Marler v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,500

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RANDY ALLEN MARLER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sumner District Court; JOHN E. SANDERS, judge. Opinion filed December 20, 2019.
Affirmed.

Richard Ney and David L. Miller, of Ney, Adams & Miller, of Wichita, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

POWELL, J.: Randy Allen Marler appeals from the denial of his second K.S.A. 60-
1507 motion. In his motion, Marler alleged he received ineffective assistance of counsel
from several different attorneys—his trial counsel, his first 60-1507 counsel before the
district court, and his first 60-1507 appellate counsel—and also alleged the State
improperly suppressed evidence and cumulative error. After a thorough review of the
record, we find no reversible error and affirm the district court's denial of Marler's second
60-1507 motion.

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FACTUAL AND PROCEDURAL BACKGROUND

A. Marler's Underlying Criminal Case

At the time of the crimes in 2007, Marler and Pam Marler were married and had
two children: a daughter, H.M., and a son, T.M. The relevant facts of Marler's
underlying criminal case are set forth in the Kansas Supreme Court's opinion of his direct
appeal:

"The charges against Marler alleged that he committed sexual acts upon his 13-
year-old daughter, H.M. The allegations were originally brought to light when Marler's
wife, Pam, applied for a protection from abuse (PFA) order, in which she related that she
had witnessed Marler having oral sex with H.M. Pam sought the PFA order a few days
after Marler was arrested and incarcerated as a result of a fight with Pam.

"After the PFA application, Pam and H.M. were interviewed about the sexual
abuse incident. H.M. reported that, on a Sunday evening, her father had given her 1½
measuring cups of Nyquil, together with some pills, which made her drift in and out of a
sleep-like state for the next 3 days. She recalled awakening in bed and discovering that
she was naked and that Marler had his head between her legs, 'licking her "down there."'
H.M. also recounted that on at least three other occasions Marler had touched her breasts
and her crotch over the top of her clothing.

"Pam related a similar version of the events, reporting that on a Sunday evening
Marler had given H.M. Nyquil and a pill which she thought was either Valium or Xanex.
The next day, upon returning home from picking up her son from school, Pam discovered
Marler in bed performing oral sex on H.M. After she yelled at him to stop, Marler left the
room, at which point Pam climbed into bed with H.M. She later awoke to find Marler in
the bed, again performing oral sex on H.M. Pam was granted use and derivative use
immunity for her trial testimony, and, at trial, she also testified about using
methamphetamine with Marler.

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"Captain Jeff Hawkins questioned Marler about the allegations. Marler related
that both he and Pam had been using methamphetamines for several months and that
during that time they both discussed having a sexual encounter with H.M. Marler claimed
that it was Pam who provided the Nyquil and gave H.M. two or three Xanex tablets. He
then reported that he took H.M. on an errand to Wichita and upon their return, Pam
ordered H.M. to undress and get into bed. Marler alleged that Pam performed sex acts on
H.M. He also stated that while Pam was picking up their son from school, he attempted to
get back 'with the plan' by positioning his head between H.M.'s legs so it would look as
though he was having oral sex with her when Pam came back into the room. Captain
Hawkins asked Marler to draft a written statement, and Marler complied with the request,
bringing a handwritten, eight-page statement to Hawkins the next afternoon. The
statement recounted the events as Marler had described them to Captain Hawkins the day
before. It also included multiple references to Marler's methamphetamine use, which he
blamed for his conduct. Captain Hawkins videotaped as he reviewed with Marler the
contents of the written statement.

"At trial, Marler recanted his written statement and claimed that he made it up in
order to protect the children. His hope was that by implicating Pam, the children would
be removed from her care. Accordingly, when the children were removed from the home
and out of danger, he felt free to recant his false confession. However, Marler never
objected to the introduction of his prior confessions." State v. Marler, 290 Kan. 119, 120-
21, 223 P.3d 804 (2010).

Sean Shores represented Marler at trial.

