Hunt v. State

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No. 107,662

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

PAUL HUNT,
Appellant,

v.

STATE OF KANSAS,
Appellee.


SYLLABUS BY THE COURT

1.
A claim alleging ineffective assistance of counsel presents mixed questions of fact
and law requiring de novo review. After a full evidentiary hearing, an appellate court
reviews the district court's findings of fact to determine whether they are supported by
substantial competent evidence and, if so, whether those factual findings are sufficient to
support the court's conclusions of law. An appellate court must give deference to the
district court's findings of fact, accepting as true the evidence and any inferences that
support or tend to support the district court's findings. In addition, we give particular
deference to the trial judge who observed counsel's performance firsthand.

2.
Appellate review of the district court's ultimate conclusions of law is de novo.

3.
To establish ineffective assistance of counsel, it is not enough to merely surmise,
with the benefit of hindsight, that another attorney may have tried the case differently.
Rather, before counsel's assistance can be found to be so defective as to require reversal
of a conviction, the defendant must establish two things. First, the defendant must
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establish that counsel's performance was constitutionally deficient. Judicial scrutiny of
counsel's performance in a claim of ineffective assistance of counsel is highly deferential
and requires consideration of the totality of the evidence before the judge or jury. Second,
the defendant must establish that counsel's deficient performance prejudiced the defense.
To establish prejudice, the defendant must demonstrate a reasonable probability that, but
for counsel's deficient performance, the outcome of the proceeding would have been
different.

4.
Although testimony in the form of an opinion otherwise admissible is not
objectionable because it embraces the ultimate issue or issues to be decided by the trier of
fact, witness testimony expressing an opinion on a defendant's overall guilt or innocence
is inadmissible as a matter of law because the defendant in a criminal trial has the right to
have the jury determine from the evidence whether the defendant is guilty or not.

5.
Trial counsel has the responsibility for making tactical and strategic decisions
including the determination of which witnesses will testify. Even though experienced
attorneys might disagree on the best tactics or strategy, deliberate decisions based on
strategy may not establish ineffective assistance of counsel. Strategic choices based on a
thorough investigation of the law and facts are virtually unchallengeable. Nevertheless,
defense counsel may not disregard pursuing a line of investigation and call it trial
strategy.

6.
Considering the context within which it was offered, the opinion testimony at
issue in this case did not invade the jury's role to determine guilt or innocence; thus,
counsel was not deficient for eliciting that testimony as part of the defense trial strategy.

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7.
Even if the opinion testimony had been inadmissible, the outcome of the trial
would not have been different in the absence of such testimony.

8.
Generally, all relevant evidence is admissible. Relevant evidence is defined as
evidence having any tendency in reason to prove any material fact. There are two
elements to relevant evidence: a materiality element and a probative element. Evidence
is material if the fact is significant under the substantive law of the case and properly at
issue. Evidence is probative if it has any tendency in reason to prove a fact. The issue of
whether evidence is probative is reviewed under an abuse of discretion standard whereas
the materiality of evidence is reviewed de novo.

9.
As a rule of necessity, even relevant evidence may be excluded if the court
determines that the probative value of that evidence is substantially outweighed by the
risk of unfair prejudice. Appellate courts review this determination for abuse of
discretion.

10.
Counsel will not be deemed deficient for failing to bring a motion with no legal
basis that would have been denied by the district court.

11.
The Fifth Amendment to the United States Constitution guarantees the right
against self-incrimination, including the right to have a lawyer present during a custodial
interrogation and the right to remain silent. Law enforcement officers are required to
inform suspects of these rights before statements—whether exculpatory or inculpatory—
made in a custodial interrogation may be admitted against them. Once a defendant states
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that he or she wants an attorney, the interrogation must cease until an attorney is present.
It is constitutionally impermissible, and thus error, for the State to elicit evidence at trial
that a defendant did not avail himself or herself of the first opportunity to clear his or her
name when confronted by police officers, but instead invoked the constitutional right to
remain silent.

12.
A constitutional error will be declared harmless if this court concludes beyond a
reasonable doubt that the error, in light of the whole record, had no reasonable possibility
of changing the result of the trial.

13.
Cumulative trial errors, when considered collectively, may require reversal of the
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. If the evidence is overwhelming against
the defendant, however, no prejudicial error may be found based upon this cumulative
error rule. Cumulative error will not be found when the record fails to support the errors
raised on appeal by the defendant.

Appeal from Crawford District Court; DONALD R. NOLAND, judge. Opinion filed May 24, 2013.
Affirmed.

Jason P. Wiske, of Law Office of Jason P. Wiske, L.L.C., of Pittsburg, for appellant.

Natalie A. Chalmers, assistant solicitor general, Andrew D. Bauch, assistant attorney general, and
Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., BUSER and STANDRIDGE, JJ.

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STANDRIDGE, J.: Paul Hunt appeals from the district court's decision to deny his
K.S.A. 60-1507 motion after an evidentiary hearing. Hunt claims the district court erred
in denying his ineffective assistance of counsel claims and in denying his claim for relief
under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Because Hunt
fails to establish that counsel was deficient or that he was prejudiced by the Doyle
violation, we affirm.

