State v. Adams

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,236

STATE OF KANSAS,
Appellee,

v.

ASA ADAMS,
Appellant.


SYLLABUS BY THE COURT

1.
On the record in this first-degree felony murder case, the defense invited any
procedural or substantive error that may have existed in the district judge's response to a
question from the jury during its deliberations. This court therefore does not reach the
merits of the defendant's arguments regarding that response.

2.
In this first-degree felony murder case arising out of abuse of the child victim, in
which four medical experts testified for the State and the only witness for the defense was
the defendant, the district judge did not err by adding expert witness language from PIK
Civ. 4th 102.50 to the language of PIK Crim. 3d 52.09 when instructing the jury on the
weight and credit to be given the testimony. The instructions as given were fair and
accurate statements of the law that would not reasonably have misled the jury.

3.
The district judge in this first-degree felony murder case did not err in denying,
after an evidentiary hearing including extensive testimony from the defendant and her
trial counsel, defendant's motion for new trial based on ineffective assistance of that
2



counsel. Counsel's performance was well within the bounds of that constitutionally
required, and the defendant was not prejudiced by that performance.

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed April 29, 2011.
Affirmed.

Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This is a direct appeal in defendant Asa Adams' first-degree felony
murder case. Adams argues that the district judge erred in his answer to a jury question
and in giving an expert witness instruction and that she received ineffective assistance of
counsel, necessitating a new trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Adams' felony-murder conviction arose out of events on May 16, 2007, when she
was home alone with her two children, 1-year-old Shymire and 4-month-old Righteous.
Early that evening, Adams placed Shymire in a bath. Ultimately, she called 911 because
Shymire needed emergency medical care. Exactly what transpired between was subject to
dispute before the district court.
When Shymire reached the hospital, she was treated for head trauma, severe burns
to her lower legs and feet, and other injuries. Despite efforts to save her, Shymire was
3



declared brain dead on May 22, 2007; and the court ordered her life support to be
terminated on May 24, 2007. Shymire's heart stopped beating soon after.

Adams was charged with first-degree felony murder, predicated upon felony child
abuse, as defined in K.S.A. 21-3609. She pleaded not guilty.

The State's theory of the case was that medical evidence established Shymire's
cause of death as traumatic brain injury, complicated by severe burns and other injuries,
and that Adams was the only person with an opportunity to inflict the injuries. Its
evidence consisted of testimony from medical first responders, police officers, an
apartment manager, treating physicians, and a medical examiner. The defense theory of
the case was that Shymire's injuries resulted from accidents and were unintentionally
exacerbated by defendant's untrained effort to resuscitate her daughter. Adams was the
only defense witness. Her lack of memory of certain events was attributed to her illegal
drug use on the day of Shymire's injuries and the stress of the entire ordeal.

Given Adams' claim that she received ineffective assistance of counsel at her trial,
and the requirement that we pass on prejudice, it is necessary to include the following
extensive review of the evidence presented to the jury and the evidence supporting
Adams' motion for new trial.

The State's first trial witness was Chad Maugans, a paramedic from Sedgwick
County EMS. He testified that he and his partner were dispatched to a seizure call at
Adams' apartment and arrived there at 5:18 p.m. During the drive, the call was
recategorized to a choking injury. Upon his entry into the apartment, he testified, Shymire
was seated on the couch and had little to no consciousness. She was staring ahead of her,
making no noises. Maugans noticed burns on her leg and feet and observed mucus in her
nose and mouth, although she was breathing. He cleared her airways. As she was being
4



moved to the ambulance, Maugans notified the hospital that it had a burn victim on her
way. On route, Maugans said, he continued to treat Shymire and noticed petechial
hemorrhages in her eyes and ligature marks around her neck, injuries usually associated
with asphyxiation or strangulation. He also observed abrasions on Shymire's head.

On cross-examination, Maugans testified that Adams stood quietly by and
watched his and his partner's efforts to treat Shymire. He said that Adams appeared to be
in shock or stunned. His dispatch computer indicated Adams had been frantic when she
called 911.

