Thompson v. State

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,058

MARC J. THOMPSON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


SYLLABUS BY THE COURT

1.
A K.S.A. 60-1507 motion is treated as a pleading for purposes of amendment
under K.S.A. 60-215.

2.
Under the version of K.S.A. 60-215 in effect before the statute's amendment on
July 1, 2010, authority to amend under K.S.A. 60-215(a) is distinct from timeliness of
claims under the relation back provision of K.S.A. 60-215(c).

3.
K.S.A. 60-215(a) permits amendment as a matter of right and amendment by leave
of court. If amendment to a K.S.A. 60-1507 motion is permitted, the timeliness of an
amended claim is subject to K.S.A. 60-215(c), i.e., relation back is permitted only if the
new claim is similar in time and type to the original claim, meaning it arose "out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading."


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4.
On the record in this case, movant's amended claim for ineffective assistance of
appellate counsel did not relate back to the time of the filing of his original K.S.A. 60-
1507 motion.

5.
On the record in this case, movant's claim that he was denied effective assistance
of trial counsel under the Sixth Amendment to the United States Constitution because of
a failure to request an independent psychological evaluation of the victim, a stipulation to
admission of the victim's videotaped interview, an unknowing and involuntary waiver of
his right to confrontation, and/or a failure to object to evidence that movant pulled a knife
on the victim's mother is without merit.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 12, 2009.
Appeal from McPherson District Court; CARL B ANDERSON, JR., judge. Judgment of the Court of
Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Opinion filed
December 30, 2011.

Meryl B. Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Jamie L. Karasek, deputy county attorney, argued the cause, and Ty Kaufman, county attorney,
and Steve Six, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

BEIER, J.: Marc Thompson appeals the denial in part and dismissal in part of his
K.S.A. 60-1507 motion.

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Thompson argues that the court should have permitted him to pursue an amended
claim that his counsel on direct appeal was ineffective. He also argues that his trial
counsel provided constitutionally deficient representation by failing to request an
independent psychological evaluation of the victim, stipulating to admission of the
victim's videotaped interview, waiving his right to confrontation by failing to put the
victim on the witness stand, and failing to object to evidence that Thompson pulled a
knife on the victim's mother. Even if none of these errors independently requires reversal,
Thompson argues, the cumulative effect of trial counsel's poor performance does.

We conclude that Thompson was properly permitted to amend his K.S.A. 60-1507
motion with leave of court to add claims of the same time and type as those advanced in
the original motion, while untimely claims of a different time and type were correctly
dismissed. Further, Thompson's allegations of ineffective assistance of counsel are
without merit and not cumulative error requiring reversal.

FACTUAL AND PROCEDURAL BACKGROUND

Thompson was convicted by a jury of aggravated indecent liberties for conduct
occurring in July 2002 with his then 4-year-old daughter, S.T.

Neither side called S.T. to testify at trial. The parties agreed to the State's
admission of a videotape of S.T.'s interview by Stephanie Linka, a forensic interview
specialist for Sacramento County, California. Before the jury was shown the videotape,
the district judge asked Thompson on the record if he personally agreed with that
approach. Thompson confirmed that he did.

During the interview, in addition to describing Thompson's inappropriate sexual
conduct with her, S.T. said that she was being interviewed because Thompson had pulled
out a knife and tried to cut her mother. Several breaks were taken during the recording of
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the videotape, during which the camera was turned off. Linka testified at trial that, during
the breaks, she went into another area and spoke to a detective while S.T. played in a
separate area.

Ruth Porisch, a social worker for Prairie View treatment center in McPherson,
testified for the defense on the power of suggestion in interviews of child sexual abuse
victims. However, the district judge did not permit Porisch to testify about any possibility
that S.T. was coached during the breaks in the videotaped interview.

Thompson's trial counsel succeeded in eliciting testimony from S.T.'s mother on
cross-examination that S.T. had engaged in prior sexual touching with her 5-year-old
cousin, an incident S.T.'s mother also had apparently described to a detective. During
examination by the prosecutor, S.T.'s mother testified that Thompson's sexual abuse of
his daughter came to light in connection with a law enforcement investigation in
California. Thompson's trial counsel followed up on that point during cross-examination
of S.T.'s mother, and she admitted to using methamphetamine 2 days before Thompson
was incarcerated in California. On redirect, the prosecutor had her clarify that
Thompson's California incarceration was unrelated to S.T.'s allegation in this case.
Thompson's trial counsel did not object to this exchange between the prosecutor and
S.T.'s mother.