FACTS

In its opinion affirming Hunt's conviction on direct appeal, our Supreme Court
summarized the material facts as follows:

"On Sunday, June 23, 2002, family members of Mary Sue Taylor, a resident of
Fort Scott, Bourbon County, Kansas, reported to law enforcement that [Mary Sue] could
not be located. [Mary Sue's] vehicle was parked in the driveway, her house was unlocked,
the television was on, and items that she would normally take with her were still in the
house. Nothing appeared out of the ordinary inside or outside the house. Neighbors
reported last seeing [Mary Sue] the morning of June 20. [Mary Sue] had not appeared at
her job on June 22 and 23.
"At the time of the disappearance, Hunt and his minor child, Ryan, had been
living with [Mary Sue], albeit Hunt and his mother had a volatile, contentious
relationship. Hunt told police that he last saw his mother at about 10:40 p.m. on June 20,
before he left for work. Upon completing his shift on the morning of June 21, Hunt did
not return to his residence before going to the house of his girlfriend, Tammy Rees, in
Cartersville, Missouri. His son, Ryan, was also out of town, visiting maternal
grandparents. After spending the weekend with [Tammy], Hunt returned to the Fort Scott
home about 10:30 p.m. on Sunday, June 23, where the investigation into [Mary Sue's]
whereabouts had commenced.
"Several days later, on June 29, [Mary Sue's] body was found floating in a strip
pit in Crawford County. The body was wrapped in a gray tarp which was tied with rope
and taped, and the tarp-wrapped body was inside a sleeping bag which had also been
wrapped with rope and tape. A rope was around the victim's neck. The coroner opined
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that [Mary Sue] died of ligature asphyxiation and ruled the death a homicide, albeit he
could not determine the date of death. The coroner described the manner in which the
body had been wrapped and secured with rope and tape as a fairly complicated and
involved mechanism.
"Hunt's behavior both before and after the discovery of [Mary Sue's] body caused
some suspicion. The weekend of [Mary Sue's] disappearance, Hunt took some of [Mary
Sue's] clothing to his girlfriend, saying that his mother wanted the girlfriend to have it.
He also brought camping equipment and stored it in his girlfriend's shed. Later testing
revealed that two ropes found with the equipment were consistent with the color,
construction, and chemical composition of the rope around the victim's neck.
"On the day before the discovery of the body, Hunt and a friend were leaving a
convenience store in Missouri when police stopped Hunt's pickup. Hunt declared to his
friend: '[M]an, I'm in trouble,' and fled afoot after imploring his friend not to disclose
that Hunt was driving. The police did not pursue Hunt, and the friend thought Hunt was
concerned about being arrested for driving under the influence.
"The day after the body was discovered, Hunt called his girlfriend to say that he
was leaving town. He left his son with a brother but did not tell family members he was
leaving. The following day he asked his girlfriend to bring soda and cigarettes to a park
in Joplin, Missouri, where he planned to spend the night. He then rode a freight train to
Kansas City, but then hitched a ride on a southbound freight train, eventually winding up
in Emporia. There, he called his brother, Patrick, on July 4 asking Patrick to get him a
motel room and to provide him with a ride back to Fort Scott.
"Hunt did not attend his mother's funeral, ostensibly because his brother, Patrick,
and an uncle were accusing Hunt of being the murderer. Hunt subsequently left the Fort
Scott area, first going to live with Ryan's maternal grandparents in Missouri. He was in
Pennsylvania when he was arrested in March 2005.
"Police also located a witness who had observed a pickup truck parked in a low-
lying area, adjacent to a strip pit situated on the Missouri side of the Missouri-Kansas
border, near evening on June 20, 2002, the last day that [Mary Sue] was seen alive. The
witness, who owned land containing strip pits in the area, proceeded to investigate
whether someone was fishing on his land. As the witness approached the pickup, he
observed a person initially standing next to the passenger door who then entered the
pickup on the driver's side. Upon making contact with the pickup driver, the witness
observed a motionless person in the passenger seat covered with a blanket or sleeping
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bag. In answer to the witness' inquiry, the pickup driver said the passenger was his
sleeping fiancée. Being suspicious of a person being covered up with a blanket in hot
weather, the witness went to the local sheriff's office to report his concerns. At trial, the
witness could not identify Hunt, other than to say that he was about the same size as the
pickup driver. Likewise, the witness' recollection of the pickup was limited to describing
it as being a dark color which comported with the color of Hunt's pickup.
"Because [Mary Sue's] body was discovered in Crawford County, Hunt was tried
in that county. The jury convicted him of first-degree, premeditated murder." State v.
Hunt, 285 Kan. 855, 857-59, 176 P.3d 183 (2008).

At Hunt's jury trial, Agent Frank Papish with the Kansas Bureau of Investigation
(KBI) testified on behalf of the State about the 2-day interview with Hunt in
Pennsylvania after Hunt was arrested for Mary Sue Taylor's murder. On the first day of
the interview, Hunt told Papish he would talk about his mother the next morning and tell
Papish what he needed to know. On the second day of the interview, Hunt did not tell
Papish what happened to his mother.

Hunt testified in his own defense at trial. During his testimony, the State asked
Hunt whether he told Papish everything he knew about the murder of his mother. Hunt
responded to the State's question by stating that he asked for an attorney, and Papish left
the interview. The district court immediately called a bench conference and asked Hunt's
counsel if he wanted an instruction to the jury to disregard Hunt's response. Hunt's
counsel declined the request for an instruction. After the State rephrased the question,
Hunt replied, "There was nothing to tell."

While cross-examining Hunt's brother Patrick Hunt, Hunt's counsel asked if
Patrick requested a warrant to be issued for Hunt's arrest based on Patrick's belief that
Hunt murdered their mother. Hunt's counsel then asked if Patrick was "definitely sure
today that [Hunt] killed her." The State immediately objected and no answer was given.
Hunt's counsel also elicited testimony from Chris Hollingsworth, Mary Sue's son and
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another brother of Hunt, stating that several members of the family, including Chris, had
believed Hunt was responsible for Mary Sue's disappearance.

The jury ultimately convicted Hunt of first-degree, premeditated murder. After the
Supreme Court issued its opinion affirming Hunt's conviction, Hunt filed a motion
pursuant to K.S.A. 60-1507 alleging ineffective assistance of trial counsel. At a
preliminary hearing on the motion, the district court summarily denied relief on all claims
except for the one alleging counsel's ineffectiveness in failing to challenge venue. After
an evidentiary hearing on that claim, the court denied Hunt's motion in its entirety.

