Johnson v. State

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NOT DESIGNATED FOR PUBLICATION

No. 114,735


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

REGINALD JOHNSON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed September 1,
2017. Affirmed.

Michael P. Whalen and Krystle Dalke, of Law Office of Michael P. Whalen, of Wichita, for
appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before PIERRON, P.J., GREEN and HILL, JJ.

PER CURIAM: In this appeal of the district court's denial of habeas corpus relief,
Reginald Johnson, serving a prison sentence for killing his wife, asks us to second-guess
his trial attorney, rule that counsel's performance was legally deficient, and order a new
trial. Johnson's complaints center on actions his lawyer took when he was executing his
plan of attack on the State's case. Experience teaches us that some trial strategies work;
some do not. That does not mean adopting the strategy in the first place was
professionally deficient because juries consider the evidence when reaching a verdict.
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After reviewing all of the evidence presented on this motion and at the trial, we
hold that Johnson has not shown us that there is a reasonable probability that his jury
would have reached a different verdict in the absence of the claimed deficiencies of his
trial counsel. In fact, we are not even convinced that his trial counsel's performance was
deficient. Therefore, we affirm the district court's denial of relief under K.S.A. 60-1507.

We note that this motion actually returns to this court after a panel had previously
remanded the matter to the district court for an evidentiary hearing. After taking evidence
on the issues, and adopting extensive fact-findings as proposed by the State, the court
denied Johnson any relief.

Deeming the issue abandoned, we will not address the brief reference to
physician-patient privilege in Johnson's complaints about his trial counsel's performance.
He does not explain how it would be applicable, and an issue not briefed by the appellant
is deemed waived or abandoned. State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065
(2016).

Johnson attacks the district court's ruling primarily in four areas:

 Ken Newton, his trial attorney, was ineffective by failing to conduct an
adequate investigation and not calling certain crucial witnesses to testify;
 Newton virtually forced him to testify against his will because Newton
failed to call some witnesses;
 Newton should have lodged a hearsay objection at one point of the trial that
would have prevented the admission of some damaging testimony; and
 Newton should have filed a pretrial motion to suppress a handwritten note.

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And, finally, Johnson argues that cumulative errors during Newton's
representation should compel us to order a new trial. We will address the issues in that
order after a brief review of the rules that guide us in these types of cases.

Relief can be granted if two factors are proved.

For a case such as this, our primary concern is whether Johnson received a fair
trial. In other words, was Johnson convicted by the evidence or through the professional
incompetence of his lawyer? To prevail on a claim of ineffective assistance of counsel, a
defendant must establish two things: deficient performance by the lawyer and prejudice
to the defendant's case. By prejudice, we mean that there is a reasonable probability the
jury would have reached a different verdict if there had been no deficient performance by
the lawyer. See Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014).

Especially pertinent to this case is the rule that if counsel has made a strategic
decision, after making a thorough investigation of the law and the facts relevant to the
realistically available options, then counsel's decision is virtually unchallengeable.
Strategic decisions made after a less than comprehensive investigation are reasonable
exactly to the extent a reasonable professional judgment supports the limitations on the
investigation. See State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318 (2013).

At the evidentiary hearing on Johnson's motion, Newton testified extensively
about his trial strategy, giving explanations for why he did or did not do certain things
that Johnson now complains about. We will examine his reasons in detail.

The bloody details of Johnson's crime are set out by our Supreme Court in its
affirmance of Johnson's conviction and need not be repeated here. See State v. Johnson,
290 Kan. 1038, 236 P.3d 517 (2010). Johnson used a shotgun to shoot his wife, Amy
Whiteman, at their home in Wichita. Looking back on the trial now, many years later, it
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is safe to say that the question at trial was not whether Johnson had killed Whiteman—
after all, he shot her four times with a shotgun—but was, rather, a question of his
culpability. Of what degree of crime was Johnson guilty? Or, was there any excuse for
shooting his wife?

An important component of the case against Johnson centered on a handwritten
note that he had given Whiteman before her murder. For the State, it was evidence of
premeditation—a threat to kill if she was unfaithful. For the defense, it was Johnson's
way of saying he was going to kill himself; in other words, a dramatic gesture of his
depression as a result of her infidelity. For the defense, it was evidence that would
support a finding of guilt of a lesser crime. How this note was handled at trial and the
examination of witnesses about it are the primary areas of contention in this motion.

