbers, that is one in eight million I believe was part of the testimony of the expert, which, frankly, paled in comparison with some of the other billion numbers that were used.
“He established as well that it was a mixture. It was not solely the DNA of the defendant or solely the DNA of the victim. He also brought out, repeatedly I might add, that the timing of the deposit of that particular stain on the bedspread couldn't be proved for—for any of it. There's no way of telling when the stains occurred or specifically who put them there and when. He also made I thought a fairly strong point that the witnessthe expert witness could not even classify these as vaginal secretions, which went against the State's theory of the case.
“The other part of this particular issue, [Loring] condemn[s] counsel on one hand for the DNA, but based upon [Loring's] version of the events, that is that the victim had masturbated on the bedspread while he had never had any sort of sexual contact with her simply backed up his story, his testimony that she was the aggressor, that she was after him, that she recognized no limits, the fact.that he had a girlfriend, that he wasn't interested. This went to bolster or support his version of the events. Also that her hand not only touched the bedspread, but after they had touched her in her private area, she also touched the defendant, his face.
“Frankly, gentlemen, under the circumstances, that was good and solid trial strategy. There's no—there's no error there.”
The trial court's legal conclusion was proper and well supported by substantial competent evidence.
The crux of Loring's argument is that Whinery's strategic decisions regarding the DNA evidence fell below the measure of objective reasonableness because these strategic choices were premised upon a less than complete investigation. Specifically, Loring complains that Whinery did not “obtain necessary data from the KBI in order to have [an] independent DNA analysis done” or seek the information necessary for an expert “to perform a thorough analysis or to testify in any capacity at trial.”
Although “decisions of whether and how to conduct cross-examination and whether to call or not to call a certain witness are matters of trial strategy,” when defense counsel “ ‘lacks the information to make an informed decision due to inadequacies of his or her investigation, any argument of ‘trial strategy’ is inappropriate.' [Citations omitted.]” Wilkins, 286 Kan. at 982. Yet, as the State points out, Loring fails to support his allegations of inadequate investigation with citations to the record. This failure is significant because material factual statements made without citation to the record may be presumed to be without support. Appellate courts “will not independently search the record and guess which specific facts [appellant] believes support his general allegations.” State v. Bryant, 285 Kan. 970, 977, 179 P.3d 1122 (2008).
Moreover, our review of the record does not substantiate Loring's claim that Whinery neglected to thoroughly investigate the DNA evidence. At the evidentiary hearing, Whinery testified that this evidence was his “principal concern,” and while he did not have the money to hire an expert to testify or to perform independent DNA testing, he read numerous review articles, reviewed several DNA textbooks, spoke with the State's crime lab expert, and consulted with Stephanie Beine, a forensics expert. Additionally, Whinery explained that he enlisted the assistance of Cheryl Stewart, another attorney, to help him with his review of the State's case file and his preparation for Loring's trial. Whinery also indicated that he unsuccessfully attempted to obtain funding for an expert through the Board of Indigents' Defense Services (BIDS), and to continue the trial in order to give Loring additional time to obtain funds to retain an expert. In sum, the evidence showed that Whinery was well prepared to effectively attack the reliability and significance of the State's DNA evidence.
This pretrial preparation and effectiveness was shown in Whinery's approach to undermining the importance of the most incriminating aspect to the DNA evidence—the DNA mixture on Loring's comforter that was consistent with both Loring and C.H.'s DNA. Whinery developed a multifaceted attack on the significance of that evidence. First, Whinery highlighted the fact that C.H.'s genetic material came from an unknown type of bodily fluid. Second, during cross-examination, Whinery was able to elicit from Crim–Swanson that it was “not unusual to detect a man's semen on his own bedding,” and after a semen stain is deposited on bedding, the stain can be detected for “days, weeks, months, [and even] years.” Crim–Swanson also acknowledged, “I don't know the exact cause or the exact actions that led to that mixture. I can [only] tell you that it is there.” Finally, and most importantly, Crim–Swanson conceded that the two DNA components of the stain could have been deposited on the comforter at different times. In short, Whinery's efforts to mitigate the importance of the DNA mixture were well thought out and obviously based on his specialized knowledge of the subject matter. We perceive no ineffectiveness.
