# State v. Rice > Supreme Court of Kansas · January 31, 1997 · 261 Kan. 567 URL: https://www.frixlaw.com/law-library/cases/9792816 ## Case - **Full name:** State of Kansas, Appellee, v. Jerry D. Rice, Appellant - **Court:** Supreme Court of Kansas - **Decided:** January 31, 1997 - **Citations:** 261 Kan. 567; 932 P.2d 981; 1997 Kan. LEXIS 23 - **Precedential status:** Published - **Opinion:** Dissent by Davis - **Judges:** Larson, Davis, Allegrucci, Six - **Cited by:** 93 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9792816 ## How later opinions describe it (automated extraction) - concluding there was no reversible error from a police officer’s unsolicited comment regarding the defendant’s refusal to talk without an attorney because the trial court gave a limiting instruction and the defendant was not prejudiced - holding Whitten could testify as to statements made to Whitten by Frazier concerning things defendant told Frazier impheating defendant in the crime because Frazier was available for cross-examination - holding that evidence of previous abuse was admissible to show motive and intent as well as a “continuing course of conduct” - holding that the appellate standard of review of ineffectiveness claim is de novo ## Opinion text Davis, J., dissenting: I respectfully dissent from the majority’s opinion and would conclude that the trial court erred in rejecting the defendant’s claim for a new trial based on ineffective assistance of counsel. The majority concludes that counsel’s assistance to the defendant was unreasonably deficient. The majority further concludes that counsel’s advice to the defendant, that he should not testify, was not based upon any justifiable strategic consideration but was based on the fact that counsel attempted to practice law in a jurisdiction where he was not licensed without having a correct understanding of the rules of evidence or making the necessary efforts to learn how Kansas law treats a critical piece of evidence — the testimony of a defendant — in any criminal defense. The majority states that counsel’s failure to even question local counsel about *610 the fundamental precepts of Kansas law when defending an accused charged with first-degree murder and facing the most severe penalty available under law is inexcusable. Finally, the majority concludes that it was shocked with the conduct of Kansas counsel who undertook local representation and failed to fill the requirements of that representation. I agree with these conclusions and with the ultimate conclusion that counsel’s performance was unreasonably deficient. However, I disagree with the majority’s conclusion that there was not a reasonable probability of a different outcome had the defendant testified. Three factors are especially important in analyzing the effect of defense attorney Willard Bunch’s erroneous and unreasonable advice to his client not to testify. First, the appellate court exercises particularly sensitized review of cases where the conviction is based solely on circumstantial evidence. State v. Williams, 229 Kan. 646, 648 , 630 P.2d 694 (1981). In this case, the victim’s body was never found, nor did any witness testify to seeing the victim killed. Second, an appellate court’s review of cases in which a hard 40 sentence is imposed is similarly sensitized. See K.S.A. 1993 Supp. 21-4627. Finally, Bunch’s advice prevented the defendant from exercising his constitutional right to testify in his own defense. The defendant presented witnesses who testified they saw the victim alive after she was supposedly killed. The only evidence that could not be reconciled with the defense theory was the State’s rebuttal testimony of Pam Whitten, who was staying at the home of Dixie Frazier, the defendant’s sister. This testimony was hearsay evidence denied by the declarant. The defendant actively assailed Whitten’s credibility by attempting to establish that she was unstable and possessed a motive for lying because the defendant’s sister refused to give her money to leave the state. Either Sami Stem an acquaintance of Frazier, who testified she talked at length with the victim after her alleged death, or Whitten, who testified Frazier discovered the victim was dead, lied to the jury. In the face of this contradictory testimony, the defendant’s testimony could have weakened the other circumstantial evidence against him which tended to corroborate the story told by Whitten. His testimony about the events of the night of September 13,1992, *611 could have created serious questions about whether the victim’s children, Mark and Amanda Lyons, had combined the events of 2 days into 1 and had actually seen their mother on the bathroom floor the morning before the final fight. The defendant proffered evidence of what his testimony would have been had he taken the stand. At the hearing, the defendant testified that he would have refuted key aspects of the State’s case. He would have denied that he killed the victim. The defendant’s testimony could have created a reasonable doubt. While there is evidence in the record that much of what the defendant would have