The State's second witness, Sherri Rene Brown, was Maugans' partner. She
testified that her efforts to gather information from Adams at the scene were futile. She
got no responses to any of her questions.

The State's third witness, Josh Mullen of the Wichita Fire Department, testified
that he also responded to Adams' 911 call. He observed Shymire on the couch, observed
her severe burns, removed mucus from her nose and mouth, and determined that she had
a low level of consciousness.

The State's next witness, Wichita police officer Ian Wolfe, became involved in the
case when he made contact with Adams shortly after she arrived at the hospital. Adams
confirmed that she had been home alone with her two children and was able to respond to
his questions logically and coherently. According to Wolfe, Adams said that she had not
wanted to leave Shymire alone in the bathtub, that Shymire had had a seizure, and that
Adams then moved Shymire to the couch and noticed Shymire's skin was falling off her
lower legs. Wolfe testified that Adams told him Shymire had been seated in the bathtub.
Wolfe also testified that Adams expressed a lack of understanding of a doctor's comments
5



about burns on Shymire's legs, explaining that the injuries on her legs were the result of
sensitive skin or some kind of skin disorder.

Wichita police officer Naomi Arnold was the State's next witness. She was
responsible for keeping Adams' apartment clear for investigation, and she walked through
the apartment and went into the bathroom. When she opened the bathroom door, she said,
the room felt like a sauna; she put her finger in the tub and felt hot water in it.

Kent Bauman, another Wichita police officer with the Exploited and Missing
Children Unit, testified next. He too went to Adams' apartment on May 16, 2007. He
stated that he did not notice any bath towels, lotions, or baby soaps set out in the
bathroom when he entered it, nor did he notice any standing water on the bathroom floor.
He said that he had arrived about 8 p.m., and there was no water in the bathtub at that
time. He ran each of the bathtub faucets for 30 seconds to 60 seconds and measured the
temperature of the water at 138 degrees.

The State's next witness, Frank Johnson, was the on-site apartment manager of the
complex in which Adams lived. Johnson testified that he observed Robert Turner,
Adams' common-law husband and the children's father, leave the complex on his bicycle
at approximately 12:30 p.m. on May 16, 2007. The parties stipulated that Turner clocked
into his job at 12:49 p.m. and clocked out at 9:42 p.m. on that day. At about 6 p.m. on
May 16, 2007, Johnson testified, he received numerous calls from Adams, instructing
him not to allow police to enter her apartment.

Jonathan Dort, Chief of Surgery at St. Francis Hospital, testified next. Dort was
part of the emergency room trauma team that treated Shymire on her arrival at the
hospital. Dort observed that Shymire was poorly responsive, somnolent, and not alert.
She was not scared or crying like a normal child with her burn injuries would be. He
6



observed no signs indicating that she had suffered a seizure. A CAT scan showed small
hemorrhages to Shymire's brain. It also showed fluids and stomach contents in her chest
and in her lungs, which was evidence of aspiration. Dort observed bruises on Shymire's
abdomen and testified that they were not consistent with an effort to resuscitate her. Dort
said that, while he treated Shymire in the ER, he suspected that the injuries were not
accidental, because the combination of burns, head trauma, and marks on the neck could
not be attributed to a single cause or mechanism. Defense counsel did not cross-examine
Dort.

Pediatrician Katherine Melhorn, M.D., testified next for the State. She said that
she specialized in child abuse evaluations. She visited Shymire in the hospital the day
after she arrived, read Shymire's medical history, and concluded that Shymire did not
have a seizure disorder. Melhorn also concluded that Shymire's injuries could not have
been caused by a short seizure and that there was nothing to indicate any preexisting
health issue that could have caused her injuries. Melhorn described the injuries to
Shymire's lower legs and feet as inflicted immersion burns. Shymire also had bruises on
her legs and torso resulting from inflicted blunt force trauma and three bruises behind her
right ear resulting from blunt force trauma. She had a bruise and abrasion on her
forehead, which Melhorn was less certain about; but she testified they too had probably
been caused by blunt force trauma. Shymire's internal brain damage resulted from a
closed head injury caused by blunt force trauma. In Melhorn's opinion, the burns on
Shymire's legs may have contributed to Shymire's death, but the ultimate cause of death
was marked swelling to brain tissue. On cross-examination, Melhorn conceded that her
conclusions did not rule out the occurrence of a seizure on May 16, 2007. On redirect,
she said she could not conceive of a sensible, single mechanism for all of Shymire's
injuries, but Shymire could have had a seizure as a result of the brain injury.