Thompson appealed his conviction, and the Court of Appeals affirmed, handing
down its mandate on November 3, 2005.

On November 2, 2006, Thompson filed the K.S.A. 60-1507 motion underlying this
appeal. He alleged ineffective assistance of trial counsel, violation of his due process
rights, and cumulative error. The State filed no written response to the motion.

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On April 20, 2007, Thompson sought to amend his K.S.A. 60-1507 motion to add
new arguments for the ineffectiveness of his trial counsel, as well as prosecutorial
misconduct and ineffective assistance of appellate counsel claims.

As a result of a May 7, 2007, pretrial hearing and a June 19, 2007, State motion to
dismiss all amended claims as outside the 1-year deadline set out in K.S.A. 60-1507(f),
the district judge limited live testimony at the evidentiary hearing on Thompson's K.S.A.
60-1507 motion to Thompson's trial counsel and Thompson himself. After some back and
forth on a K.S.A. 60-455 issue, the judge also ultimately ruled that Thompson would be
permitted to present evidence on all of his allegations in support of ineffective assistance
of trial counsel. The judge dismissed as untimely that part of Thompson's amended
motion alleging prosecutorial misconduct and ineffectiveness of appellate counsel.

The January 2008 evidentiary hearing focused principally on whether trial
counsel's performance was constitutionally deficient for failure to have S.T. evaluated,
for stipulating to admission of the videotaped interview, and for failure to call S.T. to
testify live at trial. Trial counsel testified that he had discussed whether to put S.T. on the
stand with Thompson, and Thompson had expressed concern that S.T. would carry the
burden of having put her father in prison. Counsel denied refusing to put S.T. on the
stand. He also testified that he and Thompson never discussed having S.T. examined by
another expert and said that he did not pursue an independent psychological evaluation of
S.T. because she was out of state and under the control of her mother, Thompson's ex-
wife. Trial counsel expressed some suspicion about the videotaped interview because of
the breaks, and he said he called Porisch to testify regarding the unreliability of the
interview procedure for that reason. Neither party at the K.S.A. 60-1507 evidentiary
hearing asked trial counsel about his decision not to object to the testimony of S.T.'s
mother about Thompson's incarceration or to S.T.'s mention during the videotaped
interview of Thompson pulling out a knife and attempting to cut her mother.

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Thompson testified that he remembered telling his trial counsel that he wanted his
children to testify at trial, to which counsel replied: "I'm not putting them on the stand
and you can fire me if you don't like it." Thompson also testified that counsel told him the
videotaped interview of S.T. had to be admitted and would probably lead to conviction.
Thompson did not recall discussing the use of any other experts with his counsel, but he
thought a psychologist should have been hired to testify about the psychology, sexuality,
and memory of children. Thompson also testified that his counsel made no attempt to
stop the prosecutor from introducing evidence of Thompson's prior incarceration.

The district judge expressly found that Thompson's testimony was less credible
than his counsel's, and ruled:

"I think the main claim here is the claim that the little girl didn't take the stand. I find the
defendant's testimony on that issue not to be credible. I find [counsel's] testimony to be
credible. . . . I believe [counsel] when he says that was discussed with his client and he
chose not to do it. The rest of the matter is just flyspecking that is done in hindsight that
we could do on any trial. And I don't see anything that even if it would have been
different or [counsel] would have objected on the other matters that would have caused
any kind of a change in the ultimate verdict that was rendered anyway. The bottom line is
the little girl was here, capable of testifying, available to testify I guess I should say, and
it came down to her word that the jury believed. That and the testimony of the mother.
And all these other matters that he complains about in my opinion would not have
changed the outcome even if [counsel] had objected.
. . . .
"The one point again I want to re-emphasize that that wouldn't be true is if I
believed that [counsel] purposely did not put this little girl on. But the fact of the matter is
[counsel] has testified that wasn't the case. That was the decision of the defendant not to
do so. And I, that's a trial tactic anyway. We don't know but what if the little girl would
have taken the stand would have hurt his case even more. Could have . . . gone the
opposite way. There can be a lot of sympathy, a six year old girl taking the stand. I don't
know what the reasons were that the defendant chose not to or agreed that the child
shouldn't take the stand. But I, based on [counsel's] testimony that that was discussed, it
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was the trial tactic, and I'm simply unwilling to find on that point that [counsel] is
responsible for that as opposed to the defendant."