Nevertheless, assuming that Whinery failed to effectively challenge the State's DNA evidence, Loring has failed to show prejudice. Loring does not explain how Whinery's failure to obtain independent DNA testing or an expert witness to testify at trial would have changed the outcome of the trial. While independent testing might have produced evidence in Loring's favor, it also might have verified that the State's results were accurate. As a result, we are left to speculate about what effect, if any, additional expert testimony would have had on the defense case. Moreover, as the trial court found, the State's forensic evidence actually lent credence to Loring's version of events because he asserted that C.H. was the sexual aggressor who masturbated on his bed. The jury could have been persuaded that C.H.'s bodily fluids were deposited in this way on an old seminal stain that was still present on Loring's comforter. In this scenario, the evidence of the DNA mixture was not indicative of Loring raping C.H. On the contrary, it was consistent with Loring's exculpatory account of the incident.
In summary, Loring has failed to establish that Whinery's actions fell below an objective standard of reasonableness or that he was prejudiced by Whinery's alleged deficiencies relating to the State's DNA evidence.
Trial Counsel's Presentation of Character Witnesses
Loring next contends that Whinery was ineffective because he presented two character witnesses, Henry Loring and Lakisha Johnson, to testify in the defendant's casein-chief “without adequate understanding of the law, without meaningful consultation with [his client], and without adequate preparation of the witnesses.” According to Loring, Whinery's ineffective representation caused the jury to learn about his prior convictions for theft and battery which damaged his credibility. The State, on the other hand, asserts that the character witnesses bolstered Loring's credibility which was a reasonable trial strategy. Additionally, while this testimony may have opened the door for admission of Loring's prior convictions, the State claims Loring has failed to show prejudice because Johnson testified that these convictions did not change her opinion of Loring's good character.
During the defense case, Loring's father, Henry, testified he was “shocked and surprised” about the rape allegation because it was out of character for Loring to commit such a crime. According to his father, Loring had always “been a real good kid ... never had any problems in school or anything with him hurting any kids,” and he never had any problems with prior girlfriends.
After Henry's direct examination, the State argued (outside the presence of the jury) that Henry's testimony rendered Loring's prior convictions for theft and battery admissible to impeach his character testimony. After a colloquy with counsel, the trial court permitted the prosecutor to inquire of Henry's knowledge of Loring's prior theft conviction. However, despite this ruling, the prosecutor did not question Loring's father regarding the prior crime of theft.
Loring's current girlfriend, Johnson, testified that Loring was a gentleman and she has never feared that “he was going to overpower [her],” “push [her] too far,” or “not take no for an answer.” After Johnson's testimony, the State (outside the presence of the jury) again requested permission to introduce evidence regarding Loring's prior convictions. The trial court ruled that, given Johnson's testimony, the State could question Johnson about her knowledge of the two convictions to ascertain whether her opinion of Loring's good character was changed.
The prosecutor then asked Johnson if she was aware that Loring had a prior battery conviction from 2005 and a theft conviction from 2001. Johnson testified she was unaware of the theft conviction but knew about the battery conviction and this fact did not change her opinion of Loring's character.
The trial judge found that Whinery's conduct in presenting the two character witnesses did not constitute ineffective assistance of counsel:
“Lakisha Johnson's testimony, first of all, according to counsel, his testimony, he advised and apprised the defendant of the risks involved in calling this particular witness. And the whole idea was to indicate to the jury that the defendant was not a violent sexual predator and did not commit these crimes. That's an extremely fine edge to tread by anyone.
“But according to the testimony, the defendant wanted his character witnesses to testify. This was I believe the second woman he was involved in a, oh, romantic relationship with that testified and I believe she was the last. I think his father testified, a prior woman in his life testified, and then Ms. Johnson testified.
“Even though the prior conviction came out, the witness's testimony reflected that—and I'm not sure—I can't be for sure if she knew about these convictions or not. But once she was apprised of them, she testified that it would not have changed her confidence in the character and nonviolent nature of the defendant in this case. Her conviction or her faith based upon her testimony never wavered. She remained steadfast in her opinion.
“And you're talking about three character witnesses and one—only one I believe involved prior convictions. His father testified. A former employer testified, and nothing but good things to say. And the other girlfriend firmly established the defendant's good character and that he was not a violent person. This one particular incident in isolation is not ineffective assistance of counsel, in this Court's opinion.”