7



Doctor William Waswick, a surgeon and specialist in trauma and burns, testified
next. He treated Shymire on the day she arrived at the hospital. Waswick stated that
Shymire had second- and third-degree burns on her legs and feet. A small area would
have required skin grafting to heal, but most of the burns would have healed without
grafting. Waswick also testified that burns such as Shymire's legs would be "exquisitely
painful," and that the burns alone would not have caused Shymire's observed low-
consciousness state. He said that the burns were consistent with forced immersion
injuries, not accidental burns, because there were no splash burns to other parts of
Shymire's body. On cross-examination, Waswick testified that 3 seconds to 5 seconds
underwater would have been enough time to have caused Shymire's burns. In addition,
minor burns on Shymire's chest and cheek were consistent with the toddler climbing or
being pulled out of the tub.

Jaime Oeberst, chief medical examiner for the Wichita Police Department and
county coroner, performed an autopsy on Shymire's body the day after her heart stopped
and was the next witness during the State's case in chief. Oeberst had ultimately
concluded that Shymire's cause of death was complications from blunt force trauma to
the head and abdomen and from the burns. He had ruled that the manner of death was
homicide. On cross-examination, Oeberst stated that the petechial hemorrhages in
Shymire's eyes and chest may have resulted from periods of distressed breathing. On
redirect examination, Oeberst testified that blunt force trauma to the head would have
resulted in a visible change of the state of the child's consciousness.

Clay Germany, a Wichita police detective with the Exploited and Missing
Children Unit, was the State's next witness. He testified that he interviewed Adams at the
hospital on May 16, 2007. He also interviewed her at the EMCU offices. The State
played two DVDs of the police interviews.

8



William Alexander Riddle, a detective with the Wichita Police Department's
Exploited and Missing Children Unit, was the State's last witness. He testified that he
learned from doctors at St. Francis that Shymire was suffering from bleeding in the brain.
During interviews with Adams, Riddle said he and other detectives asked Adams to
explain how Shymire's head injury occurred. He said that Adams denied ever hitting
Shymire and said that a wall mirror had fallen on Shymire's head earlier in the week and
may have caused the head injury.

Defense counsel did not make an opening statement.

Adams testified that she was 19 years old and had moved to Wichita from North
Carolina with Turner and their two children in March 2007. She described her life in
Wichita as a stay-at-home mother, struggling with finances as her husband sought work.
Turner worked evenings, and she had full responsibility for caring for the children at all
times of the day. Adams said, "I was tired all the time. Stressed. I was just exhausted."
She also acknowledged that she was being physically, emotionally, and mentally abused
by her husband.

On May 16, 2007, Adams testified, her husband went to work around noon and
she was alone with her children for the afternoon and evening. Righteous, the baby, was
abnormally fussy. Adams was operating on 3 hours of sleep from the previous night and
some short naps. She ingested Ecstasy, marijuana, Lortabs, and cocaine to "get my mind
off of what was going on around me and what I was going through." She followed her
normal routine with the children, feeding them dinner, then giving them each a bath.

Adams said that she gave Righteous a bath first, then moved him to the crib in the
living room. She started a bath for Shymire, failing to bring anything but a towel into the
bathroom with her because she was distracted by Righteous' crying. She tested the water
9



and thought it was fine, put Shymire into the tub, and sat in the bathroom with her until
she heard Righteous screaming in the living room. She went to the living room to comfort
Righteous and heard a thud from the bathroom. Shymire then walked out into the living
room. Adams testified that she put Righteous back down into the crib, picked up
Shymire, carried her to the bathroom, and put her back into the bathtub in a standing
position. The water was still running, and Shymire started screaming. Adams said she
observed Shymire "began to wander to the ceiling, and I asked her, Shymire, what's up
there . . . . And then she began to jerk and then she just flew back." Adams testified that
she thought she had caught Shymire but it was possible she nevertheless hit her head in
the bathtub. She acknowledged she heard a thud and immediately picked Shymire up.