B. Marler's Written Confession

On April 20, 2007, Marler provided an eight-page handwritten confession to his
crimes. Rather than summarize, we quote it verbatim:

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"I. Preface:

"I now see that only through complete honesty, can my family be healed. We
need to tell the truth and turn back to God. I love my wife and kids more than life itself. I
cannot bear the thought of a life without them. This statement may not be 100% accurate
to everybody else's, but it is accurate to my memory. First and foremost; I was the
instigator. My beloved wife would NEVER have participated in the sexual stuff without
my manipulation. I would never have done them without the influence of METH! I beg
God's, and my wife, and my children's, forgiveness. I was so wrong. Forgive me Pam.
Forgive me [H.M.]. Forgive me [T.M.]. Lord forgive me.

"II. Before Meth:

"For over 17 years, we loved each other very much. Pam and I were like two
peas in a pod. We was very close with our kids. We occasionally fought, but I did not
raise my hand to her.

"Pam and I were inseperable [sic], like one flesh. We used marajuana [sic]
regularly, especially Pam, she needed it to calm her. We also occasionally used cocaine.
We would buy a little for the weekend and have a fun time, and our lives would return to
normal after a day of sleep. Pam would drink a moderate amount, but was no drunkard. I
drank occasionally but mainly when we did cocaine. We spent lots of time with our kids,
and we had a happy family. I miss my kids so. I miss my Pam so much.

"III. Meth Arrives: Summer of '06

"Pam had went to Des Moines to look after her dad, like a good daughter would.
I was playing my guitar a lot more and started playing with some younger crowd who
smoked 'ice'. I tried it, and soon introduced Pam to it. God forgive me! Our sex lives
became more intense, and I began to 'stretch the envelope'. I realize now that I
manipulated Pam into doing things that she would never have done without meth.

"Pam was often very upset after doing these sexual things, because she was only
doing them because she loved me. Forgive me, my Pam. I also did things that I regret,
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like bringing [H.M.] into our sexual fantasies. I also manipulated Pam into SICK stuff
like sex with animals. Please forgive me, my Beloved Wife. It was the meth. Sometime
after Pam's Dad died, things just got out of control.

"IV. At some point we was going to drug [H.M.] and have some 'sexual
experimentation' with her. We were both foolishly involved with this. Pam gave [H.M.]
some sex toys and a sex video. I gave [T.M.] a video also. I had talked to both of them
about sex, but I had a very [explicit] and 'matter-of-fact' talk with [H.M.]. I had purchased
the toys in Wichita. Weeks before the event, I tested for a dosage of what would make
[H.M.] drowsy. Pam was not involved. I did not want us to hurt her, so I was very
carefull [sic]. During this time we—I did, Pam knew[—]also put a Panasonic security
camera in [H.M.]'s room. There was nothing [inappropriate] watched on it. The kids saw
. . . the camera the next morning.

"I had prepared two doses of what I thought was enough to cause [H.M.] to pass
out. Pam gave her the first dose before we left to go to Wichita. She instructed [H.M.] to
take a second dose 'if needed' while we was gone. I gave her the second dose at the Belle
Plaine rest area. I talked to Pam on the phone and we confirmed the plan. [H.M.] and I
was to proceed to Wichita and Pam was to get ready for the 'evening'. [H.M.] and I went
on our trip while Pam and I talked regularly on the phone. As I drove back I was
overcome with guilt. I went as slow as I could, and took every 'long cut' that I could think
of, trying to build up the courage to go through with it. When we returned, Pam was in
the tub. She was also very upset by 'the plan', and she was upset because she thought I
had been out doing stuff to [H.M.]. She was wrong. We fought until pretty late, and I was
upset because she had 'backed out' after smoking some more meth. When I went to sleep.
[H.M.] was in her bed, untouched.

"V. As I proceed, keep this in mind. Pam only participated in any of this because she
loved me, and was trying to please me. She believed that I wanted to have sex with my
daughter also, she was wrong. I was also partly doing what I thought would ultimetly
[sic] please her. If it were not for me . . . . none of this would have happened. If not for
METH . . . . .