After investigation, defense counsel developed a trial strategy.

Newton and his investigator not only looked into the background of all concerned
but the facts of the crime as well. Newton testified that he interviewed the lay witnesses
and his investigator interviewed the doctors. The defense strategy Newton adopted was to
convince the jury that Johnson's motive was suicide, not homicide, and because of the
heat of the moment with passions rising, things got out of hand and he shot his wife and
not himself. The goal, then, was a conviction for a lesser included crime, such as
voluntary manslaughter, and not premeditated first-degree murder. Given this record, we
cannot say this was a bad strategy. Neither can we say that it was unprofessionally carried
out, nor was it a deficient performance. The strategy just did not work; obviously the jury
was convinced from the evidence that Johnson, with premeditation, intended to murder
his wife.

Because this was a defense based on motive and not factual innocence, in his
preparatory work, Newton wanted to explore the psychological issues that arose from the
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circumstances of this case. By having Johnson evaluated, Newton was able to consider
possible lines of defense suggested by the professional reports of his condition.

We explore Johnson's complaint about his counsel's limited investigation.

Newton asked Dr. Molly Allen to conduct a psychological evaluation of Johnson.
To us, Johnson argues Newton should have conducted a deeper investigation after
receiving Dr. Allen's report and pursued a defense based on mental disease or defect. To
provide a context, a brief review of Dr. Allen's impressions of Johnson is helpful at this
point.

Dr. Allen's report discussed Johnson's depression, self-destructive behavior, and
bouts of rage:

"Mr. Johnson acknowledges a history of self-destructive behavior on his part, and it
appears that he has had a lot of difficulty dealing with rejection or disappointment,
particularly in his relationship with [h]is wife. No doubt abandonment by his father early
in life left Mr. Johnson with some insecurities. However, rather than trying to cope,
adapt, and move on, he has tended to instead become overly self-focused and self-pitying,
with significant bouts of depression and self destructive behavior. Thus, his accounts of
sometimes having 'missing time' or brief amnesia when he is in the midst of intense
interactions with his wife appear to have a lot to do with his extremely shaky sense of
self. That is, Mr. Johnson defines himself as to whether or not he has control of his wife's
positive attention, affection, and approval. Without it he becomes frantic, full of rage,
impulsive, very distracted, and most likely experiences so much distress out of proportion
to the situation that he 'shuts down' or represses to the point that memories are later
unavailable to him.

"Mr. Johnson most likely has had an affective disorder, and a character disorder, the latter
of which is characterized by an individual having chronically disturbed relationships with
others. In Mr. Johnson's case, this means that he lacks a stable sense of self, and tends to
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be drawn to a chaotic and dysfunctional relationship with a primary partner. In this sense,
he could be said to have a mental disease or defect that contributed to the crime in
question."

At the evidentiary hearing on Johnson's motion, the court admitted testimony
about Dr. Allen's report on whether Newton had conducted a proper investigation, but it
did not allow any testimony about whether Newton should have raised a mental disease
or defect defense because that issue had not been raised in Johnson's K.S.A. 60-1507
motion. Newton testified that prior to trial, he requested the psychological evaluation of
Johnson to determine the plausibility of putting on a mental disease or defect defense.

After Newton reviewed Dr. Allen's report, he chose not to proceed with that line of
defense because Dr. Allen did not give a "real definitive endorsement" of mental disease
or defect. After reviewing the report, he did not contact Dr. Allen about her report or
findings. Newton chose a different defense. Newton did not investigate the defense of
mental disease or defect any further. Newton testified that he chose not to call Dr. Allen
to testify because her recommendation was not strong enough to be successful. Newton
said he was looking for something more—her report seemed "wishy-washy" to him.
Newton made an informed, professional choice not to pursue that defense. We are in no
place to second-guess his judgement at this point.

In opposition, Johnson argues that had Newton investigated further, there is a real
possibility that he would have been convicted of a lesser offense. He argues the
symptoms described in Dr. Allen's report mirrored what he told the police that he
experienced on the day of the shooting.