When Adams picked Shymire up, she testified, she noticed the water was much
hotter than it was when she first put Shymire in the tub. She also testified that she noticed
Shymire's feet were scalded and that she was not responding or making any sounds.
Adams said she took Shymire to the living room and put her on the couch, and she
observed mucus coming from Shymire's mouth and nose. Adams said she tried to
perform CPR, but she acknowledged that she had no training in how to do so. She
described her efforts at CPR as thrusts to Shymire's abdomen. Adams then called 911.

Adams said she was in a state of shock when emergency personnel arrived. She
testified that she did not tell the detectives about the burns on Shymire's legs because she
had not seen them at the time. She also said that she was worried throughout the police
interviews that she might be deemed unfit and have her children taken from her. She said
this was the reason she failed to tell the 911 dispatcher and detectives that she left
Shymire alone in the tub and failed to mention her drug use. Adams believed Shymire
was capable of manipulating the tub water faucets, but she had never observed her turn
them before.

10



On cross-examination, Adams said that the reason investigators found no drugs at
her apartment was that she had used them all and then cleaned. She also testified that she
did not recall shutting the bathroom door or pulling the stopper on the bathtub. She did
recall telling detectives that she was emotionally well and would not have been caring for
her kids alone if she could not handle them. The prosecutor also asked questions
emphasizing discrepancies between the evidence in the police interview DVDs and
Adams' testimony on direct, including her earlier statement that she had lotions and
powders with her in the bathroom. The prosecutor also questioned Adams about
Righteous' behavior while the EMS personnel were in the apartment. She had testified on
direct that Righteous was very fussy and was crying constantly. On cross-examination,
Defendant testified that he was quiet when the paramedics were there, although he had
been very noisy all day. The prosecutor also read from the transcript of the police
interview in which Adams had said that Shymire splashed water when she began to fall
backwards and that there may have been water on the bathroom floor. Adams
acknowledged that Shymire had no burns except on her lower legs and feet. She testified
that she did not strike Shymire in the head or thigh and that she had no intent to harm
Shymire while performing abdomen thrusts.

When instructing the jury, the district judge used the weight and credibility
instruction from PIK Crim. 3d 52.09 but added a second paragraph about expert
testimony from PIK Civ. 4th 102.50. The expanded instruction read:

"It is for you to determine the weight and credit to be given the testimony of each
witness. You have a right to use common knowledge and experience in regard to the
matter about which a witness has testified.

"Certain testimony has been given in this case by experts; that is, by persons who
are specially qualified by experience or training and possess knowledge on matters not
common to mankind in general. The law permits such persons to give their opinions
11



regarding such matters. The testimony of experts is to be considered like any other
testimony and is to be tried by the same tests, and should receive the same weight and
credit as the jury deems entitled to, when viewed in connection with all the other facts
and circumstances, and its weight and value are questions for the jury."

The court said that the modified instruction told jurors that they were "to consider
expert witnesses by the same standard" used for any witness. Defense counsel objected
because the instruction was not "standard PIK." The judge overruled the objection,
finding the modified instruction "helpful for the jury."

Jurors asked two questions during their deliberations. The first jury question was:
"Did the Specialist ? [] say the blow to the back of the head would/could have caused
instant inc[a]pacit[at]ion?" A typewritten document in the record on appeal, signed by the
district judge and both counsel reflects the following response by the court:

"The Court reminds the jury that they are the trier of the facts. It is their
perception and recollection of testimony that should control their deliberations, not
counsel[']s. The Court will advise the jury that, should they desire it, it is possible to have
that portion of the Doctor's testimony read back to them.

"Counsel agree that the specialist, Dr. Oeberst, testified in essence, that the head
trauma would have caused the brain to swell within a very short time but did not provide
specific time estimates. She further testified that, once the brain swelling started, it would
have caused an immediate and noticeable change of consciousness."

