State v. Brooks

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,774

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER BROOKS,
Appellant.


SYLLABUS BY THE COURT

1.
A criminal defendant has a constitutional right under the Sixth Amendment to the
United States Constitution to have the effective assistance of counsel to ensure that he or
she receives a fair trial. Appellate courts employ a two-prong test to determine whether a
criminal defendant's Sixth Amendment right to effective assistance of counsel has been
violated: (1) The defendant must demonstrate that counsel's performance was deficient;
and (2) the defendant must show that counsel's deficient performance prejudiced the
defense so as to deprive the defendant of a fair trial.

2.
The jury is charged with the responsibility of weighing the evidence and
determining witness credibility. Appellate courts do not reweigh the evidence or decide
which witnesses are credible.

3.
By allowing criminal defendants to cross-examine witnesses and by allowing the
trier of fact to evaluate the credibility of those witnesses, the right of confrontation
2



promotes both the reliability of criminal trials and the perception of fairness in our
criminal justice system.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 15, 2011.
Appeal from Crawford District Court; JOHN C. GARIGLIETTI, judge. Opinion filed July 26, 2013.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed and remanded.

Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger,
of the same office, was on the brief for appellant.

Michael Gayoso, Jr., county attorney, argued the cause, and Steve Six, attorney general, was with
him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Christopher Brooks was convicted of rape and aggravated criminal
sodomy as the result of a jury trial in which the victim testified that Brooks had a scar on
his penis. Brooks sought a new trial, based on the ineffective assistance of his trial
counsel in failing to seek a continuance to obtain evidence to rebut the existence of such a
scar. Brooks requested our review of that portion of the Court of Appeals opinion finding
that the deficient performance of Brook's trial counsel was not reversibly prejudicial
under the second prong of the ineffective assistance of counsel test from Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S.
1267 (1984). Brooks contends that, in reaching its conclusion that the error was not
prejudicial, the Court of Appeals impermissibly weighed the probative value of the scar
evidence and assessed the victim's credibility. We agree with that contention and reverse
both the Court of Appeals and district court. The matter is remanded to the district court
for a new trial.
3




FACTS AND PROCEDURAL OVERVIEW

In April 2008, then 12-year-old S.C. informed her mother that Brooks, her
estranged stepfather, had molested her. S.C.'s mother reported this information to the
Pittsburg Police Department, and S.C. was subsequently interviewed by a detective. S.C.
told the detective that the molestation began with Brooks fondling her vagina when she
was 3 years old and progressed to vaginal and oral sex when she was 9 years old. S.C.
also informed the detective that she had not been sexually active with anyone other than
Brooks.

At trial, S.C. testified that Brooks began having sexual intercourse with her in
2004, when she was 9 years old. She said that the sexual abuse happened too many times
to count; that sometimes Brooks would sexually assault her two or three times a night;
and that during the summer of 2007, he sexually assaulted her on almost a daily basis.
S.C. recounted one occasion in 2004 when Brooks forced her and a friend, C.G., to
perform oral sex on each other. But she also admitted that she had lied to the police about
her prior sexual history, revealing that she had "consensual" sexual intercourse with one
other individual on three different occasions from October 2007 to April 2008.

In S.C.'s sexual assault examination, the nurse noted significant injury to S.C.'s
hymen. The nurse opined that the injuries were consistent with nonconsensual sexual
intercourse and it was unusual to see that much injury to the hymen of a 12-year-old girl.
S.C. did not tell the nurse about her consensual sexual intercourse with another. The
nurse acknowledged that her findings may have been affected if S.C. had disclosed her
other sexual activity, but the nurse still maintained that S.C.'s injuries were not consistent
with consensual sexual intercourse.

4



During cross-examination, S.C. was asked if she could describe anything unusual
about Brooks' genitalia. She answered that Brooks was uncircumcised and had a scar on
the side of his penis. Brooks immediately advised his counsel that he had no such scar
and said he wanted to testify in order to impeach S.C.'s testimony. Defense counsel
advised Brooks against taking the stand and recommended finding another way to
establish that Brooks did not have a scar on his penis. However, defense counsel failed to
follow through on obtaining any such impeachment testimony.

The jury found Brooks guilty of two counts but acquitted him of five counts. He
was convicted on Counts 5 and 6, charging him with the rape and aggravated criminal
sodomy of S.C. during 2004. The counts upon which Brooks was acquitted encompassed
the rape and aggravated criminal sodomy of C.G. during 2004; the aggravated criminal
sodomy of both S.C. and C.G. during 2004; and the rape and aggravated criminal sodomy
of S.C. during 2007.