The problem with Johnson's argument is that it is too hypothetical. After all,
Newton did investigate Johnson's psychological condition by having him evaluated and
reviewing Dr. Allen's psychological report. Johnson does not explain how the report or
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further investigation would have negated premeditation. There is no evidence in this
record that leads us to a conclusion that a mental disease or defect defense could have
been raised, other than Johnson's desire now to make it so. To obtain relief, Johnson must
show us a reasonable probability that the claimed defense would have convinced his
jury—not just a possibility it might work. Johnson has failed to do so.

The trial record shows ample evidence that Johnson had psychological issues and
was suicidal on the date of the murder. This was introduced through other witnesses.
Detective Thomas Fatkin testified that Johnson said he planned to shoot himself (not
Whiteman) after he found out about the affair. Newton elicited from Lisa Sandoval and
Eddie Porter on cross-examination that Johnson had suicidal ideations, as will be
discussed later.

Also, the district court's finding that Jay Greeno, the attorney Johnson called to
criticize Newton's performance, did not review the entire file or the trial transcript and,
thus, was unpersuasive is supported by the record. Greeno could not testify to the extent
of the investigation that Newton conducted or how the information about Johnson's
psychological issues was used at trial. To us, Johnson has failed to raise one relevant fact
that Newton's investigation failed to uncover. Certainly, Johnson has not shown us that
Newton's investigation prevented him from proceeding with his planned defense or any
different defense he might have reasonably raised.

We examine Johnson's complaints about failing to call certain witnesses.

Next, Johnson claims Newton was ineffective because he failed to call several
witnesses. We look first at the possible testimony of Dr. Roxann Dicker, Johnson and
Whiteman's family therapist and marriage counselor.

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Newton testified that he chose not to call Dr. Dicker because she had not seen
Johnson in at least six months, "so her testimony wasn't current enough to offer us any
assistance in what would have happened two to three months later." Newton testified that
it "was pretty obvious when we talked to her she didn't like [Johnson] very much and so
there was a concern that she would offer some negative testimony, in addition. I think she
did intimate to us that she thought he had a rage disorder and explosive behavior." Dr.
Wayne Burns, Johnson's psychotherapist, later confirmed that Dicker had referred
Johnson to him, in part, because of her belief that Johnson had anger issues.

Dr. Dicker did not testify at the K.S.A. 60-1507 motion hearing. The district court
found that Newton was not deficient for failing to call Dr. Dicker as a witness at the trial,
in part because Newton believed Dr. Dicker would have testified that Johnson had a rage
disorder and explosive behavior. Such testimony would not have supported the defense
but would have supported the State's theory of guilt, instead. The court's findings were
supported by the testimony at the hearing. Based on the testimony provided, Newton's
decision to not call Dr. Dicker was reasonable for fear that her testimony would hurt the
defense.

Next, Johnson argues that if Dr. Burns had testified, he would have explained that:

 Johnson's anger issues were from frustration;
 Johnson had dysthymia (a persistent depressive disorder); and
 Dr. Burns did not see any signs of violence in Johnson.

At the motion hearing, Newton testified that he chose not to call Dr. Burns to
testify at trial because he wanted to keep out information in Dr. Burns' report that
indicated Newton had a rage disorder. Newton was concerned that if he called the doctor,
his testimony would actually help establish premeditation or at least provide a motive to
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kill. While it is true that Newton did not interview Dr. Burns, his investigator did.
Newton was well aware of Dr. Burns' statements about Johnson's issues with depression.

At the motion hearing, Dr. Burns testified that he was a psychotherapist and
Johnson was his patient in 2007, referred to him by Dr. Dicker due to suicidal ideation,
depression, and anger issues. During his sessions with Johnson, Dr. Burns did not see the
anger issues present themselves. He explained that anger is always a secondary emotion.
Johnson was dealing with a lot of frustrations and internalizing a great deal. His
frustration had to do with some familial issues. But Dr. Burns never saw any signs of
Johnson being violent towards others. Dr. Burns was just getting ready to delve into the
potential anger issues when the therapy sessions stopped. Dr. Burns never saw any
indication that Johnson was suicidal or had homicidal ideations in his three visits. Dr.
Burns diagnosed Johnson with dysthymia.