Hunt appealed and, in an unpublished opinion, a panel of this court affirmed the
district court's finding and conclusions on some issues but reversed and vacated the
district court's decision on others and remanded the case with directions. Specifically, the
panel found that Hunt was entitled to a full evidentiary hearing on his ineffective
assistance claims regarding (1) counsel's failure to object on relevancy grounds to
Papish's testimony; (2) counsel's failure to object to questions posed by the State to Hunt
regarding his meeting with Papish; (3) counsel's failure to request a cautionary instruction
after the Doyle violation; and (4) counsel's actions in eliciting opinion testimony from
Hunt's brothers on the question of guilt. Hunt v. State, No. 103,073, 2011 WL 1475778,
at *9-10 (Kan. App.) (unpublished opinion), rev. denied 293 Kan. ___ (2011).

The district court held that evidentiary hearing on February 24, 2012. Based on the
evidence presented at the hearing, the court found Agent Papish's testimony to be highly
relevant outside the scope of Doyle; thus, Hunt's trial counsel was not ineffective in
failing to object to it as irrelevant. Relying on the Kansas Supreme Court's decision in
Hunt's direct appeal, the district court also found that although the State committed a
Doyle violation in questioning Hunt about the second day of his interview with Papish,
Hunt failed to establish prejudice based on his counsel's failure to object. The district
court further found that Hunt's counsel was not ineffective for failing to request a
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cautionary instruction as to the Doyle violation because the decision was based on trial
strategy. Finally, the district court concluded that counsel was not ineffective in asking
Hunt's brothers whether they thought Hunt murdered their mother because the questions
were a matter of trial strategy, and even if counsel were ineffective, Hunt failed to
establish prejudice.

ANALYSIS

On appeal, Hunt asserts the district court erred (1) in finding that Hunt's trial
counsel was not ineffective and (2) in finding that Hunt could not establish prejudice
from the Doyle violation that arose during his cross-examination. Hunt further asserts that
even if the individual instances of error are insufficient to grant him relief, the cumulative
errors establish that he was deprived of a fair trial.

1. Ineffective Assistance of Counsel

A claim alleging ineffective assistance of counsel presents mixed questions of fact
and law requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089
(2011). After a full evidentiary hearing, an appellate court reviews the district court's
findings of fact to determine whether they are supported by substantial competent
evidence and, if so, whether those factual findings are sufficient to support the court's
conclusions of law. An appellate court must give deference to the district court's findings
of fact, accepting as true the evidence and any inferences that support or tend to support
the district court's findings. Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007).
In addition, we give particular deference to the trial judge who observed counsel's
performance firsthand. Chamberlain v. State, 236 Kan. 650, 659-60, 694 P.2d 468
(1985). Appellate review of the district court's ultimate conclusions of law is de novo.
Bellamy, 285 Kan. at 354-55.

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To establish ineffective assistance of counsel, it is not enough to merely surmise,
with the benefit of hindsight, that another attorney may have tried the case differently.
Rather, before counsel's assistance can be found to be so defective as to require reversal
of a conviction, the defendant must establish two things. First, the defendant must
establish that counsel's performance was constitutionally deficient. Judicial scrutiny of
counsel's performance in a claim of ineffective assistance of counsel is highly deferential
and requires consideration of the totality of the evidence before the judge or jury. Second,
the defendant must establish that counsel's deficient performance prejudiced the defense.
To establish prejudice, the defendant must demonstrate a reasonable probability that, but
for counsel's deficient performance, the outcome of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674, reh. denied 467 U.S. 1267 (1984); Harris v. State, 288 Kan. 414, 416, 204 P.3d 557
(2009).

a. Ineffective Assistance of Counsel Related to the Testimony of Hunt's Brothers

In his first claim of ineffective assistance, Hunt asserts his trial counsel was
ineffective for asking Hunt's brothers, Patrick and Chris, for their respective opinions on
whether Hunt was guilty of murdering their mother. Notably, testimony in the form of an
opinion otherwise admissible is not objectionable because it embraces the ultimate issue
or issues to be decided by the trier of fact. K.S.A. 60-456(d). By way of example, Kansas
courts have found that nonexpert witnesses who have been shown to have had special
opportunities to observe may give opinion evidence as to sanity and intoxication. City of
Dodge City v. Hadley, 262 Kan. 234, 240-41, 936 P.2d 1347 (1997) (citing State v.
Shultz, 225 Kan. 135, 587 P.2d 901 [1978], and State v. Townsend, 146 Kan. 982, 986, 73
P.2d 1124 [1937]). But witness testimony expressing an opinion on a defendant's overall
guilt or innocence necessarily falls outside the scope of K.S.A. 60-456(d) because it "is
inadmissible as a matter of law." State v. Drayton, 285 Kan. 689, 701, 175 P.3d 861
(2008). This is because "[i]n a criminal trial, the defendant has the right to have the jury
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determine from the evidence whether the defendant is guilty or not." State v. Steadman,
253 Kan. 297, 304, 855 P.2d 919 (1993).

With these legal principles in mind, we turn to the testimony provided by Hunt's
brothers. Patrick testified that he was living in South Dakota when he learned about his
mother's disappearance sometime in June 2002. After Chris called Patrick on July 2,
2002, to report that an unidentified body had been found that could be their mother,
Patrick drove 12 hours from South Dakota to the Fort Scott area. During cross-
examination, Patrick acknowledged that he went to the Fort Scott Police Department on
July 7, 2002, to tell Sergeant Curtis Bowman that he believed Hunt murdered their
mother and to request that a warrant be issued to arrest Hunt for the crime. Patrick also
acknowledged that he met with KBI Agent Bruce Adams the following day, July 8, 2002:

"Q. And that's—did you tell Officer Adams that you suspected Paul Hunt was the person
involved in the disappearance and murder of your mother?
"A. I believe my comment was he could be involved, yes.
"Q. And what was the basis for that?
"A. My personal opinion was based on behavior that I had witnessed.
"Q. What behavior had you witnessed that caused you to come to that conclusion?
"A. Several forms of behavior. One of them being leaving, the train incident, you know,
running away and that type of behavior, sir, and also comments that he had made to
me directly.
"Q. What comments had he made?
"A. One I referred to earlier was one of them. That stands out in my mind. There was—
seemed to have been overall disgust that he was showing."