Thompson appealed the district judge's ruling on the merits of his motion based on
ineffective assistance of trial counsel. He also challenged the district judge's dismissal of
parts of his amended motion as untimely. The Court of Appeals panel affirmed the
district judge's rulings.

We accepted Thompson's petition for review on the same issues. At oral argument
before this court, Thompson's counsel abandoned the argument that Thompson should
have been permitted to pursue his prosecutorial misconduct claim. His counsel also
clarified that the only K.S.A. 60-455 evidence that Thompson was alleging should have
been subject to a defense objection was S.T.'s reference during her videotaped interview
to the knife incident.

DISCUSSION

Amendment Under K.S.A. 60-215(a) and Timeliness Under K.S.A. 60-215(c)

We first address the procedural question before us: Should Thompson have been
permitted to pursue his claim that his appellate counsel was ineffective?

Under the 1-year limitations period of K.S.A. 60-1507(f), Thompson had until
November 3, 2006, to pursue K.S.A. 60-1507 relief. His original November 2, 2006,
motion alleging ineffective assistance of trial counsel beat that deadline; but his April 20,
2007, attempt to amend his motion fell far outside the time limit. On this petition for
review, Thompson argues that he should have been permitted to pursue his amended
claim that his appellate counsel was ineffective because the claim related back to the time
of the filing of the original motion under the version of K.S.A. 60-215(c)(1) then in
8

effect. At that time, the statute read: "An amendment of a pleading relates back to the
date of the original pleading when . . . [t]he claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be
set forth in the original pleading." K.S.A. 60-215(c).

An appellate court generally reviews a district judge's decision on a motion to
amend pleadings for abuse of discretion. Rice v. State, 43 Kan. App. 2d 428, 433, 225
P.3d 1200 (2010) (citing Clevenger v. Catholic Social Service of the Archdiocese of
Kansas City, 21 Kan. App. 2d 521, 524, 901 P.2d 529 [1995]); see Stehlik, Executor v.
Weaver, 206 Kan. 629, 636, 482 P.2d 21 (1971). But we review a district judge's legal
conclusions, on a K.S.A. 60-1507 motion and in other settings, under a de novo standard.
State v. Gonzales, 289 Kan. 351, 358-59, 212 P.3d 215 (2009).

We see the issue in this case somewhat differently from Thompson. Rather than
purely a question of whether the district judge abused his discretion by refusing to allow
amendment, the question is whether the district judge erred as a matter of law by
dismissing the amended claim for ineffective assistance of appellate counsel. We review
district court legal rulings de novo. See Gonzales, 289 Kan. at 359. In addition, our
resolution of this case requires us to interpret K.S.A. 60-1507, K.S.A. 60-215, and
Supreme Court Rule 183 (2010 Kan. Ct. R Annot. 255). Interpretation of statutes and
Supreme Court rules raises questions of law reviewable de novo. See State v. Arnett, 290
Kan. 41, 47, 223 P.3d 780 (2010) (statutes); Shamberg, Johnson & Bergman, Chtd. v.
Oliver, 289 Kan. 891, 901, 220 P.3d 333 (2009) (rules).

For civil actions, K.S.A. 60-215 authorizes and controls relation back of pleading
amendments. As we discussed in Pabst v. State, 287 Kan. 1, 192 P.3d 630 (2008), the
version of K.S.A. 60-215, specifically its subsection (a), in effect at the time of
Thompson's motion and attempted amendment in district court, did not permit K.S.A. 60-
1507 movants to amend their motions as of right.
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In Pabst, movant Tod A. Pabst originally alleged 11 grounds for relief, including a
claim for ineffective assistance of trial counsel. At the time the motion was filed, Pabst's
attorney informed the court that a full investigation had not been completed and that a
supplemental pleading would be filed later, with leave of the court. Nothing additional
had been filed by the time the attorney withdrew from the representation nearly 11
months later. Pabst, 287 Kan. at 2-3.

Approximately 6 months after the original attorney's withdrawal, Pabst's new
attorney, without formally seeking leave of the court, filed a pleading titled "Amended
Petition Pursuant to K.S.A. 60-1507." The "Amended Petition" set forth 16 grounds of
relief, 10 of them different from those in the original motion. The new claims alleged
new grounds for ineffective trial counsel, ineffective appellate counsel, and cumulative
errors of trial counsel.

The State sought dismissal of all claims not raised in the original motion under the
time bar of K.S.A. 60-1507(f). Pabst, 287 Kan. at 3.