Concerning Dr. Burns' evidence, the district court found that Newton's
representation was not professionally unreasonable. Newton had already investigated
Johnson's mental health. He reviewed Dr. Burns' report. He had Dr. Allen evaluate
Johnson before trial. Newton made a strategic decision not to call Dr. Burns to testify
after a reasonable investigation. In addition, the court found that Dr. Burns' testimony
would not have had the desired effect:

"While it is true that Dr. Burns said that [Johnson] did not present any anger issues as a
primary emotion or homicidal ideations, he also indicated that the diagnosis was based on
the limited input given by [Johnson]. [Johnson] purports to have had suicidal ideations
when talking to other people, but denied suicidal ideations in his three meetings with Dr.
Burns. This revelation would have undermined defendant's defense and his credibility at
trial. This is the type of damaging testimony that Mr. Newton was trying to avoid by not
calling Dr. Burns."

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We find that reasoning persuasive. The trial court's findings are supported by
substantial competent evidence. Based on Dr. Burns' testimony at the motion hearing, it
was unclear how his testimony at trial would have helped the defense. His testimony at
the motion hearing certainly did not support the defense theory that Johnson was suicidal.
It was reasonable for Newton to make the strategic decision not to call Dr. Burns to
testify to avoid the "anger issues" testimony altogether. We now turn, briefly, to an issue
raised about medical records.

Johnson complains that Newton did not review Johnson's medical records from
the Good Shepherd clinic. Johnson argues those records supported his claim that he was
suicidal. On this point, Newton testified that he did not recall reviewing Johnson's
medical records from his stay at Good Shepherd. But he talked to Johnson about what he
experienced there. Johnson told Newton that he had issues with depression and suicidal
thoughts. When it addressed this issue, the district court found that other evidence,
including Sandoval's testimony, showed Johnson was suicidal at times, and not
necessarily homicidal.

The trial court is correct. Newton knew about Johnson's Good Shepherd stay and
that Johnson was suicidal. Newton elicited testimony at trial from both Sandoval and
Eddie Porter to that effect. Specifically, Newton asked Sandoval:

"Q. And, um, you knew that Amy was concerned that Reggie finding out might cause
him to hurt himself.
Isn't that correct?
"A. Yes.
"Q. And by hurting himself, he may react and take his life?
"A. Yes, that was Amy's concern.
"Q. And Amy confided in you the fact that he had been in and out of the Good
Shepherd Hospital?
"A. Yes.
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"Q. For suicide attempts in the past?
"A. Yes."

Thus, whether Newton had read the Good Shepherd medical records, his cross-
examination shows that he had investigated the matter. We see no reason to grant relief to
Johnson on this point. We now return to the final two witnesses Johnson says Newton
should have called.

Lisa Sandoval testified at trial about Johnson's note to Whiteman.

Without being specific, Johnson argues that Newton should have interviewed
Sandoval, Whiteman's coworker, prior to trial and if he had, Newton would have learned
information that could have corroborated Johnson's defense. We take a closer look at that
later.

The State called Sandoval to testify at trial. The State asked Sandoval if Whiteman
had confided that she had received written communications from Johnson during the
month of August. She testified then about a specific note:

"Q. Can you tell us about that, please?
"A. Um, one day she came to work.
Um, and every morning she had to pass my desk as she would come in the door.
And I would ask her, How are you doing today. And on one particular day, and I don't
know the date exactly, um, she said, I've been better. You're not going to believe what I
found this morning. And she said she had found a note from Reggie on the table.
"Q. Did she show you the note?
"A. She didn't show me the note, I saw she had it in her hand. And she laid it on the
desk.
"Q. So you saw it?
"A. Yeah.
"Q. And did she talk to you about its contents?
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"A. Um, yes. She said, um, that, oh, my gosh, what am I going to do now? Reggie
left this note. And he said that if he ever found out I was cheating on him, he was
going to kill me.
"Q. And did she appear concerned about that, I mean?
"A. No, not really.
. . . .
"Q. So the note is out there, she's telling you about that?
. . . .
"Q. So that evidenced some concern; right?
"A. Yes.
. . . .
"Q. Was it a threatening letter?
"A. She took it as—no.
MR. NEWTON: I'm going to object, Your Honor, as to her state of mind.
THE COURT: Your response, Ms. Swegle.
MS. SWEGLE: Let me try to rephrase the question.
"Q. . . . Characterize the degree of concern she showed, if any?
"A. Um, I didn't notice any. It was just more of a frustration, like, what now. Another
complication I guess to the several complications that she already felt she was
involved in.
"Q. So there were continuing problems with Reggie; is that right?
"A. Yes.
"Q. And now he's going to kill her if he finds out she's cheating?
"A. Yes."