Counsel further cross-examined Patrick:

"Q. Would it be a fair statement that you came to the conclusion very quickly that Paul
was guilty?
"A. No sir.
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"Q. You don't consider a few days after the body was found that you had already made
that decision to be quick?
"A. I had not made that decision at that time, sir, a few days after, no.
"Q. Well, I mean, you requested—
"A. Was there suspicion, suspected, yes. Definite, no.
"Q. Now, are you definitely sure today that he killed her?
"MR. BAUCH: Your Honor, I'm going to object. This is a question for the jury to
decide.
"THE COURT: Probably it is irrelevant in any event. I will sustain the
objection."

Chris' opinion testimony consisted of the following:

"Q. After your mother was found, did you and Pat[rick] have any discussions about what
might have happened to her?
"A. Yes, we did.
"Q. And did any of those involve [Hunt] being responsible?
"A. Yes, it did.
"Q. By the time of the funeral, several of you believed that [Hunt] was the responsible
person; is that correct?
"A. Yes."

Based on testimony from Hunt's counsel at the K.S.A. 60-1507 evidentiary hearing
that the questions set forth above were asked as a matter of trial strategy, the district court
ultimately concluded that counsel was not ineffective for asking Patrick and Chris for
their respective opinions on whether Hunt was guilty of murdering their mother.
Specifically, the district court concluded that Hunt's counsel had to combat the evidence
of Hunt's "exceedingly incriminating and bizarre" actions following his mother's
disappearance, like jumping on trains, hiding in the park, not attending his mother's
funeral, and making unusual comments. The theory of defense to explain this behavior
was that Hunt had discovered his family members believed he killed Mary Sue and that
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he was experiencing a great deal of stress as a result of those unjust accusations. The
judge noted that Hunt's counsel was

"given a certain set of facts and they have to deal with those facts and attempt to mitigate
those facts the best they could, and this is the only real way they could play these cards to
mitigate the evidence against you, to explain that your actions were premised upon your
family's belief that you were guilty, and to explain that this belief came about arbitrarily
and very early on in the process before any evidence was even developed to tie you to
your mother's murder."

The judge repeatedly suggested that Hunt's counsel did not have much choice and that it
would have been a more serious error to have left Hunt's bizarre actions unexplained
from which the jury could draw inferences.

In discussing trial strategy, our Supreme Court has explained that strategic
decisions made by trial counsel based on a thorough investigation are virtually
unchallengeable:

"Trial counsel has the responsibility for making tactical and strategic decisions
including the determination of which witnesses will testify. Even though experienced
attorneys might disagree on the best tactics or strategy, deliberate decisions based on
strategy may not establish ineffective assistance of counsel. Strategic choices based on a
thorough investigation of the law and facts are virtually unchallengeable." Flynn v. State,
281 Kan. 1154, Syl. ¶ 5, 136 P.3d 909 (2006).

Nevertheless, defense counsel may not "disregard pursuing a line of investigation and call
it 'trial strategy.'" State v. James, 31 Kan. App. 2d 548, 554, 67 P.3d 857, rev. denied 276
Kan. 972 (2003). "[W]hen 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, rev. denied
274 Kan. 1113 (2002). Upon review, "[s]trategic choices based on less than a complete
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investigation are reasonable to the extent that reasonable professional judgment supports
the limitation on the investigation." Flynn, 281 Kan. at 1157.

The district court's finding that trial counsel asked the questions at issue based on
trial strategy is supported by sufficient evidence in the record of the evidentiary hearing.
Both of Hunt's trial attorneys testified that the questions were based on the trial strategy
of explaining Hunt's bizarre behavior. Attorney Philip Bernhart testified that he asked
Hunt's brothers about their opinions on whether Hunt was guilty of murdering their
mother because he was trying to do two things: (1) to show that Chris' opinion had come
about very early on and was not based on rationality, just wild speculation and (2) to
explain Hunt's bizarre behavior, "which was a major problem," by showing that it was a
response to his family accusing him of being the killer. Bernhart also said that he was
trying to show the brothers' bias on the day of the trial. Bernhart explained that the
brothers' testimony confirmed Hunt's own testimony that he believed they were accusing
him of murder.

Hunt's other attorney, David Clark, also testified that the defense's trial strategy
was to explain Hunt's bizarre behavior. Clark said he thought asking the brothers
questions about their opinions on whether they had believed Hunt was guilty of
murdering their mother was important because it "confirmed that Mr. Hunt's beliefs were
accurate in terms of his brothers' feelings." Clark also testified that Hunt's anticipated
testimony on that issue subsequently would have opened the door for the brothers'
testimony to come in anyway; therefore, it was better for the defense to introduce it
before the State did in order to characterize it in the best way possible.

Although there is sufficient evidence in the record to support the district court's
finding that trial counsel asked these questions based on trial strategy, Hunt argues
counsel's actions in effecting that strategy permitted the jury to consider inadmissible
opinion evidence regarding his guilt, which necessarily establishes deficient performance
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as a matter of law. Taken in context, however, we are not persuaded that Patrick's and
Chris' testimony amounts to inadmissible opinion evidence.