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"I woke up the next morning to Pam yelling at [H.M.] to get her pants off and get
in bed. [H.M.] was in a stupor and very drowsey [sic]. Pam gave her more drugs, and we
tried to feed her breakfast. She ate some, but was very sleepy. I then remember Pam
getting into bed. Pam and I both tried to arouse [H.M.] by fondling her, and Pam sucked
her nipples. At one point I tried to have oral sex with her—I could not. So did Pam. Pam
could not do it. As Pam watched, I inserted a vibrator into [H.M.]. We observed that she
wasn't a virgin. Pam put her vagina against [H.M.]'s (as best she could) and tried to rub
them together. She then attempted to have oral sex with her. [H.M.] swatted and kicked at
her. She wanted to handcuff her and I refused. I said I would do nothing like that, and
began to feel like I needed to protect [H.M.]. I held [H.M.] close to me as she slept. Pam
was upset. At the time, I thought she was upset because I had 'stopped the plan'. I
however certainly did not want [H.M.] to wake up, so I then gave her more drugs. In the
afternoon, after we had been fighting all day Pam left to get [T.M.]. When I saw her
returning, I attempted to show her that I was 'back on board' (and tried to get her back on
board) with the plan by appearing to be having oral sex with [H.M.]. Even at that, I did
not feel right, and stopped immediately. Pam was upset, as we both were. We were both
upset because we could not go through with it, but yet we had committed ourselves
already. Later, 8:00-9:00 PM, after smoking more meth, we tried again. Pam thought I
wanted to have sex with [H.M.] without her, so she left the room for a while. I could not
do it. When Pam returned, I told her that she was my wife, and there was no sex without
her. She got in bed and had vaginal to vaginal sex with [H.M.]. She and I was upset by
this. She took [H.M.] to bed. [H.M.] missed a couple of days of school, and we thought
she did not remember.

"VI. After that [H.M.] has never been touched again. However, meth had done it's
[sic] damage. Pam and I fought because of both of our guilt. More than anything Pam
was a victim of manipulation. A couple of months ago we fought and Pam left me. I
found out that she had drank in [Des Moines]. She had lied to me about her promise not
to. I got a few pieces of (questionable info) and used them to hold her to me by guilt.
Even though I KNEW she had never been unfaithful to me. This is the greatest wrong
that I ever did to Pam. We was still using meth. Pam please forgive me! I made such a
HUGE mistake! At any rate, since we was still using, the cycle was continuing, I had
bought a hidden camera off of e-Bay, and I was experimenting on putting it in [H.M.]'s
room. I never taped anything inappropriate. Since then I see that getting arrested, and
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clean, stopped a terrible cycle of the destruction of my marriage, and my family. These
are the things that Satan, and meth once had on me. To cause these terrible fights.

"VII. I now know that there is only 1 thing in this world that my wife and daughter
would be interested in: my complete and total honesty. Yesterday, I saw Pam mouth the
words to [H.M.]: 'We have to tell the truth so things can get better'. I thought about the
wisdom in my wife's words, all night long. I will NEVER lie to her again. Also, I will
never manipulate her again. My wife, by this, will know that I have changed. All of this
terrible situation rests squarely on me. NOT MY WIFE! I want to heal my family. I will
take drug rehab, family counseling, anger management, whatever it takes. I only want to
take that good job with insurance, and 401K plan, and security for my wife and kids. I
want us to have a nice home, car, and my wife and kids to have nice things.

"VIII. Everyone tells me that I have lost my family. They tell me Pam has moved on. I
know she has not. I know she is the only person in this world that truely [sic] loves me.
She also knows how much I love her. I pray to God every day to help her see that it can
be the same. She will put her wedding band back on. Pam is my only lover for life."