In response, Pabst argued that he had an absolute right to amend his motion under
K.S.A. 60-215(a), which then read:

"A party may amend the party's pleading once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one to which no responsive
pleading is permitted and the action has not been placed upon the trial calendar, the party
may so amend within 20 days after it is served. Otherwise a party may amend the party's
pleading only by leave of court or by written consent of the adverse party; and leave shall
be freely given when justice so requires."

Assuming the authority to amend as a matter of right, Pabst then claimed entitlement to
relation back under K.S.A. 60-215(c). In his view, because his amended claims were of
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the same type as the claims in his original motion, they should be viewed as timely under
K.S.A. 60-215(c)(1), which requires that a claim asserted in an amended pleading arise
"out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading."

The district court judge disagreed with Pabst, dismissing the 10 new allegations
under the 1-year statute of limitations in K.S.A. 60-1507(f). The district judge reasoned
that Kansas law did not require the State to answer or otherwise plead to Pabst's K.S.A.
60-1507 motion and that it was presumed Pabst would set out all of the grounds for relief
upon which he was relying in the original filing. Because no authority for amendment as
a matter of right existed, relation back could not save any new ground for relief not stated
in Pabst's original motion. The district court then proceeded on the initial claims and the
grounds stated for them in the original motion, even permitting Pabst to rely upon
grounds he attempted to abandon by amendment. After an evidentiary hearing, the district
court denied the motion.

On appeal, we first addressed Pabst's argument that he was entitled to amend his
K.S.A. 60-1507 motion as a matter of right.

Although K.S.A. 60-215 referred to amendment of a "pleading" while a K.S.A.
60-1507 proceeding was launched by a "motion," we admitted that Rule 183(a) (2010
Kan. Ct. R. Annot. 255) tended to obscure the technical distinction between the terms by
stating that a K.S.A. 60-1507 motion constituted "an independent civil action which
should be separately docketed." This blurred distinction meant that a K.S.A. 60-1507
motion could be treated as a "pleading" within the meaning of K.S.A. 60-215. Pabst, 287
Kan. at 23.

Nevertheless, Rule 183 also provided that the rules of civil procedure were to
govern K.S.A. 60-1507 proceedings only "insofar as applicable." (2010 Kan. Ct. R.
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Annot. 255). And neither of the time periods in which K.S.A. 60-215(a) authorized
amendment as a matter of right were applicable in Pabst's case: The amendment was not
made either (1) before a responsive pleading was served, or (2) within 20 days of service
of the original pleading because a responsive pleading was not permitted. In a K.S.A. 60-
1507 action, because a responsive pleading was permitted but not required, neither time
period ever arose. Pabst, 287 Kan. at 23-24.

Having disposed of Pabst's argument that he was entitled to amend as of right, we
then implicitly treated his attempted amendment as one sought with leave of court, the
other scenario envisioned by K.S.A. 60-215(a) (Furse) and the one actually anticipated by
Pabst's original counsel at the time the initial motion was filed. Pabst, 287 Kan. at 24-25.
Assuming leave to amend was granted, timeliness of the amended claims remained in
issue, and the question became whether the amended claims related back to the time of
the original motion under K.S.A. 60-215(c). Pabst, 287 Kan. at 25. In short, K.S.A. 60-
215(a) dealt with authority to amend; and K.S.A. 60-215(c) dealt with timeliness of any
amended claims made as a matter of right or with leave of court.

On timeliness, we considered the district court's examination of the body of law
regarding relation back developed under the federal habeas statute, 28 U.S.C. § 2255
(2000) (amended 2008). In particular, we pointed to Mayle v. Felix, 545 U.S. 644, 650-
51, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005), in which the United States Supreme Court
held that an amended habeas petition did not relate back and thus could not escape a 1-
year time limitation. The Mayle amendment asserted a new ground for relief, supported
by facts differing in both time and type from those in the original pleading. (Emphasis
added.) Pabst, 287 Kan. at 24-25 (citing Mayle, 545 U.S. at 650-52 [challenge to
admission of witness statements under Confrontation Clause, challenge to admission of
defendant's statement as violation of Fifth Amendment do not share common core of
operative fact]).

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Applying a similar time and type test in Pabst's case—essentially equivalent to the
plain language of K.S.A. 60-215(c)(1) requiring any amended claims to arise "out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading"—we ultimately concluded that the district court did not err by disallowing
relation back for seven of Pabst's ten new claims. These seven were based on grounds
different from those asserted in the original motion, while the remaining three new claims
were effectively addressed by the hearing on the original motion. Pabst, 287 Kan. at 25.