As set forth above, a witness cannot testify that in his or her opinion the defendant
is guilty. See Steadman, 253 Kan. at 304. Allowing such testimony invades the jury's role
to determine guilt or innocence based on the totality of the evidence presented at trial.
Considering the context within which it was offered, however, we find the testimony
provided by Patrick and Chris was limited in both scope and time to the perceptions and
beliefs they held while the police were investigating the murder in the few days after their
mother's body had been discovered. As a result, this testimony did not invade the jury's
role to determine guilt or innocence based on the totality of the evidence presented at
trial. In so finding, we acknowledge that defense counsel did ask Patrick on the day of
trial whether he still believed Hunt killed their mother, but the trial court sustained the
State's objection to the question and Patrick was not permitted to respond. Given the
narrow context in which Patrick and Chris actually testified regarding their opinions, we
are not persuaded that the opinion testimony at issue here invaded the jury's role to
determine guilt or innocence based on the evidence presented at trial. Because the
testimony was otherwise admissible, defense counsel's strategic decision to elicit such
testimony cannot be considered deficient performance.

Even if we had found trial counsel's performance deficient in asking Hunt's
brothers for their respective opinions on whether they believed in the few days after their
mother's body was found that Hunt was guilty of murdering their mother, Hunt has failed
to establish the second prong of an ineffective assistance of counsel claim: that this
testimony prejudiced his defense. Establishing prejudice requires a showing that counsel's
errors were so severe as to deprive the defendant of a fair trial. Strickland, 466 U.S. at
687; Harris, 288 Kan. at 416. Specifically, the defendant must demonstrate a reasonable
probability that, but for counsel's deficient performance, the outcome of the proceeding
16

would have been different. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Harris, 288 Kan. at 416.

Hunt argues the opinion testimony at issue significantly prejudiced his defense
because there was no direct evidence of his guilt presented at trial and the circumstantial
evidence presented was not overwhelming. Hunt is correct that the evidence in this case
was circumstantial and not overwhelming. The Kansas Supreme Court itself said so in
Hunt's direct appeal, noting that "by any measure, the State's evidence in this case was
not of a direct and overwhelming nature." Hunt, 285 Kan. at 874. But a finding that
evidence is circumstantial and less than overwhelming falls far short of the standard
necessary to establish prejudice here: a reasonable probability that, but for counsel's
deficient performance, the outcome of the proceeding would have been different. Based
on the following evidence, we do not believe such a reasonable probability exists.

As a preliminary matter, there was evidence presented at the trial that Hunt's odd
behavior began before his brothers accused him of the murder. Specifically, Hunt's
girlfriend, Tammy Rees, testified that Hunt gave her his mother's clothes the weekend
that she went missing, claiming that his mother had grown out of them and wanted
Tammy to have them—even though Mary Sue had never given Tammy any clothes
before and the two women were not that close. Tammy also testified that Hunt brought a
large quantity of camping equipment to her house before Mary Sue went missing, which
later turned out to include a rope that was consistent with the rope found on Mary Sue's
body.

Moreover, Chris testified that right after Hunt learned that his mother went
missing, Hunt told Chris, "[I]t will not go to Court." Chris further stated Hunt told him
that "if you really wanted to get away with it, you could, if you really wanted to." Finally,
Chris testified that while he and Hunt were putting up missing person posters before the
police discovered Mary Sue's body had been dumped in a strip pit, Hunt commented that
17

"Terry Taylor [Mary Sue's ex-husband] knows every strip pit from here to West Mineral"
just as they were nearing the strip pit where Mary Sue's body was later found. The State
also presented a witness who stated that, 3 days before Hunt's mother was reported
missing, he saw a man near the strip pits in a dark-colored truck, consistent with the color
of Hunt's truck, and that the man claimed a motionless person in the passenger seat
covered with a blanket was his sleeping fiancée.

Although we find the facts set forth above effectively eliminate any reasonable
probability that the verdict would have been different if counsel had not asked Patrick
and Chris to provide their opinions, there is also additional support for such a finding.
Specifically, the particular opinion evidence about which Hunt complains was presented
to the jury through two other sources besides his brothers: his own testimony and the
testimony of Officer Adams, who testified that Patrick told him he believed Hunt was
involved in the disappearance and murder of his mother. In fact, the district court
commented at the evidentiary hearing that the brothers' testimony was essentially the
"same thing" as Hunt's testimony in that it conveyed to the jury that his brothers thought
he was guilty.

Based on the discussion above, Hunt has failed to establish that the opinion
testimony provided by his brothers was inadmissible in the first instance; thus, counsel
was not deficient for eliciting that testimony as part of the defense trial strategy. And,
even if Hunt had established the opinion testimony was inadmissible, Hunt has failed to
demonstrate how the outcome of the trial would have been different had the testimony in
dispute been presented to the jury only through Officer Adams and Hunt.

b. Ineffective Assistance of Counsel Related to the Testimony of Agent Papish

Next, Hunt claims his trial counsel was ineffective for failing to file a motion in
limine or to object to the testimony of Agent Papish on grounds that the testimony was
18

not relevant. Again, to support a claim of ineffective assistance of counsel, the defendant
must 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. Thompson, 293 Kan. at 715.

Generally, all relevant evidence is admissible. State v. Patton, 280 Kan. 146, 156,
120 P.3d 760 (2005), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144
P.3d 647 (2006). Relevant evidence is defined as "evidence having any tendency in
reason to prove any material fact." K.S.A. 60-401(b). There are two elements of relevant
evidence: a materiality element and a probative element. State v. Houston, 289 Kan. 252,
261-62, 213 P.3d 728 (2009). Evidence is material if the fact is "'"significant under the
substantive law of the case and properly at issue."'" State v. Reid, 286 Kan. 494, 505, 186
P.3d 713 (2008). Evidence is probative if it has "'any tendency in reason to prove'" a fact.
286 Kan. at 505. The issue of whether evidence is probative is reviewed under an abuse
of discretion standard whereas the materiality of evidence is reviewed de novo. State v.
Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010).