The trial court found that Whinery understood the risks and benefits of presenting character witnesses to testify regarding Loring's character trait for nonviolence, especially with regard to relationships with women. After informing Loring of the risks inherent in the presentation of character witnesses, Whinery acceded to Loring's request that certain witnesses be called for the defense. In short, the trial court considered this a matter of trial strategy. Our review of the record persuades us that substantial competent evidence supports the conclusion that this trial strategy was not ineffective.
As explained by our court in State v. Black, No. 93,926, 2008 WL 2369789, at *8 (Kan.App.2008) (unpublished opinion), rev. denied 287 Kan. 766 (2008):
“Clearly, where the jury verdict in a sexual assault case hinges to a large extent upon a credibility battle between the victim and the defendant, evidence that the defendant has a reputation among female acquaintances of respecting the personal boundaries of those female friends and being considered safe and dependable ... could be highly relevant and material to the jury's assessment whether the defendant raped the victim....”
Whinery utilized this tactic at trial. At the evidentiary hearing, Whinery testified that while he believed there was a risk for opening the door to Loring's criminal background, he agreed to call Johnson as a character witness to show that Loring “was not [the] type of person to rape someone.” This judgment made by defense counsel was a matter of trial strategy which is virtually unchallengeable upon appeal. See Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009).
Loring, however, characterizes Whinery's actions as based upon an incorrect understanding of the law rather than a valid trial strategy. Yet, Whinery's testimony at the evidentiary hearing demonstrated a proper understanding of the risks and benefits of character evidence. Whinery appropriately advised his client of these risks, and the joint decision was made to take those risks in order to obtain the benefits of having testimony from Loring's girlfriend that he was not violent or overbearing in his relationships with women. We are reluctant to second guess this strategy.
Nevertheless, assuming Whinery's handling of the character testimony was ineffective, Loring has failed to show prejudice. As the trial court observed, when the prosecutor asked Johnson about Loring's prior convictions, Johnson did not waver in her opinion of his good character. Moreover, the convictions themselves were dated, and neither one related to a sexual assault. Perhaps for these reasons at trial the State did not dwell upon the prior convictions. On the other hand, Johnson's testimony, given her relationship with Loring was certainly relevant, consistent with Loring's testimony, and potentially persuasive.
Loring has failed to show Whinery's ineffectiveness in a matter of trial strategy. Additionally, assuming error, Loring has also failed to establish prejudice.
Trial Counsel's Failure to Limit or Exclude Certain Evidence
Next, Loring contends that Whinery was ineffective by failing to limit or exclude irrelevant, prejudicial, or misleading evidence. We will consider the evidence separately.
The Sword
According to Loring, after the incident with C.H., he received a call from J.H. about 2:30 in the morning. Loring explained that J.H .'s “first words were, you hit my sister,” and he then proceeded to tell Loring that he was “coming to get [him].” Shortly thereafter, Loring heard a knock on his front door. Certain that J.H. had come to harm him, Loring took a collector's sword with him to answer the door. Ultimately, Detective Gunzenhauser identified himself. When the front door opened, the detective observed Loring holding “a generic Samurai sword.” Detective Gunzenhauser told Loring to put the sword down, and Loring promptly complied.
On appeal, Loring contends that Whinery was ineffective because he did not object to the State's evidence that he was holding a sword when he answered his front door. According to Loring, this evidence was irrelevant and prejudicial because the State's only purpose in admitting this evidence was to suggest that he was “acting in a violent, threatening, or defensive manner.” The State, on the other hand, argues that this evidence was relevant “as to [Loring]'s demeanor after the crime.” The State also notes that Whinery was able to use this evidence to “portray C.H. and her brother as vigilantes.” As a result, the State argues that Whinery's failure to seek exclusion of the evidence did not qualify as constitutionally deficient representation.
The district judge found that the sword was relevant evidence, and because it was “an extremely minor piece of evidence” that actually bolstered Loring's claim that he was afraid of J.H., its admission was not prejudicial:
“But moving specifically to the sword, I doubt, frankly, the sword or the camera—these are factors, in the Court's opinion, that the jury probably paid very little, if any, attention to simply because they weren't noteworthy. They weren't of merit and they weren't argued strenuously by either side. Frankly, again, the fact that he answered the door with some generic type of Samurai sword again bolstered his story.