In this case, Thompson followed a path similar to Pabst's. He attempted to amend
as of right, which was not possible under K.S.A. 60-215(a). But Thompson was free to
amend with leave of court, and the district judge was encouraged to grant such leave
freely when justice required it. This was, in effect, exactly what the district judge did. He
permitted some of the amended claims to go forward, those that were of the same time
and type as those raised in Thompson's original motion, i.e., those that arose "out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading" under K.S.A. 60-215(c). He dismissed those that were not timely under K.S.A.
60-215(c), because they were not of the same time and type as those in the original
motion, and this dismissal properly included the claim that appellate counsel was
ineffective. The timing of an appeal, as opposed to trial representation, and the function
assigned to appellate counsel, as opposed to trial counsel, differ. This is true even when
the counsel is the same person in both phases of the proceedings. An allegation that trial
counsel has rendered ineffective assistance is legally distinct from an allegation that
appellate counsel has done likewise.

It is apparent that our Court of Appeals has struggled with how to treat attempted
K.S.A. 60-215(a) amendments to motions filed under K.S.A. 60-1507 and whether to
allow relation back to make certain claims timely under K.S.A. 60-215(c). See Rice v.
State, 43 Kan. App. 2d at 438-39 (permitting relation back of claim of ineffective
appellate counsel to timely claim of ineffective trial counsel despite invocation of Pabst
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time and type test; recognizing difficulty from differing applicable standards); Ludlow v.
State, 37 Kan. App. 2d 676, 683-84, 157 P.3d 631 (2007) (equating amendments to
K.S.A. 60-1507 motions to impermissible successive motions under K.S.A. 60-1507[c]
and Supreme Court Rule 183[d]; disallowing amendment, relation back); Hill v. State,
No. 103,386, 2011 WL 588617, at *1-2 (Kan. App. 2011) (unpublished opinion) rev.
denied 291 Kan. ___ (April 25, 2011) (distinguishing between amendment to original
K.S.A. 60-1507 motion on one hand, successive motion filed after original motion denied
on other); see Walker v. State, No. 101,431, 2010 WL 2545645 (Kan. App. 2010)
(unpublished opinion) (applying time and type test to limit relation back to certain claims
identical to those in original motion).

Our decision today clarifies that, under the version of K.S.A. 60-215 in effect
before its amendment on July 1, 2010, authority to amend under K.S.A. 60-215(a) is
distinct from timeliness of claims under the relation back provision of 60-215(c). Two
avenues of amendment are available under K.S.A. 60-215(a), one as of right that is
inapplicable to K.S.A. 60-1507 motions, and one with leave of court that is applicable to
K.S.A. 60-1507 motions, as well as other pleadings. If an amendment to a K.S.A. 60-
1507 motion is permitted, the timeliness of amended claims is subject to the Pabst time
and type test enunciated in K.S.A. 60-215(c), i.e., relation back is permitted only if the
new claims arose "out of the conduct, transaction, or occurrence set forth or attempted to
be set forth in the original pleading." We disapprove pronouncements in prior Court of
Appeals cases to the extent they are inconsistent with this rubric.

Merits of Ineffective Assistance of Trial Counsel Claim

Thompson asserts that his trial counsel provided ineffective assistance in violation
of the Sixth Amendment to the United States Constitution in four ways: (1) by failing to
request an independent psychological evaluation of the victim, (2) by stipulating to
admission of the victim's videotaped interview, (3) by waiving his right to confrontation
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by failing to put the victim on the witness stand, and (4) by failing to object to evidence
that Thompson pulled a knife on the victim's mother. Thompson argues that these errors,
both individually and cumulatively, require reversal and remand for new trial.