After the note was admitted into evidence, the State asked Sandoval to read a
portion. Sandoval read, "Warning, if you hurt me again, promise, I will hurt back in the
worst way." The letter continued, "Enough is enough."

On cross-examination by Newton, Sandoval testified that Whiteman's concern was
that Johnson may take his own life. Newton asked Sandoval if Whiteman ever expressed
a fear of Johnson. Sandoval responded, "Never." Newton asked, "Isn't it fair to say that
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the only fear that she expressed was the fact that Reggie might do something to himself?"
Sandoval responded, "Correct."

At the motion hearing, Sandoval testified that neither Newton nor his investigator
ever got in touch with her. Sandoval testified that at trial, she was not permitted to
explain Whiteman's comment that if Johnson found out about her affair, he was going to
kill her. At the motion hearing, Sandoval testified that it was a figure of speech. And
Whiteman was never worried about Johnson harming her. Whiteman told Sandoval she
was not afraid of Johnson. Sandoval complained that the jury did not hear the full
explanation of what Whiteman meant by the statement. Sandoval testified that if Newton
had interviewed her prior to trial, she would have explained this to him.

Newton testified that he believed Johnson's statement of "I will hurt back in the
worst way" had a special meaning between only Johnson and Whiteman, so only Johnson
could testify that it meant he would commit suicide. In contrast, Johnson testified that he
had told Newton before trial that several people knew the meaning of this statement. But
Johnson did not know that Sandoval was aware of his issues until she testified at trial.

On this point, the district court found that Newton's representation was not
deficient because the trial transcript showed that Sandoval presented favorable testimony
on direct examination and Newton elicited testimony favorable to the defense during
Sandoval's cross-examination.

Was it unreasonable for Newton to fail to interview Sandoval prior to trial? In
hindsight, probably yes. But to properly assess counsel's performance, caselaw calls for
us to eliminate the "distorting effects of hindsight and reconstruct the circumstances of
counsel's challenged conduct." Flynn v. State, 281 Kan. 1154, 1157, 136 P.3d 909 (2006).
There is no indication that either Newton or Johnson knew before trial that Sandoval
could have explained Johnson's statement of "I will hurt back in the worst way" in the
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way she did at the motion hearing. Knowing what we know now, we can say that Newton
should have interviewed her. But we question how damaging to Johnson's defense his
failure to talk to her was because of how Newton handled her evidence at trial. Through
Newton's questions, Sandoval told the jury that Whiteman was not concerned for her own
safety but concerned about Johnson hurting himself, instead.

The trial court's findings on this point are supported by substantial evidence.
Newton elicited favorable testimony during his cross-examination of Sandoval. He got
Sandoval to say that Whiteman's concern was that Johnson may hurt himself. This
admission supported Johnson's defense. Newton's representation was not objectively
unreasonable.

Eddie Porter testified at trial about Johnson's thoughts of suicide.

Johnson contends that Newton should have interviewed his friend Eddie Porter
prior to trial and called him as a witness. He argues that Porter was aware of Johnson's
medical history and would have testified that he was not concerned about Johnson
hurting Whiteman but that Johnson may hurt himself.

Porter did testify at trial. On cross-examination, Newton asked Porter if he had
concerns after telling Johnson that his wife was cheating on him. Porter said he had "big
concerns." His concern was that Johnson was going to "do some harm to himself." By
harm, Porter meant "probably shoot himself." Porter was concerned Johnson would take
his own life. Porter had some knowledge that Johnson had been suicidal in the past.
Newton asked Porter if he was concerned that Johnson was going to harm Whiteman.
Porter responded, "Not at all." Johnson told Porter that he was going to let Whiteman be
with the other guy and he would try to move on.

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In its review of this point, the district court found Newton's representation
reasonable because he had elicited helpful testimony on cross-examination. The trial
court is correct. Porter's testimony at trial supported Johnson's story that Whiteman was
not concerned with Johnson hurting her and that Johnson was suicidal. Newton was
prepared to cross-examine Porter and did so effectively. Newton was not ineffective is
this regard.