“The evidence showed that when he answered the door, he—he was hesitant to do so as he thought it might be someone on the victim's side trying to cause him physical harm. He answered the door. It just happened to be the police. And he certainly—he put it down and removed it immediately once he found out it was the police.
“He explained during his testimony and I think the victim's testimony and the brother, [J.H.]'s testimony support this particular theory. He explained that he was afraid of ... the victim in this case and of the victim's brother. He was afraid of someone coming over and harming him and that's why he had the sword. Apparently he talked I believe to the brother that night and used the sword when he answered the door in preparation to protect himself if, in fact, it was the brother.
“And they testified that they were extremely angry with the defendant. They wanted to exact revenge. If I'm not mistaken, the victim testified that shortly after the preliminary hearing, she was trying—she called the defendant, was trying to set him up for some sort of a physical beating.
“It was apparent to everybody in the courtroom that they were angry and that they were angry with the defendant and had threatened him with physical abuse. So the fact that he answered the door with the sword certainly was reasonable and understandable under the circumstances, but, again, was an extremely minor piece of evidence in this case and—and agree it was relevant evidence. It was probative.”
The trial court found this evidence was relevant and probative. Given this finding, we question whether Whinery's objection to the evidence would have had any effect on the trial court's admission of it. We discern that the evidence was of limited relevance. But we agree with the trial court's conclusion that the sword played a very minor role in this case.
Most importantly, Loring has not persuaded us that the admission of this evidence was prejudicial. As the trial court found, the holding of the sword corroborated Loring's testimony that J.H. called and threatened him with harm. Moreover, Detective Gunzenhauser confirmed that Loring immediately put down the sword upon seeing the detective and “[h]e basically told me anything that he could do to help clear this up, he was willing to do that.” The gist of Detective Gunzenhauser's testimony was that, despite the initial showing of the sword, Loring was cooperative with the investigation. Given all these facts and circumstances, prejudice is not apparent.
J.H.'s Testimony
Loring also asserts that Whinery was ineffective by not objecting to J.H.'s testimony that after he received the call from his sister following the incident he was angry and wanted Loring “ ‘to feel the pain that I felt and my sister felt,’ “ which Loring claims was “utterly irrelevant.”
The trial judge found:
“You indicated it was error for him I believe not to object to certain portions of [J.H.]'s testimony. That shouldn't have been allowed. Well, I disagree. I believe that the mental state of the victim immediately after the incident was certainly relevant, certainly probative and he did testify to that. He further provided a reason for the defendant to be leery of answering his door unarmed .”
Although Loring mentions J.H.'s brief testimony, he never specifically explains why this evidence was irrelevant or how it prejudiced his defense. A point raised incidentally in a brief and not argued therein is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Moreover, failure to support an argument with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v.. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
J.H.'s testimony regarding the call he received from his sister shortly after the incident was both relevant and probative. It supported the State's theory that C.H. was raped because it informed the jury that she was very upset. Moreover, the fact that J.H. also became upset during the phone call showed that J.H. perceived that C .H.'s account was a very serious matter. We find no ineffectiveness or prejudice.
The Video Camera
Loring maintains that Whinery was ineffective because he did not object to the State's evidence that the police found a video camera in his bedroom, which was pointed toward his bed. Loring claims this evidence was “wholly irrelevant” and prejudicial because the jury might infer that he used the camera to film sexual activities. The trial judge disagreed with this assertion and found that the video camera was of little importance. The State notes that the video camera was depicted in crime scene photographs which showed the condition of the crime scene.
We find no ineffectiveness. The video camera was depicted in the crime scene photographs which were relevant to show how the scene looked shortly after the crime. Because the video camera was visible on otherwise admissible evidence, it was reasonable for Whinery to not object to Detective Gunzenhauser's favorable testimony that the camera contained nothing of an incriminating nature. In fact, the detective explained that he collected the video camera because he thought it might contain a recording of the crime. But when he examined it later, he did not find “anything significant on it.” This testimony effectively mitigated any speculation the jury may have had regarding Loring's use of the camera in general.
Loring has failed to establish Whinery's ineffectiveness or prejudice with regard to this evidence.
Loring's Refusal to Provide a DNA Sample
At trial, the State introduced testimony that Loring declined to submit to a saliva swab for DNA purposes. Loring explained that although he wanted to cooperate with the police and prove his innocence, he did not feel comfortable providing a DNA sample because his father had always told him not to consent to such requests because “[y]ou need an expert for them [ sic ] type of things.”