As a rule of necessity, however, even relevant evidence may be excluded if the
court determines that the probative value of that evidence is substantially outweighed by
the risk of unfair prejudice. Patton, 280 Kan. at 156 (quoting State v. Meeks, 277 Kan.
609, 618, 88 P.3d 789 [2004]). Appellate courts review this determination for abuse of
discretion. State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009).

At the K.S.A. 60-1507 evidentiary hearing on this issue, the district court found
that Hunt was Mirandized, waived his Miranda rights, agreed to talk with Papish, and did
not invoke his Miranda rights on the first day of his interview with Agent Papish. See
Miranda v. Arizona, 384 U.S. 436, 460, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385
U.S. 890 (1966). The court also found that Hunt's invitation to talk the following day
intimated that he knew what happened to his mother, which was relevant and admissible
19

evidence. The court specifically found that Papish's testimony regarding Hunt's intention
to talk the following day did not constitute a Doyle violation because Hunt had not
invoked his Miranda rights that first day, had not agreed to talk, and had, in fact,
remained silent. The court ultimately concluded that "the first interview conducted
between Agent Papish and [Hunt] was admissible, relevant, and did not violate Doyle
because [Hunt] freely and voluntarily waived his rights."

On appeal, Hunt argues that Papish's testimony about Hunt's intention to talk the
following day was irrelevant because Hunt ultimately did not make any statements that
could be connected with other evidence to bolster the State's case. As Hunt's own counsel
stated at the K.S.A. 60-1507 evidentiary hearing, however, Hunt's statements to Papish
were relevant in their own right because they implied "'if you will come back, I will have
something to tell you.'" Even the Kansas Supreme Court noted in Hunt's direct appeal
that "[t]he inference to be drawn from that testimony was that Hunt possessed personal
information about the murder." Hunt, 285 Kan. at 872. This evidence was probative
because it had a tendency to prove that Hunt knew something about his mother's death.
And Hunt's knowledge about his mother's death was a material fact because Hunt's
involvement in the murder was significant under the substantive law of the case and
properly at issue.

To that end, both of Hunt's attorneys testified at the K.S.A. 60-1507 evidentiary
hearing that they thought there was no legal basis to suppress Papish's testimony. In fact,
the district court stated at the evidentiary hearing that "had a motion to suppress of that
particular interview been filed by your counsel . . . it would have been denied by the
Court because there is simply no basis." Hunt's counsel was certainly not ineffective for
failing to bring a motion with no legal basis that would have been denied by the district
court. See State v. Gleason, 277 Kan. 624, 648, 88 P.3d 218 (2004) (finding that counsel
was not ineffective for failing to object to admissible, relevant evidence that the court
would have admitted even if counsel had objected).
20

For the reasons stated above, the district court did not err in finding no merit to
Hunt's claim that trial counsel was ineffective for failing to file a motion in limine or to
object to the testimony of Agent Papish on grounds that the testimony was not relevant.
Because Hunt failed to establish his counsel's performance was deficient, we do not need
to address the prejudice prong of the Strickland ineffective counsel test.

2. The Doyle Violation—Hunt's Testimony

Although he did so in his first K.S.A. 60-1507 appeal, Hunt does not frame the
Doyle violation as an ineffective assistance of counsel claim but instead as a deprivation
of due process. Specifically, Hunt claims the admission of evidence at trial indicating that
he invoked his constitutional right to remain silent deprived him of a fair trial; thus he is
entitled to a new trial under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91
(1976).

The Fifth Amendment to the United States Constitution guarantees the right
against self-incrimination, including the right to have a lawyer present during a custodial
interrogation and the right to remain silent. U.S. Const. amend V; Miranda, 384 U.S. at
479. Consequently, Miranda requires law enforcement officers to inform suspects of
these rights before statements—whether exculpatory or inculpatory—made in a custodial
interrogation may be admitted against them. 384 U.S. at 444; State v. Cosby, 285 Kan.
230, 241, 169 P.3d 1128 (2007). Once a defendant states that he or she wants an attorney,
the interrogation must cease until an attorney is present. Miranda, 384 U.S. at 473-74. "It
is constitutionally impermissible for the State to elicit evidence at trial of an accused's
post-Miranda silence." State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998)
(citing Doyle, 426 U.S. at 618). This violation is called a Doyle violation, which occurs
when the State attempts to argue or introduce evidence that the defendant did not avail
himself or herself of the first opportunity to clear his or her name when confronted by
21

police officers, but instead invoked the constitutional right to remain silent. Edwards, 264
Kan. at 195; State v. Pruitt, 42 Kan. App. 2d 166, 172, 211 P.3d 166 (2009).

Agent Papish interviewed Hunt after his arrest over the course of 2 days. On the
first day, Papish asked Hunt to "tell me about your mother and what happened," but Hunt
said several times that he would talk about it the next morning and tell Papish what he
needed to know. When Papish returned the next morning, Hunt invoked his Miranda
right to an attorney, and Papish left.

During Hunt's trial, the district court suppressed the videotape from the first day of
the interview, finding the tape inadmissible because it had no probative value since Hunt
did not make any incriminatory statement and Hunt's long periods of silence were unduly
prejudicial because they implied that he refused to defend himself when given the
opportunity to do so. Nevertheless, the district court ruled that the State would be
permitted to "fully explore the conversation [from the first interview day]." With that
said, the district court also ruled that Papish would not be allowed to testify that Hunt had
invoked his right to an attorney on that second day.

Once on the stand, Papish testified about the first day's interview and Hunt's
statements indicating that Hunt would talk with Papish the following day. When asked by
the State if Hunt told him what happened to his mother on that second day, Papish
responded, "No, he did not."

When Hunt later took the stand, the State cross-examined him as follows:

"Q. Do you recall speaking to Agent Papish out in Pennsylvania after you had been
arrested?
"A. I remember some of it, yes.
22

"Q. And you told him—he asked you I want to talk about your mom's murder and you
told him not once, not twice, but three to four times I will tell you everything you
want to know about the murder of her in the morning. You told him that, didn't you?
"A. Meaning I would tell him everything I know in the morning, yes.
"Q. Did you tell Agent Papish everything you knew?
"A. After I asked for an attorney, he left me.
"THE COURT: Hold on just a second. Come forward, please."