When the jury had completed its deliberations, but before it was brought into court
for the reading of its verdict, the prosecutor stated the following on the record:

"[T]here was a question the jury asked. Counsel considered the questions with the Court.
[Defense counsel] was given an opportunity along with his client to speak privately about
12



that. They did before all the parties came back in chambers and agreed to the question
response to be given to both questions. The response was reduced to a typewritten form
and all parties signed it, and it was answered in that fashion to the jury.

"The question and the answers, I think it may have been a part of the record
already, but I just wanted in the record that [defendant] Ms. Adams was allowed plenty of
time to confer with counsel prior to the answer being given."

The district judge then asked defense counsel whether he agreed with the
prosecutor's recitation, and defense counsel said "I do." Nothing in the record on appeal
reflects whether Adams was present during any discussion by the court and counsel of the
jury questions and responses.

After the guilty verdict but before sentencing, Adams wrote a letter to the district
judge. It read in pertinent part:

"I am writing you because I would like to know what I need to do to get a new
attorney. I felt that I was not represented properly. There are a lot of facts to my case that
were not mentioned w[h]ich I believe would help my case. I refuse to accept the fact that
I have been found guilty for something that I did not do. I am aware of the severity of my
case. That is why I'm asking you to appoint another attorney to my case."

The judge construed the letter as a motion for appointment of new counsel and a
motion for new trial on the basis of ineffective assistance of trial counsel. He appointed
the requested new counsel and conducted an evidentiary hearing on the motion for new
trial.

At that hearing, Adams testified that many facts were not mentioned at her trial.
She also said that she believed she had inadequate opportunities to discuss her case with
her trial counsel. She said she had wanted him to put on evidence of Battered Woman's
13



Syndrome and had wanted him to subpoena her husband to testify about the abuse and
hardship she was suffering at the time of Shymire's injuries. Adams also said that she had
wanted her trial counsel to present medical records of her children showing no history of
abuse, but she conceded that she did not give her counsel any contact information for
medical providers. Adams also testified that she had wanted her trial counsel to call
character witnesses and put on evidence of her successes in high school. She further
testified that she was not able to understand what was going on at the time of trial and
had felt forced to testify in her own defense. She stated that her counsel did not threaten
her but that "[h]e just said that I don't have a choice."

Adams also presented documents establishing that Shymire was a child in need of
care (CINC) from the time of her injuries until the termination of her life support. She
testified that she had wanted her counsel to present the CINC documents at trial to
demonstrate that she was not permitted to make the life support termination decision
ordinarily allocated to a parent. Adams asserted that this should have absolved her of
first-degree murder.

Adams also testified on direct that she could have given her counsel photographs
that illustrated her loving relationships with her two children and that he should have
filed a motion to suppress certain of the statements she had made during police
interviews. She also said that she had not wanted to admit using drugs and that she had
made this clear to her counsel. She said she did not know whether her trial counsel had
filed any proposed jury instructions.

On cross-examination, Adams conceded that she was not alleging that her husband
killed Shymire. She also admitted that she had told the jury she had a rocky relationship
with Turner. Adams further testified that she had received mental health treatment when
she was about 12 years old in North Carolina, but could not recall the diagnosis or form
14



of treatment. Adams also testified that she suffered from a mental disability that made it
difficult to remember things; she did not know the name of the malady.

Adams' trial counsel, Kenneth Newton, also testified at the hearing on the motion
for new trial. He said he had worked for the Sedgwick County Public Defender's Office
for about 12 years and had defended five to eight murder cases. He further testified that
he had had a pediatrician with expertise in neurology review Shymire's medical records.
That doctor concluded that there was a 2-hour time lapse between the occurrence of
Shymire's head injuries and the time Adams called 911. This evidence eliminated Turner
as a suspect. The pediatrician also told Newton that he would not testify to any
reasonable degree of medical certainty that Shymire's injuries could have resulted from
an accidental slip and fall. Under these circumstances, Newton said, he could not put the
doctor on the stand before the jury.