Shores did not object to the admission of this confession at trial. The jury
convicted Marler of rape, aggravated indecent liberties with a child under age 14, and
endangering a child. Marler was sentenced to two consecutive hard 25 life sentences.

C. Marler's Direct Appeal

Marler directly appealed his convictions and sentences and was represented by
Rachel Pickering. Marler challenged the admission of the evidence of his prior drug use
under K.S.A. 60-455, the limiting jury instruction given on that drug use, the denial of his
sentencing departure motion, and the constitutionality of his sentences as being
disproportionately severe in violation of the Eighth Amendment to the United States
Constitution's prohibition of cruel and unusual punishment.
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The Kansas Supreme Court did not address Marler's argument concerning the
admission of the K.S.A. 60-455 drug evidence because Shores had not preserved the
issue for appeal. 290 Kan. at 123. The court also did not address the unconstitutionality of
Marler's sentence because "Marler did not even suggest to the district court that he was
claiming an unconstitutionally disproportionate sentence." 290 Kan. at 128. Ultimately,
our Supreme Court affirmed his convictions and sentences. 290 Kan. at 129.

D. Marler's First 60-1507 Motion

Following his direct appeal, Marler filed a pro se 60-1507 motion and brief in
support that was over 100 pages long. The motion alleged his trial counsel, Shores, was
ineffective by failing to properly prepare and investigate the case, failing to properly
develop a reasonable defense strategy, using mind-altering substances at least during
preparation of this case, failing to address a defective complaint, and being guilty of
ethical violations.

Kerwin Spencer was appointed as Marler's 60-1507 counsel before the district
court. The district court conducted a two-day evidentiary hearing on Marler's motion.
After the hearing, Spencer filed a citation of legal authorities concerning issues relevant
to the use of Marler's statements at trial.

The district court issued a 70-page decision denying Marler's 60-1507 motion,
addressing at length the evidence presented at trial and Shores' failure to (1) seek a bill of
particulars; (2) file a motion to suppress Marler's confession; (3) move to admit the video
of Marler's statements on April 19, 2007, if the confession was admissible; (4) move to
admit Marler's written letter on April 25, 2007, recanting his confession, if the confession
was admissible; (5) move to admit phone records; (6) object to the admission of evidence
of other crimes at trial; (7) raise the issue regarding the lack of the element of the age of
Marler in the complaint; (8) file a motion for judgment of acquittal after the State's case-
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in-chief; (9) submit a proposed K.S.A. 60-455 instruction; (10) prepare for trial; (11)
meet more often with Marler; (12) raise cruel and unusual punishment arguments at
Marler's sentencing; (13) file a more in-depth motion for a new trial; and (14) put
documents from a related child-in-need-of-care case into evidence.

Marler appealed the denial of his first 60-1507 motion to this court. Gerald E.
Wells was appointed to represent Marler and narrowed his numerous claims into four:
(1) Shores' failure to file a motion to suppress Marler's confession; (2) Shores' failure to
object to the introduction of Marler's drug use; (3) Shores' failure to contest the State's
failure to prove Marler's age; and (4) Shores' failure to argue his consecutive hard 25
sentences amounted to cruel and unusual punishment.

After reviewing the entire record, including the interviews, the panel held, first,
that "even if Shores had moved to suppress Marler's confession, it would have been
unsuccessful" because the confession was "the product of his free and independent will."
Marler v. State, No. 108,722, 2013 WL 5870049, at *7 (Kan. App. 2013) (unpublished
opinion). Second, Shores' decision not to object to Marler's prior drug use was a strategic
decision and not deficient performance. Third, the evidence at trial established Marler
was over the age of 18 when he committed the crimes. 2013 WL 5870049, at *7-9.
Fourth, applying the factors in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), to
assess the constitutionality of Marler's sentence, the panel found "no reasonable
probability that Marler would have prevailed in arguing that his hard 25 sentences were
cruel and unusual." 2013 WL 5870049, at *13. The panel found no error on the part of
Shores and denied relief on all grounds. 2013 WL 5870049, at *13.