To summarize, this record clearly discloses that Newton gave specific plausible
reasons for his actions based on the trial strategy he had adopted of suicide as a motive,
and not homicide. He conducted a pretrial investigation, called several witnesses at trial,
and explained why he did not call the witnesses Johnson now lists. In his view, Dr.
Allen's report was not strong enough to pursue a mental illness or diminished capacity
defense. He did not call Dr. Dicker to testify because she did not like Johnson and
believed that he exhibited anger issues and was explosive. Dr. Burns' testimony about not
detecting any suicidal ideations from Johnson would have completely undercut the core
of the defense. The admission of the Good Shepherd medical records would have had
little impact because testimony about Johnson's depression had already been admitted at
trial. While he did not call Sandoval, Newton was able to elicit favorable testimony from
her at trial about Whiteman not being fearful of Johnson. And, finally, Porter did testify
and, through Newton's cross-examination, told the jury about his fears of Johnson
harming himself and not Whiteman. In other words, the information helpful to the
defense came in and many unhelpful statements did not. These actions are not examples
of incompetence. We will not second-guess the defense strategy here as Johnson asks us
to do. We hold that Newton's performance was not deficient.

We are not persuaded that Johnson was compelled to testify against his will.

Johnson's and Newton's testimony differed on this point at the motion hearing.
Johnson contends that he told Newton before trial that he did not want to testify, but he
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felt compelled to because Newton told him it was necessary to explain Johnson's
handwritten note and Newton did not call other witnesses on his behalf. Johnson said he
had no plans to testify because "the golden rule is not to take the stand" in a murder trial.
According to Johnson, after the State rested, Newton told him that he needed Johnson to
testify to bring out a few points about the note. Johnson told him again that he did not
want to testify. But Newton said that if Johnson did not testify "with those letters being
produced, there's a good possibility that you will be convicted of first degree." So he
unwillingly agreed to testify because Newton did not call other witnesses.

A totally different picture is drawn by Newton, who testified that it was Johnson's
desire to testify. "He expressed that long before the trial and we discussed that long
before the trial." Newton testified the "strategy" was for Johnson to testify. Johnson sat
through the whole trial and made the choice to testify. Newton testified that Johnson had
told him that the handwritten letter had a special meaning between only him and
Whiteman. Newton believed only Johnson could explain that special meaning to the jury.
A quick review of the trial transcript is helpful on this point.

In the State's opening statement, the prosecutor mentioned that Whiteman had
received a threatening note from Johnson that stated he would "hurt back [Whiteman] in
the wors[t] way" if he found out she was cheating on him. In his opening statement,
Newton talked about the note:

"[Y]ou're going to hear evidence that that had a special meaning between him and Amy.
And that was, that the wors[t] way Reginald Johnson could hurt Amy, was not taking her
life, but by taking his own. And making her look into the eyes of their 10-year-old son,
Josiah, and explaining to him why daddy is no longer with us. That's how he would hurt
her in the wors[t] way possible. She would have to live with what she did."

After the State rested, Newton asked the trial judge to talk to Johnson about his
right to testify. The court told Johnson that:
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"[N]o one can make you testify, that choice is yours and yours alone.
"There are a lot of decisions that your lawyer can make for you during the course
of the trial, but this is not one of those decisions. This is one that's solely up to what you
want to do.
"I hope that you do talk to your lawyer about this, and listen to your lawyer's
advice. But ultimately the decision is completely up to you."

Johnson testified at trial, as planned. With regard to the handwritten note, Johnson
explained that "the wors[t] way" to hurt Whiteman was to take his own life so that she
would "have to look my son in his eyes and explain to him why his daddy isn't here any
more." The statement had that particular meaning between him and Whiteman. Thus,
Johnson put his defense squarely before his jury.

It was then during cross-examination that the State asked Johnson if he had
discussed anger management issues with Dr. Burns. The State asked Johnson to read a
record of his initial interview with Dr. Burns that said Johnson had "significant anger
management issues." This was damaging to Johnson's defense, undercutting his claims of
depression and suicide. He cites that damage to us as a reason for us to order a new trial.