In his motion for new trial, Loring maintained that Whinery failed to file a pretrial motion or make an objection at trial to the State's argument that Loring's refusal to provide a DNA sample indicated consciousness of guilt. Loring claimed this testimony and argument violated his rights under the Fourth and Fifth Amendments to the United State Constitution.
In ruling against Loring's claim, the trial judge found:
“I think it's fairly clear not only in Kansas, but apparently in federal courts, as the citations given by both sides do establish that defendant's refusal to submit to a DNA sample doesn't violate his 4th, 5th, 6th or 14th Amendment rights under the circumstances of this case. There's no error there, gentlemen.”
On appeal, however, Loring abandons any claim of a Fifth Amendment violation and simply points out that “Loring had a lawful Fourth Amendment Right to decline to produce a DNA sample.” Inexplicably, while Loring insists that Whinery should have objected on Fourth Amendment grounds to evidence of Loring's refusal to produce this evidence and the State's arguments about it, he never explains how this evidence or argument violated his rights. Moreover, he provides no citation to authority in support of his argument that it is ineffective assistance of counsel to not object under these circumstances. As discussed earlier, a point raised incidentally in a brief and not argued therein is deemed waived and abandoned, and an appellant's failure to support an argument with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. See McCaslin, 291 Kan. at 709;Berriozabal, 291 Kan. at 594. This issue is not properly before us on appeal.
Whinery testified that it was part of his trial strategy to introduce the fact that Loring cooperated with the police by consenting to a search of his apartment and the waiver of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Whinery further explained that Loring's cooperation with the police was part of his trial strategy to show innocence. To the extent Loring's refusal of a saliva sample worked against this defense strategy, Whinery believed that Loring's explanation for the refusal was reasonable. On this record, we are unable to find error. Moreover, considering all of the circumstances, Loring has failed to prove prejudice sufficient to affect the validity of the verdict.
The State's Use of the Words “Victim,” “Rape,” and “Assault”
Next, Loring asserts that Whinery was ineffective because he failed to object to the State's continued use of the words “victim,” “rape,” and “assault.” The State responds that these terms fell within the wide latitude afforded to a prosecutor.
“Because prosecutors have a duty to properly present the State's cases with earnestness and vigor and to use every legitimate means to bring about just convictions,” prosecutors have wide latitude to craft arguments which draw reasonable inferences from the evidence. State v. Foster, 290 Kan. 696, 723, 233 P.3d 265 (2010). In particular, our Supreme Court has found that a prosecutor's use of the words “ ‘extreme brutality,’ “ “ ‘complete terrorization, ... sexual depravity,’ “ and “ ‘unspeakable acts' “ to describe alleged crimes was “within the wide latitude given to prosecutors” when such words are based upon the evidence. 290 Kan. at 723–24.
The State's use of the words “rape,” “assault,” and “victim” was clearly based upon the State's view of the evidence which supported these descriptive terms. Because the prosecutor's use of these terms was within the wide latitude allowed to a prosecutor in making arguments to the jury, we find no error in Whinery's failure to object.
Testimony Regarding the Common Emotional Reactions to Sexual Assault
Loring asserts that Whinery was ineffective because he failed to object to testimony by the nurse who assisted in C.H.'s rape examination regarding a brochure C.H. received at the hospital, which described common emotional reactions to sexual assault. Without elaboration, Loring maintains that this testimony was improper because it amounted to “indirect psychiatric testimony about the characteristics displayed by rape victims.” In support of this argument, Loring references State v. Villanueva, 274 Kan. 20, 49 P.3d 481 (2002).
As the State asserts, this testimony is clearly distinguishable from Villanueva. In Villanueva, our Supreme Court reversed the defendant's conviction because the trial court erroneously admitted a social worker's testimony that the “ ‘classic characteristics of a victim or a rape’ were documented in [the victim's] records” when the social worker was “unqualified to diagnose or to testify as an expert witness on rape trauma syndrome.” Villanueva, 274 Kan. at 32–33.
Unlike Villanueva, the nurse did not provide expert testimony that C.H.'s symptoms showed that she had been raped. She merely related the discharge instructions she provided to C.H., which included common emotional reactions to rape. The nurse never suggested that following C.H.'s hospital visit, C.H. exhibited any of these symptoms or demonstrated classic signs of rape trauma syndrome.