Newton further testified that he did not call Turner to testify because he was
difficult to reach, missed appointments to come in to discuss the case, and posed too great
a risk that he would invoke his privilege against self-incrimination on the stand because
of Adams' abuse allegations. Newton also considered calling Adams' mother to testify,
but he and Adams decided as trial neared that it would be better not to do so. Newton did
not recall that Adams ever mentioned suffering from a mental disability, and he never
had the impression that Adams was not competent to stand trial.

Newton also testified that he did not attempt to put photographs of Adams with her
children into evidence because controlling case law did not support their admissibility.
He did not offer medical records of Shymire's previous medical treatment because they
contained damaging evidence—specifically, documentation that Adams had engaged in
inappropriate behavior during an infant Shymire's visit to an emergency room and that
Shymire had been malnourished. Newton made a strategy judgment not to sponsor such
15



evidence because it would hurt Adams' case and portray her as a "neglectful mom," a
characterization she had made clear she wanted to avoid.

Newton further testified that he believed he had spent adequate time discussing the
case with Adams. He said he could not be sure whether he submitted proposed jury
instructions to the district court. Newton also said that he did not force Adams to testify.
She had insisted that she wanted her story to be heard; and he told her that there was no
way for that to happen if she did not testify.

The district judge denied the motion for new trial based on ineffective assistance
of trial counsel, relying on Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), and Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985).
Adams was sentenced to life imprisonment with parole eligibility in 20 years.

HANDLING OF JURY QUESTION

Defendant argues that the district judge erred both procedurally and substantively
in responding to the jury's question during deliberations. Procedurally, the judge should
not have provided a written response that summarized a portion of a witness's testimony;
rather, he should simply have offered a readback of the testimony. Substantively, Adams
argues, the judge's summary was inaccurate.

The standard of review for a trial court's response to a jury question during
deliberations is abuse of discretion. State v. Hoge, 276 Kan. 801, 815-16, 80 P.3d 52
(2003) (citing State v. Moore, 274 Kan. 639, 543, 55 P.3d 903 [2002]). The State points
out, however, that Adams invited this error by acquiescing in the trial court's handling of
the question. If so, the question is not reviewable. See State v. Prouse, 244 Kan. 292,
298-99, 767 P.2d 1308 (1989).
16




The invited error doctrine has been applied in reviewing a district judge's
compliance with the statutory procedures governing jury questions. State v. Bruce, 255
Kan. 388, 397, 874 P.2d 1165 (1994); State v. Cramer, 17 Kan. App. 2d 623, 632-33, 841
P.2d 1111 (1992). K.S.A. 22-3420(3) provides:

"After the jury has retired for deliberation, if they desire to be informed as to any
part of the law or evidence arising in the case, they may request the officer to conduct
them to the court, where the information on the point of law shall be given, or the
evidence shall be read or exhibited to them in the presence of the defendant, unless he
voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."

The court has construed this provision to require the defendant's presence for any
discussions about a jury's questions and "[w]here the record does not affirmatively reflect
the presence of the defendant, this court will presume that the defendant's constitutional
right to be present was violated and the K.S.A. 22-3420(3) was not followed." State v.
Betts, 272 Kan. 369, 391, 33 P.3d 575 (2003) (citing State v. Bell, 266 Kan. 896, 920, 975
P.2d 239 [1999]). This Betts court has further noted that invited error doctrine would not
apply to an allegation that defendant's right to be present during jury question discussions
was violated, because this is a right personal to the defendant. Betts, 272 Kan. at 392; see
State v. Bolton, 274 Kan. 1, 5, 49 P.3d 468 (2002). But harmless error analysis does
apply, 272 Kan. at 391-92.

In this case, Adams does not argue that her right to be present was violated. This
is wise; because, although the record is less than crystal clear, it is not silent. The
prosecutor's comments on the record show that she participated at least in a discussion of
the jury's question and the response with her counsel. This makes her situation analogous
to that of the defendants in State v. Bruce and State v. Cramer.