The district court then called a bench conference, during which Hunt's counsel declined
the court's offer for an instruction to the jury to disregard Hunt's response. The court then
allowed the State to ask the following:

"Q. Did you tell him everything you knew about the murder of your mother Mary Sue
Taylor, yes or no?
"A. There was nothing to tell."

In the context of Hunt's claim of prosecutorial misconduct on direct appeal, the
Kansas Supreme Court found that both the State's question to Hunt and his first response
constituted a Doyle violation, because the question "on its face 'attempts to impeach
[Hunt's] credibility at trial by arguing or by introducing evidence that [Hunt] did not avail
himself . . . of the first opportunity to clear his or her name when confronted by police
officers.'" Hunt, 285 Kan. at 872. It explained that "[e]ven in context, the question
suggested that Hunt knew something about the murder that he failed to share with Agent
Papish and that the jury should discount Hunt's trial testimony because of the unfavorable
inference to be drawn from that silence." 285 Kan. at 872. Thus, the court found the
question impermissible under the first step of the prosecutorial misconduct analysis.

Nevertheless, the Kansas Supreme Court went on to find that the Doyle violation
did not constitute plain error requiring reversal under the second step of the prosecutorial
misconduct analysis, which requires the court to consider "'(1) whether the misconduct
23

was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's
part; and (3) whether the evidence was of such a direct and overwhelming nature that the
misconduct would likely have had little weight in the minds of jurors.'" Hunt, 285 Kan. at
872. In so finding, the court stated:

"We perceive the most harmful evidence was Agent Papish's description of the initial
interview with Hunt, in which Hunt said several times that he would talk with the agent
the next morning about what happened to his mother. The inference to be drawn from
that testimony was that Hunt possessed personal information about the murder. In
comparison, the fact that Hunt did not carry through with his promise to talk about the
murder is rather harmless. Especially, in light of Hunt's ultimate answer, 'There was
nothing to tell.'" Hunt, 285 Kan. at 872-73.

Although in the context of prosecutorial misconduct as opposed to the due process
claim asserted in Hunt's K.S.A. 60-1507 motion, the district court here relied on the
Supreme Court's finding to similarly hold that Hunt's testimony about his second day of
interviews with Papish was a Doyle violation but that "this limited error was not so
serious as to deprive [Hunt] of a fair trial or to undermine the Court's confidence in the
outcome of the case." In support of this holding, the district court found that the State had
a strong case against Hunt and that the violation was rather harmless, especially in light
of Hunt's ultimate answer that "[t]here was nothing to tell." The district court concluded:

"[I]n light of the evidence, the weight of the evidence against you, in light of the fact that
the Supreme Court has indicated that it was relatively harmless, and even without that
finding by the Supreme Court, in a week-long jury trial, a lot of witnesses testifying, a lot
of pieces of the puzzle, so to speak, to piece together, I don't see that this one comment,
that was a Doyle violation, undermines my confidence in the jury's verdict. I think,
certainly, the jury's verdict should survive this Doyle violation."

Hunt claims the district court erred in concluding that the Doyle violation was
harmless. We disagree.
24

In State v. Ward, 292 Kan. 541, 556-65, 256 P.3d 801 (2011), cert. denied 132 S.
Ct. 1594 (2012), our Supreme Court clarified the harmless error standard applied to
claims of constitutional error. The degree of certainty by which the court must find a
constitutional error is harmless beyond a reasonable doubt that there was no impact on
the trial's outcome. That means that the error will be declared harmless if this court
concludes beyond a reasonable doubt that the error, in light of the whole record, had no
reasonable possibility of changing the result of the trial. Ward, 292 Kan. 541, Syl. ¶ 6.

Applying this legal standard, the narrow question presented here is whether this
court—in light of the record as a whole—can conclude beyond a reasonable doubt that
the following question posed by the State and the following response provided by Hunt
had no impact on the trial's outcome:

"Q. Did you tell Agent Papish everything you knew?
"A. After I asked for an attorney, he left me.
. . . .
"Q. Did you tell him everything you knew about the murder of your mother Mary Sue
Taylor, yes or no?
"A. There was nothing to tell."

Hunt contends that in the absence of the first question and answer, there is at least
a reasonable possibility that the outcome of the trial would have been different. In
support of this contention, Hunt argues the case against him was circumstantial at best
and weighed heavily on the question of whether his strange behavior was due to his guilt
or the pressure he felt from his family's accusations. Hunt claims that the case essentially
was a credibility contest between himself and his brothers and that the statement he made
about requesting an attorney critically damaged his credibility in the eyes of the jury
because, to the common juror, an innocent man would not invoke his right to an attorney.

25

First of all, the fact that the evidence of Hunt's guilt was circumstantial and not
overwhelming does not mean the statement he made about requesting an attorney
impacted the trial's outcome. Instead, we are required to review the Doyle violation in
light of the whole record in order to determine whether we can conclude beyond a
reasonable doubt that the violation had no impact on the trial's outcome.

The evidence presented in this case established that prior to her death, Mary Sue,
Hunt, and Hunt's son lived together in a rental home located in Fort Scott. Mary Sue and
Hunt shared the bills and often fought over them. Mary Sue reported to Hunt's brothers
and her own brother that Hunt had opened up credit card accounts in her name and made
purchases on those cards without her authorization. Although Hunt testified at trial that
he did not do so, he thereafter admitted that he fraudulently filled out the credit card
applications.

At approximately 7 a.m. on June 20, 2002, Hunt arrived home after working the
graveyard shift at his job. That same day, Mary Sue arrived home around 5:30 p.m. Both
were alone in the house from that time to approximately 10:45 p.m. During the course of
the day and evening, Hunt called his girlfriend many times, although there were no calls
between 2:36 p.m. and 8 p.m.