E. Marler's Second 60-1507 Motion

After being denied relief on his first 60-1507 motion, Marler retained his present
counsel, Richard Ney, to pursue another 60-1507 motion. In his amended 60-1507
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motion, Marler raised 11 issues, the majority of which fault Shores' representation at trial,
Pickering's representation on direct appeal, Spencer's representation before the district
court on Marler's first 60-1507 motion, and Wells' representation on the appeal of the
denial of Marler's first 60-1507 motion. Specifically, Marler argued he was denied his
statutory right to the effective assistance of habeas counsel when Spencer failed to raise
the issue that Shores was ineffective for: (1) failing to suppress Marler's written and oral
statements based upon a violation of his right to counsel; (2) failing to object, under the
corpus delicti rule, that Marler's uncorroborated confession to the rape and aggravated
indecent liberties with a child charges was insufficient to sustain those convictions; (3)
failing to timely communicate the State's plea offer to Marler; and (4) failing to object to
or eliciting highly prejudicial prior bad acts evidence that Marler physically abused Pam,
that he ran from law enforcement after their domestic dispute, and that he had
pornography on his computer. Marler also argued he was denied his statutory right to the
effective assistance of habeas counsel when Spencer: (5) failed to raise the issue that
Pickering was ineffective in failing to raise a sufficiency of the evidence issue as to
Marler's convictions of rape and indecent liberties on direct appeal based upon the corpus
delicti rule; (6) failed to introduce available evidence of Shores' overall incompetency,
including that Shores was under the influence of mind-altering substances at the time of
Marler's trial and was facing disbarment at the time of Marler's first 60-1507 hearing; and
(7) failed to thoroughly investigate the case, interview witnesses, and adequately prepare
for the first 60-1507 evidentiary hearing. Additionally, Marler argued: (8) he was denied
his statutory right to the effective assistance of appellate habeas counsel when Wells
failed to raise Spencer's ineffectiveness at the district court's 60-1507 evidentiary hearing
or request a remand for a full consideration of all issues of ineffective assistance of
counsel; (9) he was denied his statutory right to the effective assistance of habeas counsel
when Spencer failed to fully investigate the case by failing to obtain the tape-recorded
interview of Pam that significantly impeached Pam's trial testimony; (10) he was denied
his statutory right to effective assistance of habeas counsel by the cumulative effect of the
errors and omissions made by both Spencer and Wells because they incompetently failed
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to assert Marler's legitimate Sixth Amendment to the United State Constitution
ineffective assistance of counsel claims against Shores and Pickering; and (11) the
prosecutor suppressed a tape-recorded interview of Pam that contained material,
exculpatory evidence.

The district court held a two-day evidentiary hearing on the motion. At the
hearing, 13 witnesses testified and 18 exhibits were ultimately admitted. The district
court issued a 33-page written opinion denying Marler's motion.

Marler timely appeals.

ANALYSIS

On appeal, Marler raises nine arguments. Rather than briefly introduce each of
these up front, we will discuss Marler's arguments in order.

Our standard of review applicable to Marler's contentions of error is well known.
The district court has three options when reviewing a K.S.A. 60-1507 motion:

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

The standard of review depends upon which of these options a district court
utilizes. 300 Kan. at 881. After a full evidentiary hearing on a 60-1507 motion, as was the
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case here, the district court must issue findings of fact and conclusions of law concerning
all issues presented. Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 228). "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, 355, 172 P.3d 10 (2007). We review the district court's
findings of fact to determine whether they are supported by substantial competent
evidence and are sufficient to support the court's conclusions of law. Our review of the
district court's ultimate conclusions of law is de novo. 285 Kan. at 355.

I. WAS MARLER DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF HABEAS
COUNSEL WHEN SPENCER FAILED TO INTRODUCE AVAILABLE EVIDENCE OF
SHORES' OVERALL INCOMPETENCY?