At the motion hearing, Johnson testified that he explained to Newton that Drs.
Dicker and Burns could corroborate his meaning in the note. Johnson asked Newton to
contact them because they could verify the "true meaning" of his statement. During the
hearing, Johnson claimed that if Dicker or Burns had testified at trial and explained what
he meant by hurting Whiteman in the worst way, then he would not have had to testify at
trial. In response, Newton testified that while he did not call any witnesses to corroborate
Johnson's testimony, there were witnesses called that did corroborate Johnson's
testimony.

The district court discounted Johnson's testimony at the motion hearing on this
point, essentially finding Newton more credible. The court noted that the trial record
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showed the trial court expressly informed Johnson it was "his decision alone" whether to
testify. The court also noted that it would be inadmissible hearsay for other witnesses to
testify about what Johnson told them unless Johnson testified.

Obviously, Newton's testimony at the motion hearing directly contradicted
Johnson's testimony. We cannot legally reweigh the testimony or pass on the credibility
of witnesses and will not try to do so now. See State v. Orr, 262 Kan. 312, 322, 940 P.2d
42 (1997). If it was Johnson's decision to testify, as he told the trial court, then Newton
cannot be ruled deficient for calling Johnson to testify.

Counsel gave a reasonable explanation for not objecting to hearsay.

The panel that remanded this case to the district court for an evidentiary hearing
questioned the lack of a hearsay objection during Sandoval's trial testimony. With no
evidence to evaluate, the panel stated it could not judge whether the lack of an objection
was deficient:

"As we have indicated, the hearsay character of the statement raises legitimate concerns
about its admissibility and, more pertinently here, the failure of Johnson's trial lawyer to
lodge an objection. We have no way of knowing why the lawyer passed on making an
objection, since the district court declined to hold an evidentiary hearing on the 60-1507
motion." Johnson v. State, No. 109,169, 2014 WL 1362929, at *5 (Kan. App. 2014)
(unpublished opinion).

On remand, when asked if there was a reason why he did not object to Sandoval's
testimony, Newton testified that Johnson wanted other favorable hearsay statements to
come in:

"All I could say is at the time Mr. Johnson was wanting other statements to also come in
from Amy that were helpful to him, such as she wasn't afraid of him. She went along with
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him voluntarily. Those were other statements that he specifically wanted to get into
evidence and my thought was that if we start objecting to hearsay early on, the judge is
going to shut us all down and we will not be able to prove those points that Mr. Johnson
wants to prove."

Newton wanted Sandoval to testify that Whiteman was not worried that Johnson was
going to hurt her because it would negate premeditation.

We now have the evidence the prior panel wanted. Newton did not object to the
hearsay testimony because there was other hearsay testimony from Sandoval that was
beneficial to the defense:

 Whiteman was not afraid of Johnson;
 Johnson was suicidal;
 Whiteman loved Johnson; and
 Whiteman stayed with Johnson voluntarily.

Again, this is an example of Newton's strategic thinking.

Johnson contends that there is no rule that prohibits Newton from objecting to
Sandoval's harmful hearsay testimony if Newton failed to object to Sandoval's helpful
hearsay testimony. He argues that Sandoval's testimony supported the State's theory of
premeditation and, thus, significantly prejudiced the outcome of the trial. But now we are
approaching the subject of trial tactics. Johnson is basically criticizing Newton for his
choice of trial tactics.

The caselaw tells us where experienced attorneys might disagree on the best
tactics, deliberate decisions made for strategic reasons may not establish ineffective
counsel. But the strategy must be objectively reasonable. See Bledsoe v. State, 283 Kan.
20

81, 93-94, 150 P.3d 868 (2007). If no competent attorney would have adopted the
strategy, it falls below minimum constitutional standards. Wilson v. State, 51 Kan. App.
2d 1, 15, 340 P.3d 1213 (2014). Because we have already found that the trial strategy
Newton adopted was sound, we hold the tactic Newton followed here of not objecting to
hearsay testimony to have favorable hearsay testimony admitted is not ineffective.

We reiterate. In the handwritten note, Johnson wrote, "Warning, if you hurt me
again, promise, I will hurt back in the worst way." To corroborate Johnson's claim that he
was writing about suicide rather than homicide, Johnson's attorney needed to elicit
hearsay testimony. The jury may well have taken Johnson's written statement as a threat
to Whiteman's life without Sandoval's hearsay testimony to the opposite. A federal case
supports our view.