testified to was before the jury in the form of other testimony, this is not the same as the defendant testifying. The defendant’s testimony, under all the circumstances, was of critical importance. The conduct of the defendant’s counsel did not merely result in a minor procedural error. Bunch’s erroneous understanding of governing law had the effect of preventing the defendant’s exercise of his apparent constitutional right to testify in his own defense. See Nix v. Whiteside, 475 U.S. 157, 164, 173 , 89 L. Ed. 2d 1 , 106 S. Ct. 988 (1986). Where a trial error deprives a defendant of a constitutional right, the standard to be applied is more stringent than simply whether there is a reasonable probability of a different result. Instead, the presumption is that the error warrants reversal unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt, that is, that we can say beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. See State v. Johnson-Howell, 255 Kan. 928, 944-45 , 881 P.2d 1288 (1994). There is no question that the defendant’s decision not to testify was based solely on counsel’s erroneous advice that all of his prior convictions would have then come into evidence. Counsel for the defendant corroborates this fact by his own testimony. I would conclude that the defendant’s claim of ineffective assistance of counsel has more merit than the majority decision finds. While the majority defers to the trial court’s findings, it does so after concluding that the trial court erred as a matter of law in not finding Bunch’s conduct unreasonably deficient. After making this *612 determination, the trial court could, and did, base its decision solely on this erroneous legal conclusion and, therefore, may not have considered the question of prejudice. Indeed, the trial court’s journal entry reflects no deep reflection on the question: “Having reached this conclusion [counsel’s performance was not deficient], it is not necessary to address the record [sic] test. However, it should be clear that the Court’s answer to that question would also be ’No.’ ” The majority opinion presumes by the “record test” the trial court was referring to the question of whether, but for the counsel’s error, there would be a reasonable probability of a different result. In light of the trial court’s legally erroneous conclusion that Bunch’s representation was not unreasonably deficient, I would find this presumption too fine and frayed a thread to support the heaviest punishment our state imposed at the time of the defendant’s conviction. Even under the more onerous standard of Strickland v. Washington, 466 U.S. 668 , 80 L. Ed. 2d 674 , 104 S. Ct. 2052 (1984), these circumstances meet that case’s two-prong test. As stated by the majority, counsel’s assistance was “unreasonably deficient” and “inexcusable,” which satisfies the first prong. With all due respect to the majority of this court, its analysis of the second prong (whether the defendant has shown a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different) misses the critical question. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Emphasis added.) Chamberlain v. State, 236 Kan. 650 , Syl. ¶ 3, 694 P.2d 468 (1985), applying Strickland v. Washington. In this case, I think the ultimate focus should not be based on mechanical rules but rather on the question of fundamental fairness. See Strickland v. Washington, 466 U.S. at 697 ; Chamberlain v. State, 236 Kan. at 655 . In my opinion, the majority’s emphasis on deference to the trial court’s first-hand view of the proceedings deepens the sense of undermined confidence. The trial court, due to counsel’s erroneous advice, never had the opportunity to see the defendant testify, *613 observe his demeanor, or weigh his credibility. In these circumstances, I think confidence is unwarranted. The United States Supreme Court, in the seminal right to counsel case, Gideon v. Wainwright, 372 U.S. 335, 344 , 9 L. Ed. 2d 799 , 83 S. Ct. 792 (1963), reiterated the “moving words of Mr. Justice Sutherland” in Powell v. Alabama, 287 U.S. 45 , 77 L. Ed. 158 , 53 S. Ct. 55 (1932): “ ‘Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.’ [Citation omitted.]” 372 U.S. at 345. The defendant was deprived of the “guiding hand of counsel” regarding his right to testify in his own defense. In the absence of adequate advice, he was in no better position than a defendant deprived of counsel altogether. Fundamental fairness and confidence in a fair outcome require me to conclude, in accordance with Chamberlain , that there remains a reasonable probability that but for counsel’s unprofessional error, the results of the proceeding would have been different. In accordance with Nix v. Whiteside, I cannot say that counsel’s error, which deprived the defendant of his constitutional right to testify in his own defense, was harmless beyond a reasonable doubt. I would, therefore, conclude that this error warrants reversal and would reverse and remand for a new trial. Allegrucci and Six, JJ., join in the foregoing dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792816. Public record. Not legal advice.