17



In Bruce, this court applied the invited error doctrine to the defendant's objection
on appeal to the court's response to a jury question. 255 Kan. at 397. The record indicated
that the defense counsel agreed to the response that the court, with input from the
prosecution and defense, formulated in open court. Because the defendant participated
and, in fact, joined in the request for specific language, defendant could not argue for
error before this court. Bruce, 255 Kan. at 397. Similarly, in State v. Cramer the Kansas
Court of Appeals applied the invited error doctrine to a defendant's argument that the
district court improperly responded to a jury's question. 17 Kan. App. 2d at 631-32.
Defense counsel stated on the record that he had no problem with setting out the standard
suggested by the prosecutor. It was just that standard that both parties agreed to that the
court used to answer the question. Because of the defendant's on-the-record agreement to
the answer, he could not argue the error on appeal. 17 Kan. App. 2d at 632-33 (citing
State v. Salton, 238 Kan. 835, 837, 715 P.2d 412 [1986]; State v. Falke, 237 Kan. 668,
682, 703 P.2d 1362 [1985]; State v. Reynolds, 230 Kan. 532, 535-36, 639 P.2d 461
[1982]).

It would be better practice, in future cases, for the district judge to take special
care to deal with jury questions only in open court and to ensure a recording of the
presence of the defendants as well as the prosecutor and defense counsel. In addition, a
judge who summarizes testimony rather than merely offer a readback, plays with fire. See
Betts, 272 Kan. at 393 (error to summarize but harmless). However, on the record in this
case, we are satisfied that Adams invited any error that may have occurred in the district
judge's handling of the jury's question. We therefore decline to review her procedural and
substantive complaints.

18



WITNESS CREDIBILITY INSTRUCTION

Adams next contests the propriety of the district judge's instruction on the
credibility of witnesses, which went beyond the wording of PIK Crim. 3d 52.09. The
district judge declined to heed the Advisory Committee's recommendation in the
comment to PIK Crim. 3d 52.14, which says no separate instruction about expert
witnesses should be given. As set forth above, the judge added language regarding
experts borrowed from PIK Civ. 4th 102.50. Adams' counsel objected to this instruction
at trial on the ground that it deviated from the standard pattern instruction for Kansas.
Although this is true, such deviation is not automatically fatal. Use of PIK instructions is
encouraged but not mandatory. If the particular facts of a case require modification of a
pattern instruction, the court should not hesitate to change it. See State v. Gallegos, 286
Kan. 869, 190 P.3d 226 (2008) (citing State v. Mitchell, 269 Kan. 349, Syl. ¶ 4, 7 P.3d
1135 [2000]).

This court has acknowledged, however, a trend away from instructions that focus
on the credibility of certain witnesses. State v. Willis, 240 Kan. 580, 587, 731 P.2d 287
(1987). The Advisory Committee Notes on Use also demonstrate this trend. See PIK
Crim. 2d 51.10 (defendant as witness); PIK Crim. 2d 52.11 (number of witnesses); PIK
Crim. 52.14 (expert witness); PIK Crim. 2d 52.15 (impeachment). This goes to the
essence of Adams' argument on appeal; she asserts that the district judge's instruction put
undue emphasis on the four experts' trial testimony.

We acknowledge that the notes to the PIK Criminal instruction and the PIK Civil
instruction used here counsel against inclusion of a supplemental expert witness
instruction. PIK Crim. 3d 52.14 Comment ("The Committee believes that an expert
should be considered as any other witness as set forth in PIK 3d 52.09, [Crim.]
Credibility of Witnesses."); PIK Civ. 3d 102.50 Notes on Use ("While this instruction
19



may be requested, the Committee discourages its use."). But it appears in this case that, if
anything, the hybrid instruction was intended to de-emphasize the weight and credit of
the expert witnesses' testimony. Its plain language discouraged jurors from being overly
impressed with the expertise and official positions of those testifying during the State's
case-in-chief. In a case where, as here, the nonexpert defendant is her only witness, as a
matter of common sense, the hybrid does no harm and may actually help.

Moreover, our legal standard for assessing jury instructions requires that we view
them as a whole and determine whether they accurately state the law so the jury could not
reasonably have been misled by them. See Gallegos, 286 Kan. at 877 (citing State v.
Wilkerson, 278 Kan. 147, 158, 91 P.3d 1181 [2004]). On this standard, Adams' claim
fails.