A claim of ineffective assistance of trial counsel presents mixed questions of law
and fact requiring de novo review. State v. Adams, 292 Kan. 151, 167, 254 P.3d 515
(2011) (citing Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 [2009]). To support a
claim of ineffective assistance of counsel, it is incumbent upon a defendant to prove that
(1) counsel's performance was deficient, and (2) counsel's deficient performance was
sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State
v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004); see also State v. Davis, 277 Kan.
309, 314, 85 P.3d 1164 (2004); State v. Orr, 262 Kan. 312, 317, 940 P.2d 42 (1997);
State v. Rice, 261 Kan. 567, 598-603, 932 P.2d 981 (1997) (quoting Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).
"The first prong of the test for ineffective assistance of counsel requires a
defendant to show that counsel's representation fell below an objective standard of
reasonableness, considering all the circumstances. Judicial scrutiny of counsel's
performance must be highly deferential, and a fair assessment of attorney performance
requires that every effort be made 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. We must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance.
[Citation omitted.]
"Once a defendant has established counsel's deficient performance, the defendant
also must establish prejudice by showing that there is a reasonable probability that, but
for counsel's deficient performance, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome. A court hearing an ineffectiveness claim must consider the totality of the
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evidence before the judge or jury. [Citation omitted.]" Bledsoe v. State, 283 Kan. 81, 90-
91, 150 P.3d 868 (2007).

See also State v. Bricker, 292 Kan. 239, 245, 252 P.3d 118 (2011).

When the district court conducts an evidentiary hearing on a K.S.A. 60-1507
motion, as in this case, the appellate court reviews any factual findings for substantial
competent evidence and evaluates whether those findings support the trial judge's
conclusions of law. Adams, 292 Kan. at 167. The district judge's legal conclusions are
reviewed de novo. Gonzales, 289 Kan. at 358-59.

Independent Psychological Evaluation of S.T.

It is within the province of a lawyer to decide what witnesses to call, whether and
how to conduct cross-examination, and other strategic and tactical decisions. State v.
Ward, 227 Kan. 663, Syl. ¶ 1, 608 P.2d 1351 (1980). But, "when counsel lacks the
information to make an informed decision due to inadequacies of his or her investigation,
any argument of 'trial strategy' is inappropriate." Mullins v. State, 30 Kan. App. 2d 711,
716-17, 46 P. 3d 1222 (2002) (citing Clay v. State, 954 S.W.2d 344, 349 [Mo. App.
1997]); see State v. Gonzales, 289 Kan. at 358. The State argues that Thompson's trial
counsel made a strategic decision not to pursue an independent psychological evaluation
of S.T., but the record before the district judge does not support this view.

At the evidentiary hearing on Thompson's K.S.A. 60-1507 motion, trial counsel
testified that he and Thompson never discussed having S.T. examined by any other
expert, and the biggest reason counsel did not seek an independent evaluation was S.T.'s
residence in California with her mother. Counsel stated he was concerned about the direct
influence S.T.'s mother had over her. A recognition of the logistical difficulty posed by
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one avenue of investigation is not the same as a strategic decision not to pursue that
avenue after pursuit of an adequate alternate.

That being said, Thompson is not entitled to relief on this allegation of trial
counsel's insufficiency.

Although the record contains some evidence of S.T.'s prior sexualized behavior
with a young cousin and another individual—information that provided the backdrop for
defense cross-examination questions to S.T.'s mother, a detective, and Linka—Thompson
does not demonstrate that a motion for independent psychological examination would
have been successful. See Overton v. State, No. 99,007, 2009 WL 743175, *9
(unpublished opinion) (Kan. App. 2009), rev. denied 289 Kan. 1279 (2009) (allegation of
ineffective assistance of counsel for failure to file motion for independent psychological
evaluation of victim must be supported by record, arguments making motion, if filed,
unlikely to succeed); Wedgworth v. State, No. 99,339, 2009 WL 398971, *2 (unpublished
opinion) (Kan. App. 2009), rev. denied 289 Kan. 1286 (2009) (same); Westerman v.
State, No. 94,627, 2006 WL 2440003, *4 (unpublished opinion) (Kan. App. 2006), rev.
denied 282 Kan. 797 (2006) (same). And it is plain to us from the record that success was
unlikely under the high standard set by this court in State v. Berriozabal, 291 Kan. 568,
581, 243 P.3d 352 (2010); State v. Price, 275 Kan. 78, 80, 61 P.3d 676 (2003); and State
v. Gregg, 226 Kan. 481, 487-90, 602 P.2d 85 (1979).

Berriozabal listed six nonexclusive factors a court must consider in evaluating the
totality of circumstances in a case to determine whether an order for an independent
psychological evaluation of a victim should issue:

"(1) whether there was corroborating evidence of the complaining witness' version of the
facts,
"(2) whether the complaining witness demonstrates mental instability,
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"(3) whether the complaining witness demonstrates a lack of veracity,
"(4) whether similar charges by the complaining witness against others are proven to be
false,
"(5) whether the defendant's motion for a psychological evaluation of the complaining
witness appears to be a fishing expedition, and
"(6) whether the complaining witness provides an unusual response when questioned
about his or her understanding of what it means to tell the truth." Berriozobal, 291 Kan.
at 581 (citing Price, 275 Kan. at 84; Gregg, 226 Kan. at 490).