Prior to sentencing, Brooks filed a motion for new trial on several grounds,
including an allegation of ineffective assistance of counsel of trial counsel for failing to
impeach S.C.'s testimony describing the scar on Brooks' penis. Brooks submitted medical
records from a prison physician who had examined Brooks' penis and detected no visible
scars. The district court denied Brooks' motion and sentenced him to 186 months'
imprisonment for the rape conviction and 123 months for the aggravated criminal
sodomy conviction.

Brooks timely appealed his convictions, raising several issues of error, including
the ineffective assistance of counsel claim that was raised in his motion for a new trial.
The Court of Appeals remanded the matter to the district court for more complete
findings in order to adequately address the ineffective assistance of counsel claim.
Subsequently, the district court conducted a supplemental evidentiary hearing wherein
5



Brooks' trial counsel admitted that he should have sought a trial continuance in order to
have a medical examination performed to establish whether Brooks had a scar on his
penis. After the hearing, the district court filed additional findings and conclusions that
determined Brooks was fully informed of his right to testify and that trial counsel's
performance was not constitutionally deficient. The district court made no specific
findings with regard to whether trial counsel's performance was deficient for failing to
request a trial continuance in order to obtain evidence independent of Brooks' testimony
to rebut S.C.'s testimony regarding the scar.

In addressing Brooks' ineffective assistance of counsel claim, the Court of Appeals
held that Brooks' trial counsel was deficient for failing to request a trial continuance in
order to consider an appropriate strategy to impeach S.C.'s credibility. State v. Brooks,
No. 103,774, 2011 WL 2793303, at *4 (Kan. App. 2011) (unpublished opinion).
However, the Court of Appeals concluded that there was no reasonable probability that
the failure to impeach S.C.'s testimony regarding the scar would have changed the
outcome of Brooks' trial. 2011 WL 2793303, at *5. The court first questioned the weight
that should have been given to the victim's testimony that she observed a scar on Brooks'
penis at least 4 years and perhaps 10 years prior to trial. Then the panel assessed that
"S.C.'s credibility would likely have survived such an approach" of impeaching the
existence of a penile scar. 2011 WL 2793303, at *5. Finding no error from the other
issues appealed, the Court of Appeals affirmed Brooks' convictions. 2011 WL 2793303,
at *10. Brooks sought review on the issue of whether the Court of Appeals erred in
denying him a new trial for the ineffective assistance of his trial counsel simply because
the panel assessed the victim to be credible. We granted the petition.

6



PREJUDICE FROM INEFFECTIVE ASSISTANCE OF COUNSEL

Standard of Review

A claim of ineffective assistance of counsel involves mixed questions of law and
fact. The appellate courts examine the record for supporting evidence but apply the
proven facts to determine de novo whether they demonstrate ineffective assistance of
counsel. See State v. Sanchez-Cazares, 276 Kan. 451, 457, 78 P.3d 55 (2003).

Analysis

The Sixth Amendment to the United States Constitution guarantees in "all criminal
prosecutions" that "the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence." This right includes the effective assistance of counsel.
Strickland, 466 U.S. at 687; Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468
(1985). The purpose of the Sixth Amendment's right to effective assistance of counsel is
"simply to ensure that criminal defendants receive a fair trial." Strickland, 466 U.S. at
689. The Sixth Amendment right to effective assistance of counsel is made applicable to
state proceedings by the Fourteenth Amendment to the United States Constitution. State
v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012).

Strickland established a two-prong test for determining if a criminal defendant's
Sixth Amendment right to effective assistance of counsel has been violated. 466 U.S. at
687-96. Kansas courts adopted this test in Chamberlain, 236 Kan. at 656-57. Under the
first prong, a defendant must demonstrate that counsel's performance was deficient. 236
Kan. at 656. In determining whether counsel's performance was deficient, the defendant
must show that

7



"[c]ounsel's representation fell below an objective standard of reasonableness. Judicial
scrutiny of counsel's performance must be highly deferential, and a fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time. A court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." 236 Kan. at 656-57.