The instruction accurately stated the law as it stands in Kansas. The jury should
weigh expert witness testimony in the same manner it weighs all testimony. See PIK Civ.
3d 102.50 Notes on Use ("The essence of the instruction is nothing more than a statement
justifying the decision of the trial judge to allow a supposed expert to testify more
broadly than an ordinary witness is allowed to testify."). The State laid a proper
foundation for all of its expert medical witnesses, making the jury well aware of their
qualifications to give opinions on medical issues and cause of death.

In addition, Adams' jury would not reasonably have been misled by the
instruction. Had the first paragraph of the hybrid stood alone, the jury still would have
been instructed as to how to assess credibility of all witnesses, regardless of expertise.
The effect of the second paragraph on experts was merely cautionary. Again, it guarded
against a likely misimpression about the influence of experts. The district judge was
justified in adding the second paragraph because it was helpful to the jury.

20



In sum, although the district judge deviated from the standard jury instructions on
witness credibility, doing so was not error in this case. Any practical effect would have
worked to Adams' benefit, and the instructions as given were fair and accurate statements
of the law that would not reasonably have misled the jury.

MOTION FOR NEW TRIAL BASED ON INEFFECTIVE ASSISTANCE

Adams' last argument on this appeal is that the district judge erred in denying her
motion for new trial based on ineffective assistance of trial counsel. A claim alleging
ineffective assistance of counsel presents mixed questions of law and fact requiring de
novo review. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). When a district
judge has held a full evidentiary hearing on the issue, this court determines whether the
district judge's factual findings are supported by substantial competent evidence and
whether those findings are sufficient to support the trial court's conclusions of law. See
Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007).

To establish reversible error, Adams must meet the two-pronged test of Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984); see also
Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the
Strickland holding). The test requires a defendant to show: (1) counsel committed serious
errors that undermined the Sixth Amendment's guarantee to effective assistance, and (2)
counsel's deficient performance prejudiced the defendant. 466 U.S. at 689-96; Harris,
288 Kan. at 416.

The first prong of the Strickland test requires a finding that trial counsel's
representation fell below an objective standard of reasonableness. Chamberlain, 236 Kan.
at 656-57. The sphere of permissible, reasonable professional conduct is broad, and
courts are highly deferential in their assessment of attorney performance. There is a
21



strong presumption that counsel's representation fell within the wide range of
professional conduct. Harris, 288 Kan. at 416. "Strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable,
and strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation." State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004) (citing
Strickland, 466 U.S. at 690-91. The burden is on a defendant to demonstrate that the
alleged deficiencies were not the result of strategy. Gleason, 277 Kan. at 644 (citing
Ferguson v. State, 276 Kan. 428, 446, 78 P.3d 40 [2003]).

The second prong of the Strickland test requires a defendant to show there is "a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Chamberlain, 236 Kan. at 656-57.
Adams cannot meet either prong of the Strickland test.

At the evidentiary hearing on Adams' motion for new trial, both she and her trial
counsel testified about the alleged defects in his representation. Their testimony
demonstrated that Newton's performance was well within the bounds of competent,
professional representation. Indeed, his concession to several of the additional demands
Adams placed on him would have been detrimental to her interests. In other words, he
exercised exactly the judgment counsel is meant to exercise, including judgment designed
to save the client from himself of herself. Under the circumstances presented here, the
district judge's findings on Strickland's first-prong were amply supported by substantial
competent evidence and those findings were sufficient to support the judge's conclusions
of law.

22



The situation is likewise on the second prong of Strickland. Shymire's injuries
were catastrophic. The State's case against her mother was powerful. Even if we
perceived weakness in Newton's performance, which we do not, there was no prejudice
flowing from it. There was virtually no chance the jury could have concluded other than
it did.

In view of all of the foregoing discussion, Adams' claims of error on this appeal
are rejected, and her conviction of first-degree felony murder is hereby affirmed.

DAVIS, C.J., not participating.

PHILIP C. VIEUX, District Judge, assigned.
1

1
REPORTER'S NOTE: District Judge Vieux was appointed to hear case No. 101,236
vice Chief Justice Davis pursuant to the authority vested in the Supreme Court by art. 3, §
6(f) of the Kansas Constitution.