Loring has failed to establish Whinery's ineffectiveness on this basis.
Trial Counsel's Failure to Admit a Photograph
Loring contends that Whinery's representation was ineffective because he failed to admit a critical piece of evidence—a photograph which, according to Loring, proved that he knew Detective Willie Jenkins.
During Detective Gunzenhauser's interview, Loring told the detective that his stepfather was Willie Jenkins, a police detective with whom Detective Gunzenhauser had worked for many years. As a result, Detective Gunzenhauser called Detective Jenkins, who indicated that Loring was not his stepson.
At trial, Loring explained the discrepancy. He testified that Mark Jenkins, the father of C.H.'s baby, is the stepbrother of Syeria Haynes, his girlfriend at the time of the alleged rape, and the son of Detective Willie Jenkins. Loring clarified that while he was not related by blood, he considered Detective Jenkins' son, Mark, to be his stepbrother, as he had recently become engaged to Haynes, Mark's stepsister. While Loring conceded that Detective Jenkins might not have considered him a stepson, he insisted that Detective Jenkins was acquainted with him.
At the hearing on Loring's motion for new trial, Whinery testified that prior to trial Loring told him that he had a picture of himself and Detective Jenkins, but according to Whinery, Loring did not provide him with the picture until sometime after the close of evidence and before the jury rendered its verdict. Although Whinery showed the photograph to the prosecutor, he did not consider asking for a mistrial or requesting that the defense case be reopened. On the other hand, Loring testified that he provided Whinery with the photograph of himself with a group of people, including Detective Jenkins, on the second day of his trial.
In ruling at the evidentiary hearing, the trial judge found:
“The issue about Detective Jenkins, it's not the first time someone who's been accused of a crime tries to ameliorate the circumstances by indicating they are a friend of or related to law enforcement.... But, in any event, the defendant did tell Detective [Gunzenhauser] that he was related to Detective Willie Jenkins.... Gunzenhauser I believe testified that he called Jenkins and Jenkins said he didn't know the defendant.
“What is telling I think here and can be applied to either side is neither side called Detective Jenkins as a witness in this case. I can't remember, and you folks will correct me if I'm wrong, but the defendant had a picture, if I'm not mistaken, of Detective Jenkins and himself in a—posed at some sort of an occasion or celebration. I can't remember if it went into evidence or not, but I believe it was testified to or about by the defense. Both sides could have called this detective to clear up whatever discrepancy it was, but the detective had absolutely nothing to do with the guilt or innocence of the defendant, was not a material witness and it was mentioned in passing.
“But, frankly, I think and it was this Court's observation that the State had every right and every reason to call Detective Jenkins, put him on the witness stand and have him say, I don't know this guy or I only know him in passing through a relationship. They didn't do that. A reasonable inference from that is perhaps they were hiding something or perhaps they had something that they didn't want the jury to know about Detective Jenkins.
“The defendant took great pains and went to great lengths under still cross-examination on this issue and maintained a believable relationship between he and Detective Jenkins. I suspect he probably shouldn't have mentioned it in the first place. But I believe it had little or no impact on the final outcome of this case. He explained the relationship and I believe the jury and certainly the Court is satisfied.”
The trial court did not make a finding regarding whether or not Whinery was in possession of the photograph prior to the close of evidence or whether Whinery should have sought a mistrial or request to reopen the defense case. Loring does not provide the legal basis for either request; he merely asserts that Whinery should have taken these actions. We know of no basis that a mistrial would have been proper. While a request to reopen the defense case may have been appropriate, Loring does not provide any support or analysis to show this request, if made, would have been successful. Moreover, reopening the defense case could have focused undue attention to this collateral matter which certainly was not instrumental to Loring's defense.
Having reviewed the record, we are persuaded there is substantial competent evidence to support the trial court's determination that the relationship between Loring and Detective Jenkins was a collateral matter of minor significance. Moreover, we question the importance of the photograph which depicts a group of people at a Christmas party which apparently included Loring and the detective. The photograph did not prove that Loring was the detective's stepson or that he knew Detective Jenkins. Under these circumstances, Whinery's failure to seek a mistrial or attempt to reopen the defense case was not ineffective or prejudicial.