The presence of these factors, among others, would cast serious doubt on a victim's
mental stability. They involve "demonstrable evidence of a mental condition that requires
further investigation, not the mere allegation of some untoward mental condition"—i.e.
mere allegation of mental instability does not support a request for a psychological
evaluation. Berriozabal, 291 Kan. at 581.

Thompson has not shown that these factors applied to S.T. Without that showing,
we cannot say that any motion filed by his counsel was likely to succeed. Failure to file,
therefore, does not meet the first prong of Strickland, 466 U.S. at 687.

Stipulation to Admission of S.T.'s Videotaped Interview

Thompson next argues that his trial counsel was ineffective because he stipulated
to the admission of a videotaped interview of S.T. without requiring the State to satisfy
K.S.A. 22-3433(a), since repealed. See L. 2010, ch. 90, § 3. That statute provided that a
recording of a statement of a child crime victim younger than 13, made before
proceedings began, was admissible only if nine conditions were met. Those conditions
included the child's availability to testify live and the trial court's determination that "the
time, content and circumstances of the statement provide sufficient indicia of reliability."
K.S.A. 22-3433(a)(9), (a)(1). The statute also required that the recorded statement was
not made "solely as a result of a leading or suggestive question." K.S.A. 22-3433(a)(5).
18


It is first important to note that the stipulation was not counsel's alone. At the
beginning of trial, Thompson's counsel and the prosecutor informed the judge that the
parties agreed to present the videotape to the jury. Thompson's counsel said he was "not
going to put that little girl through cross examination," although S.T. was present for trial.
Later, trial counsel objected to certain portions of the tape for reasons no longer at issue,
and the judge overruled those objections. Then, before the videotape was shown to
Thompson's jury, the judge specifically asked Thompson himself if he agreed to playing
the videotape in lieu of S.T.'s live testimony. Thompson responded: "Yes, yes, sir."

At the evidentiary hearing on Thompson's K.S.A. 60-1507 motion, trial counsel
testified that he was suspicious of the videotape of S.T. because of the off-camera breaks
during the interview. He therefore called Porisch to testify about the unreliability of the
interview procedure; her testimony was designed to intimate that S.T. had been coached,
although the judge ruled that Porisch could not say so directly. Trial counsel also testified
that he had discussed whether to put S.T. on the stand with Thompson, and Thompson
had expressed concern that S.T. would carry the burden of having put her father in prison.
Trial counsel denied refusing to put S.T. on the witness stand, which would have been
permitted under K.S.A. 22-3433(b), even though the videotape was also admitted. In his
ruling on Thompson's K.S.A. 60-1507 motion, the district judge explicitly found trial
counsel's testimony on this subject credible, more credible than Thompson's.

Under these circumstances, we see no deficient performance by trial counsel in
stipulating to admission of the videotape, even without forcing the trial judge to rule
formally that the timing, content, and circumstances of the statement it recorded provided
"sufficient indicia of reliability" and without forcing the State to argue that that the
interview performance of S.T. was not prompted "solely" by "leading or suggestive
question[s]." Accepting, as we must, the district judge's assessment of the relative
credibility of Thompson and his trial counsel, counsel pursued a strategy to maximize the
19

opportunity to assail the videotaped interview method without directly attacking the
young and presumably vulnerable S.T. Here, although counsel could have made this
strategic choice without input from his client, see Bledsoe, 283 Kan. at 92 (choice of
witnesses belongs to counsel), he consulted Thompson. And the strategy pursued had the
further salient benefit of being consistent with the client's contemporaneous wishes, as
expressed on the record to the trial judge when the videotape was admitted and played.

Thompson is not entitled to reversal and remand for new trial based on his trial
counsel's stipulation to the videotaped testimony of S.T. He is unable to show that this
decision fell below an objective standard of reasonableness.

Waiver of Right to Confrontation

Thompson's next ground for alleging ineffective assistance of trial counsel is
based on his factual contention that his trial counsel refused to call S.T. as a live witness
and failed to inform him that choosing not to call her waived Thompson's constitutional
right of confrontation. Thompson asserts that this made any waiver of his right
unknowing and involuntary.