In analyzing whether Brook's trial counsel was deficient under the first prong of
Strickland, the Court of Appeals considered this court's decision in State v. Greene, 272
Kan. 772, 37 P.3d 633 (2001). Greene held that trial counsel's failure to request a trial
continuance in order to address newly discovered information constituted deficient
performance. 272 Kan. at 783. Here, the panel determined that S.C.'s testimony regarding
the scar on Brooks' penis constituted newly discovered information and that such new
evidence "may have been a significant avenue to impeach her testimony if Brooks could
prove that her observations were without basis in fact." Brooks, 2011 WL 2793303, at *4.
Consequently, the panel found defense counsel's performance to be deficient for failing to
take any action to explore or utilize the newly available impeachment strategy. 2011 WL
2793303, at *4. The State has not requested review of the Court of Appeals holding that
Brooks met the first prong of the Strickland test, and we will proceed on the basis that
trial counsel's performance was constitutionally deficient.

The second prong of Strickland is a prejudice analysis to determine whether
reversal is required; the court must decide whether counsel's deficient performance
prejudiced the defense so as to deprive the defendant of a fair trial. Chamberlain, 236
Kan. at 656.

"(b) With regard to the required showing of prejudice, the proper standard
requires the defendant to show that there is a reasonable probability that, but for counsel's
8



unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
A court hearing an ineffectiveness claim must consider the totality of the evidence before
the judge or jury." Chamberlain, 236 Kan. at 657.

Strickland further explained: "[T]he defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable." 466 U.S. at 687.

Despite its acknowledgement that "the credibility of S.C. was critical to the State's
prosecution" and that "an effective impeachment of that credibility would have been
significant," the Court of Appeals opined that defense counsel's failure to impeach S.C.'s
statement about Brooks' penile scar did not deny Brooks a fair trial. Brooks, 2011 WL
2793303, at *4-5. To reach that conclusion, the panel first speculated about the weight
the jury might have given to such impeachment evidence:

"[E]ven if counsel had been successful in obtaining a continuance and proving that
Brooks no longer had such a scar, what impact would that have had on the jury? Was it
really a 'scar' when first purportedly seen by S.C.? Would that necessarily have
impeached S.C.'s testimony about what she saw and experienced at least 4 years and
perhaps 10 years prior to trial? Is such a scar permanent so that it would still be there?
For these reasons, we question the effectiveness of any such attempt at impeachment."
2011 WL 2793303, at *4.

Next, the panel engaged in an assessment of S.C.'s credibility, concluding that her
believability with the jury would have survived the successful rebuttal of her allegedly
inaccurate description of Brooks' penis. 2011 WL 2793303, at *5. In doing so, the panel
glossed over the credibility issues arising from S.C.'s prior untruthful statements about
her sexual activities with others and declared that "her overall credibility was anchored in
her expressed anxiety in 'outing' her stepdad." 2011 WL 2793303, at *5. Interestingly, the
9



panel's credibility calculus did not include any reference to the jury's acquittal of Brooks
on five of the seven counts upon which S.C. testified nor any rumination upon what
inference might be drawn therefrom about the jury's view of S.C.'s credibility.

Given the panel's stated reasons for finding no prejudice, we discern that it ran
afoul of the oft-stated rule that an appellate court will not determine the credibility of
witnesses or weigh conflicting evidence. See State v. Moore, 269 Kan. 27, 30, 4 P.3d
1141 (2000). "The jury is charged with the responsibility of weighing the evidence and
determining witness credibility. Appellate courts do not reweigh the evidence or decide
which witnesses are credible." State v. Corbett, 281 Kan. 294, 310, 130 P.3d 1179
(2006).

The relative importance of testimony about the presence or absence of a penile
scar was something the jury was supposed to decide. The panel's queries about the scar
evidence, e.g., whether such a scar is permanent, went to the weight to be attached to that
evidence and invaded the province of the jury. Likewise, the panel was figuratively on
jury duty when it assessed the credibility of the victim. Appellate courts should "let the
jury decide whether to believe a witness." State v. Leaper, 291 Kan. 89, 108, 238 P.3d
266 (2010) (Johnson, J., concurring). Certainly, appellate courts should not excuse
constitutional violations based upon a cold record assessment of a witness' believability.