Trial Counsel's Closing Argument
Loring claims that Whinery was ineffective because he conceded Loring's guilt during closing arguments and failed to “act as a zealous advocate” by discussing the “evidence or facts of innocence.” The State counters that Loring has taken Whinery's arguments out of context and that Whinery was attempting to “personally vouch for his client's innocence[;] ... an effective trial strategy.”
At the beginning of his closing argument, after briefly explaining the jury's role as “the final arbiters of justice,” Whinery stated:
“It can be granted that forcing a woman to engage in intercourse against her will, as the prosecutor has alleged happened to [C.H.], is one of the cruelest, ugliest, and most insensitive outrages that can happen to a woman. When I first read what [C.H.] told the police, I immediately felt sorry for her and [I was] shocked. I would have agreed that Mr. Loring was guilty and hoped a jury such as yourself would find him guilty and that [the trial judge] would show no mercy in sentencing.
“But as time went by, I was able to gain more evidence and understand the facts of the case. I began to wonder did Mr. Loring indeed commit the crime of forceful rape against [C.H.?]”
Then, after discussing the evidence in the light most favorable to Loring, Whinery stated:
“Ladies and gentlemen of the jury, you've heard the testimony of the witnesses, observed their manner and credibility. I cannot alter your judgment of the many conflicting stories, what the many witnesses' motivations are for their testimony that have taken place this time in court, and whose accounts are accurate and whose accounts are false. The only thing I can leave the members of the jury with is that I personally have reasonable doubt as to what happened. Just like [the State] thinks that he raped her, I don't think he did, which is why I agreed to be hired by Mr. Loring and act as his advocate at this trial.” (Emphasis added.)
At the evidentiary hearing on Loring's motion, Whinery explained that his strategy was to “impress upon the jurors that things aren't always as they seem” and convey his personal opinion as to Loring's innocence to the jury, i.e., as someone who knows Loring, he did not “believe [Loring was] a rapist.”
The trial judge found Whinery's argument to be an effective trial strategy:
“Defense counsel's closing, both sides have an awful lot of leeway in using tactics to get their message across. To point to that particular comment or statement and ignore the rest of counsel's efforts in this case is not only unfair, but that particular strategy is not an uncommon strategy. It's used in literature and movies an awful lot and counsel, in this Court's opinion, pulled it off. It was explained in a reasoned fashion and it was bolstered by his client's testimony. I believe it also bolstered his client's image in the eyes of the jury.
“It was certainly a plausible tactic. He, in effect, was giving his, which wasn't objected to if I'm not mistaken, personal opinion about the innocence of his client, the credibility of his client, and the character of his client. While there are other ways to do that, particular manner in which he tried it is not, in this Court's opinion, ineffective assistance of counsel.”
Of course, it is not proper for an attorney to “ ‘state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.’ [Citation omitted.]” State v. Brown, 295 Kan. 181, 212, 284 P.3d 977 (2012). But, as the trial court found, in the absence of an objection by the State, Whinery's strategy was an effective tactic. As the State highlights, this strategy could have been very “appealing to [the] jurors in the sense that it allowed them to have sympathy for the victim but rely on the fact that a licensed attorney would not convict the defendant based upon a reasonable doubt standard.” Loring's claim of ineffectiveness is without merit.
Cumulative Effect of Trial Counsel's Errors
Finally, Loring argues that the cumulative effect of Whinery's trial errors requires the reversal of his conviction because, in their totality, Whinery's deficiencies “irreparably damaged [his] defense[,] significantly undermined his ... credibility before the jury[,]” and deprived him of the right to a fair trial.
“Cumulative error, considered collectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. [Citation omitted.]” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).
When the record fails to support the errors raised on appeal by the defendant, cumulative error will not be found. State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Furthermore, “[o]ne error is insufficient to support reversal under the cumulative effect rule. [Citation omitted.]” 288 Kan. at 378.
Based upon our careful review of the record, substantial competent evidence supports the trial court's finding that Whinery “made appropriate objections and arguments throughout the trial, steadfastly maintained his client's innocence[,] and ... zealously fought to protect his substantial criminal rights.” Accordingly, because Loring has failed to show any ineffectiveness by his defense counsel at trial, Loring's claim that cumulative errors require the reversal of his conviction is without merit.
Affirmed.