The credibility assessment of the district judge who presided over the evidentiary
hearing on Thompson's underlying K.S.A. 60-1507 motion dooms this argument. At the
hearing, trial counsel testified that he and Thompson discussed whether to put S.T. on the
stand and mutually decided against it. He denied that he had refused to call her as a
witness; indeed, had Thompson wanted his daughter to testify, trial counsel said he would
have acquiesced in that plan.

Moreover, we are unwilling to impose upon criminal defense counsel the burden
of teaching a short course on constitutional law to every client. The case cited by
defendant, State v. Anziana, 17 Kan. App. 2d 570, 571, 840 P.2d 550 (1992), is not to the
20

contrary. Anziana dealt with whether a defendant knowingly and voluntarily entered a
plea of guilty. Similarly, in this court's recent decision in State v. Bricker, 292 Kan. 239,
252, 252 P.3d 118 (2011), we held defense counsel's performance was deficient for
failing to inform the client of his right to enter a plea. Choice of plea is one of the few
decisions about the conduct of a criminal case that rests entirely with the client, and
advice on the rights that may be invoked or waived in making that choice is correctly
deemed compulsory. This is not the case with the decision on whether to call a particular
witness to "confront" that witness' story live rather than in the form of a videotape that
cannot talk back.

For these reasons, we find that counsel's performance was not deficient for failing
to advise Thompson of his right to confront S.T., and he fails the first prong of the
Strickland test.

Failure to Object to S.T.'s Mention of Knife Incident

Thompson's last allegation of ineffective assistance of trial counsel focuses on
counsel's failure to object to S.T.'s mention of Thompson pulling a knife on her mother.
Thompson argues that S.T.'s mention of this incident should have been excluded from the
videotape of S.T.'s interview because it was inadmissible under K.S.A. 60-455, governing
admissibility of other crimes or civil wrongs. Thompson's trial counsel did object
unsuccessfully to certain other bad acts evidence on the videotape but not to the knife
incident.

Even at this late stage of this action, an allegation remains all that Thompson can
muster. Thompson testified at the evidentiary hearing about his displeasure with trial
counsel's failure to prevent his ex-wife from mentioning only his prior incarceration.
When Thompson's trial counsel testified at the evidentiary hearing, neither side
questioned him about the failure to object to S.T.'s mention of the knife incident. We thus
21

have no way of knowing whether trial counsel made a strategic choice with some legal or
logical support, which is not deficient performance under the first prong of Strickland,
466 U.S. at 687, or whether trial counsel made a conscious choice with no support or
made no choice at all, i.e., overlooked the necessity or advisability of the missing
objection. It was Thompson's burden to show that his counsel made a mistake subject to
classification as constitutionally deficient performance. He did not meet that burden.

Cumulative Error

Finally, Thompson contends that the cumulative effect of his trial counsel's alleged
errors mandates reversal and remand for new trial.

"'Cumulative trial errors, when considered collectively, may be so great as to require
reversal of the defendant's conviction. The test is whether the totality of circumstances
substantially prejudiced the defendant and denied him a fair trial. No prejudicial error
may be found upon this cumulative effect rule, however, if the evidence is overwhelming
against the defendant.'" State v. Ellmaker, 289 Kan. 1132, 1156, 221 P.3d 1105 (2009)
(quoting State v. Brown, 285 Kan. 261, 305-06, 173 P.3d 612 [2007]).

We have found no error; thus, the cumulative error rule is inapplicable. See State
v. Miller, 293 Kan. , , P.3d (No. 99,232 filed October 28, 2011).

CONCLUSION

The version of K.S.A. 60-215(a) in effect at the time this case was litigated in
district court permitted movant Marc Thompson to amend his K.S.A. 60-1507 motion
with leave of court. But the district judge correctly dismissed Thompson's claim for
ineffective assistance as untimely. It did not qualify for relation back to the filing date of
his original motion under the version of K.S.A. 60-215(c) in effect at the time of filing,
because it was different in time and type from the claims made in that motion.
22

Thompson's claim that he was denied effective assistance of trial counsel under the
Sixth Amendment because of a failure to request an independent psychological
evaluation of the victim, a stipulation to admission of the victim's videotaped interview,
an unknowing and involuntary waiver of his right to confrontation, and/or a failure to
object to evidence that Thompson pulled a knife on the victim's mother is without merit.

The decision of the district court is affirmed; the decision of the Court of Appeals
is affirmed.