In United States v. Martinez, 276 Fed. Appx. 741, 746-47 (10th Cir. 2008)
(unpublished opinion), a defense attorney faced a similar problem. The 10th Circuit
rejected a claim of ineffective assistance of counsel when the attorney failed to object to
damaging hearsay testimony to utilize helpful hearsay testimony. The court stated:

"As Kaufman explained to the district court, he did not object because he had opened the
door to Ambers's statements while cross-examining Officer Jensen. Kaufman apparently
pursued that strategy because there was no other way to put Ambers's self-incriminating
statements before the jury. . . . The problem faced by Kaufman was that the evidence
strongly favored guilt. To obtain any favorable evidence, he needed to elicit hearsay,
even though this effort would likely lead to the introduction of additional unfavorable
evidence. We conclude that Kaufman's failure to object when Officer Jensen provided
damaging hearsay testimony was a necessary consequence of a trial strategy designed to
utilize helpful hearsay testimony. [Citation omitted.]" 276 Fed. Appx. at 747-48.

Here, Newton had a similar strategic reason for not objecting to Sandoval's
hearsay testimony—so he could get Sandoval to testify on cross-examination that
21

Whiteman's only concern was that Johnson would hurt himself. Thus, we hold that
Newton's representation was not deficient. The first stage of the test in Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is not met so
there is no need to analyze the prejudicial effect of the testimony.

Since Newton objected to the admission of the note, not filing a pretrial motion to
suppress is not an example of deficient performance.

At trial, the State moved to admit the handwritten note when questioning
Whiteman's work supervisor. Newton objected on foundation grounds. The court ruled
that the letter would not be admitted at that point. Later in the trial, while questioning
Sandoval, the State again moved to admit the handwritten note. Newton again objected,
arguing that the State still had not laid the proper foundation to authenticate the note. The
trial court overruled the objection and admitted the letter.

Here, Johnson contends Newton was ineffective because he failed to file a pretrial
motion to suppress the handwritten note. He argues Newton did not make a strategic
decision to address the matter at trial as opposed to pretrial. He argues that if Newton had
addressed the matter pretrial, he would have been more prepared during the trial to deal
with its admission. But Johnson fails to show us how the outcome would have changed.

At the motion hearing, Newton testified that he did not have any issues he wanted
to raise before trial. He testified that the admission of the note was "one of the issues that
just kind of reared its head during the trial." The trial court found that it was not relevant
that Newton could have challenged the admissibility of the handwritten note pretrial
because Newton objected to its admission during the trial, which was ultimately
overruled.

22

The trial court is correct. While it is true that Newton may not have had a strategic
reason for failing to move to suppress the note pretrial, Johnson has not shown us that
such a failure constitutes deficient performance. Newton designed his defense strategy to
mitigate its effect if the note was admitted at trial. There was no prolonged discussion of
the note, thus giving it increased significance to the jury because Newton lodged a simple
objection. Newton said only, "I'm going to object. She's still not laid the proper
foundation. And I believe the foundation provided by the [S]tate is insufficient to
authenticate the letters." The court overruled the objection, and no more attention was
drawn to the note by any further objection. Also, we must point out that Johnson has not
established prejudice. Ultimately, the court ruled the note admissible, and Johnson has
not persuaded us that a pretrial motion to suppress would have been successful in keeping
it out when his objection during trial did not.

Finally, having found no deficient performance on Newton's part, there are no
errors by counsel to accumulate and thus, there is no need to address Johnson's claim of
cumulative error.

From this record, we find that Newton conducted a reasonable pretrial
investigation on behalf of his client. Exercising his professional judgment, he chose not
to pursue a defense of mental disease or defect and gave plausible reasons for his choice.
Newton formulated a trial strategy of "suicide-not-homicide" as his client's motive and
called witnesses to give evidence that supported that strategy. Through cross-
examination, he was able to elicit favorable evidence from two witnesses that Johnson
now argues he should have called for the defense. Johnson has not convinced us that
Newton's performance was deficient. Also, Johnson has not shown us how his case was
prejudiced by Newton's representation. He is not entitled to habeas corpus relief.

Affirmed.