Near evening on that same day, a witness observed a pickup truck parked in a low-
lying area, adjacent to a strip pit situated on the Missouri side of the Missouri-Kansas
border. As the witness approached the pickup, he observed a person initially standing
next to the passenger door who then entered the pickup on the driver's side. Upon making
contact with the pickup driver, the witness observed a motionless person in the passenger
seat covered with a blanket or sleeping bag. In answer to the witness' inquiry, the pickup
driver said the passenger was his sleeping fiancée. Being suspicious about a person
covered up with a blanket in hot weather, the witness went to the local sheriff's office to
report his concerns.
26

Hunt ended his work shift around 7 a.m. on Friday, June 21. He cashed his
paycheck and drove to Tammy's house in Carterville, Missouri. Hunt arrived at her house
that morning with a parcel of his mother's clothes. Tammy thought the gift of clothing
was unusual because she and Hunt recently had begun dating, and she barely knew Mary
Sue. Hunt also brought a truckload of plastic totes filled with camping equipment and
stored the totes in her shed.

Hunt arrived home late in the evening on June 23 to find several members of his
family investigating the whereabouts of Mary Sue. No one had seen or heard from Mary
Sue after June 20, and she did not report to her scheduled work at the hospital. Right after
Hunt learned that his mother was missing, he told Chris, "[I]t will not go to Court." Hunt
then told Chris that "if you really wanted to get away with it, you could, if you really
wanted to."

Between June 23 when Hunt returned home to find his family searching for his
mother and June 29 when the police discovered his mother's body, the family searched
for Mary Sue. During this period of searching, Hunt was driving with his brother and
sister-in-law near Arcadia where authorities eventually found Mary Sue's body, when
Hunt declared that "Terry Taylor [Mary Sue's ex-husband] knows every strip pit from
here to West Mineral." Hunt made this remark days before the police found the victim in
a nearby strip pit.

On June 28, Hunt visited his friend Frank Ames in Carterville. They purchased
some beer at a convenience store. As they were leaving in Hunt's truck, the police
initiated a traffic stop, at which time Hunt told Frank, "[M]an, I'm in trouble." Hunt
instructed Frank not to tell them who was driving and then jumped out of the truck and
ran from the police.

27

On June 29, the police discovered a body thought to be Mary Sue's wrapped in a
blanket and a tarp and floating in a Crawford County strip pit. A few hours after
receiving notice that the police found a body in a nearby strip pit, Hunt called Tammy
and said, "I love you, I'm leaving." Without telling anyone, Hunt then left his son and
family behind and hitched a freight train to Joplin, Missouri. Once in Joplin, Hunt hid in
the park and called Tammy to ask her if she could bring him cigarettes and a Dr. Pepper.
She did. Hunt then hopped a freight train to Kansas City after which he hopped another
freight train heading in the opposite direction, ending up in Emporia.

After authorities confirmed the body was Mary Sue, the police went to Tammy's
house and confiscated Hunt's totes. The totes contained an assortment of camping
equipment including tarps, tents, lantern mantles, plates, foil, and utensils. The police
found rope in one of the totes with a pink and white braided pattern. Testing later
revealed that the rope found in Hunt's tote had the same pattern, size, and chemical
composition as the rope binding the victim's corpse. The State emphasized the
significance of the chemical composition match by showing a different sample that was
similar to the rope found in Hunt's tote in terms of look, manufacturer, and lot number,
but actually different at the composition level.

In addition to the rope, the police also found masking tape at the home Hunt
shared with Mary Sue that had the same chemical composition to the tape binding the
victim's body. The tape on her body and the tape from the house had the same width,
thickness, chemical composition of the tape backing, and chemical composition of the
tape adhesive.

Based on the evidence presented to the jury as set forth above, as well as the fact
that the Doyle violation was fleeting and confined to one question and one answer, we
conclude beyond a reasonable doubt that the Doyle violation had no impact on the trial's
outcome.
28

3. Cumulative Error

Hunt's final claim on appeal is that even if each of the individual errors committed
by his counsel were not ineffective assistance of counsel, the cumulative effect of those
errors are sufficient to constitute ineffective assistance. In support of this claim, Hunt
points to the State's underwhelming evidence and the Kansas Supreme Court's opinion in
Hunt's direct appeal, which noted that "by any measure, the State's evidence in this case
was not of a direct and overwhelming nature." Hunt, 285 Kan. at 874.

Cumulative trial errors, when considered collectively, may require reversal of the
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. If the evidence is overwhelming against
the defendant, however, no prejudicial error may be found based upon this cumulative
error rule. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). However,
"[c]umulative error will not be found when the record fails to support the errors raised on
appeal by the defendant. [Citations omitted.]" State v. Cofield, 288 Kan. 367, 378, 203
P.3d 1261 (2009). The Kansas Supreme Court has considered cumulative error in an
ineffective assistance of counsel claim before. See Thompson, 293 Kan. at 721. Thus, it is
possible for individual errors of counsel to cumulatively constitute ineffective assistance
of counsel.

After the evidentiary hearing, the district court judge addressed Hunt:

"I am the one that heard the trial. I think your attorneys did a fine job in representing you.
They left no stone unturned. They presented the best case they could with the facts that
then existed.
. . . .
". . . This was a strong circumstantial case against you that the State was able to
put together, and I am confident that the outcome of your case is a fair outcome, is a valid
29

outcome, and my confidence, again, in the outcome is not undermined through the
actions of your attorney."

We agree that the State had a strong circumstantial case against Hunt. Although
the evidence supporting the verdict may not have been direct or overwhelming, we have
considered the totality of circumstances and conclude that Hunt was not substantially
prejudiced or denied a fair trial.

Affirmed.