Although Brooks was provided the opportunity to cross-examine S.C., he was
denied the opportunity to do so effectively because of his counsel's deficient
performance. A defendant's right to impeach a complaining witness' credibility is a
fundamental right, protected by the Confrontation Clause of the Sixth Amendment: "In
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him." The primary purpose of the Confrontation Clause is to give the
accused the opportunity for cross-examination to attack the credibility of the State's
10



witnesses. State v. Johnson, 240 Kan. 326, 329, 729 P.2d 1169 (1986) (citing Delaware v.
Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 [1986]; Davis v.
Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 [1974]), cert. denied 481
U.S. 1071 (1987). "'By allowing criminal defendants to cross-examine witnesses and by
allowing the trier of fact to evaluate the credibility of those witnesses, the right of
confrontation promotes both the reliability of criminal trials and the perception of fairness
in our criminal justice system.'" State v. Humphrey, 252 Kan. 6, 21, 845 P.2d 592 (1992)
(quoting Myatt v. Hannigan, 910 F.2d 680, 682 [10th Cir. 1990]).

Where a court has denied a defendant's opportunity to impeach a complaining
witness, we have found reversible prejudice. See State v. Atkinson, 276 Kan. 920, 927-29,
80 P.3d 1143 (2003) (precluding cross-examination of complaining witness about prior
consensual sexual relationship with defendant violated "fundamental right to a fair trial"
because witness' credibility critical issue); see also State v. Macomber, 241 Kan. 154,
158-59, 734 P.2d 1148 (1987) (reversing conviction when cross-examination not allowed
about allegedly false preliminary hearing testimony of key witness). Likewise, in State v.
Beans, 247 Kan. 343, 800 P.2d 145 (1990), where a defendant charged with rape was
prohibited from introducing evidence impeaching the complaining witness' testimony on
a collateral matter, this court found reversible error:

"In the present case, consent was the sole issue in dispute concerning the rape
charge against Beans. Thus, the truthfulness of G.W.'s testimony was an all-important
element in the State's case. Where the State offered testimony by G.W. concerning her
prior conviction of prostitution and probation, the trial court erred in refusing to allow
rebuttal evidence to show the falsity in her testimony. The credibility of G.W. is the heart
of the State's case." 247 Kan. at 348.

11



See also State v. Davis, 237 Kan. 155, 161, 697 P.2d 1321 (1985); State v. Nixon, 223
Kan. 788, 796-97, 576 P.2d 691 (1978) (both finding prejudicial error where defendant
was prohibited from introducing evidence to impeach credibility of complaining witness).

Here, the truthfulness of S.C.'s testimony "was an all-important element in the
State's case," Beans, 247 Kan. at 348, and the fairness of the trial hinged upon Brooks'
exercise of his fundamental right to test the reliability of that critical testimony "in the
crucible of cross-examination." Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004). The fact that Brooks was denied that fundamental right
of cross-examination through unconstitutionally deficient counsel, rather than court
order, does not render the trial any more fair or the results thereof any more reliable.

Furthermore, in this case, the State took full advantage of the deficient
performance of defense counsel. During closing argument, the prosecutor argued to the
jury: "You heard [S.C.] which is unrefuted describe Mr. Brooks' genitalia. How it was
uncircumcised and how it had a small scar. Unrefuted. How would she know that?" Thus,
not only was Brooks denied the opportunity to attack S.C.'s credibility with her allegedly
false testimony, but the failure to cross-examine S.C. permitted the State to bolster the
credibility of its complaining witness as being unrefuted. Then, having established the
scar testimony as being true because it was unrefuted, the State used the substance of the
statement to suggest that the abuse must have occurred because that was the only way
that S.C. would have seen the scar on Brooks' penis. That use of the scar testimony would
suggest that the prosecutor considered it to be a weightier part of the State's case than did
the panel.

In short, trial counsel's unconstitutionally deficient performance denied Brooks the
opportunity to impeach S.C.'s credibility by rebutting her testimony about his alleged
penile scar and permitted the State to bolster the credibility of its complaining witness.
12



That deficient performance prejudiced the defense, denied Brooks a fair trial, and created
the reasonable probability that, but for counsel's unprofessional errors, the result of the
trial would have been different. In finding otherwise, the Court of Appeals improperly
usurped the role of the jury by considering the weight the jury would have assigned to the
scar testimony and by relying on its own perception of S.C.'s credibility. The Court of
Appeals erred in determining that Brooks had failed to establish the second prong of
Strickland. The decision of the Court of Appeals, affirming the district court, is reversed;
the judgment of the district court is reversed; and the matter is remanded to the district
court for a new trial.

Reversed and remanded for a new trial.