First, Marler argues that he was denied his right to effective assistance of habeas
counsel when Spencer failed to introduce available evidence of Shores' overall
incompetency. Specifically, Marler claims that Shores was on mind-altering substances at
the time of trial, which led Shores' representation of Marler to be deficient, and Spencer
was ineffective for failing to raise this issue in Marler's first 60-1507 motion. The State
responds that the district court never concluded that Shores was under the influence of
mind-altering substances at the time of Marler's trial, making Marler's claim meritless.

Essentially, Marler's argument requires two showings of ineffective assistance of
counsel. Marler must first show that Shores was ineffective, then Marler must show that
Spencer was ineffective for failing to raise Shores' ineffectiveness. If Shores was not
ineffective, then Marler's allegation that Spencer was ineffective cannot succeed.

To prevail on a claim of ineffective assistance of counsel, "a criminal defendant
must establish (1) the performance of defense counsel was deficient under the totality of
the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury
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would have reached a different result absent the deficient performance." Sola-Morales,
300 Kan. at 882; see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674, reh. denied 467 U.S. 1267 (1984). Judicial scrutiny of counsel's performance
in a claim of ineffective assistance of counsel is highly deferential and requires
consideration of all the evidence before the judge or jury. The reviewing court must
strongly presume that counsel's conduct fell within the broad range of reasonable
professional assistance. See State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). To
establish prejudice, the defendant must show a reasonable probability that, but for
counsel's deficient performance, the outcome of the proceeding would have been
different, with a reasonable probability meaning a probability sufficient to undermine
confidence in the outcome. See State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828
(2015).

Senior Judge John E. Sanders presided over the evidentiary hearing on Marler's
second 60-1507 motion. The evidence presented at that hearing revealed Shores suffered
from bipolar disorder and anxiety issues. He also had issues with recurrent kidney stones.
He used Seroquel and Xanax for the mental disorders and "used and abused" Dilaudid,
Morphine, Lortab, and Percocet.

District Judge William R. Mott presided over both Marler's criminal trial and first
60-1507 evidentiary hearing. Judge Mott testified that he did have some frustration with
Shores showing up for hearings, but that was not an unusual experience with some
Wichita attorneys not wanting to come down to Sumner County. He described an incident
shortly before trial when Shores called and requested a continuance due to a bout with
kidney stones. Judge Mott recalled that Shores was hurting, and he may have been on
painkillers so he did not want to drive, and Judge Mott granted the continuance. On the
phone, Shores "was a little weak, sounded kind of timid, a tick slow, sluggish." However,
Judge Mott did not have any concerns about or knowledge of the possibility of Shores
abusing medications.
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Further, Judge Mott did not notice anything about Shores' trial performance that
caused him concerns about Shores being on medications. Judge Mott did correct Shores
several times about vague or compound questions but that was "a general problem we
have in our bar now. That people don't have enough trial experience." He did not witness
anything when Shores appeared before him to cause him to believe that he was impaired.

Shores' ex-wife also testified. She and Shores married in April 2008, and the
Marler trial was the next month. She testified that before their marriage Shores used
painkillers on a monthly basis and also used marijuana. She said they went to the
emergency room a lot for Shores' kidney stones and that they were confirmed with CT
scans. During the early months of their marriage—April, May, June—Shores would
occasionally take painkillers, but she did not recall seeing Shores slur his speech during
this period, as he frequently did late in their marriage when he started taking different and
stronger medications. She testified that Shores' behavior started to get worse around five
months into their marriage, which was after the Marler trial.

Shores' former legal assistant testified as well. She worked for Shores from June
2005 until September 2009. She believed Shores did suffer from kidney stones because
she had witnessed him lying on the floor of his office in pain from the stones and that he
abused the painkillers he was prescribed for the kidney stones. She stated that Shores had
difficulty in responding to calls and attending court appearances, but those difficulties
were in the last six months to a year that she worked for him—after the Marler trial. Like
Shores' ex-wife, she could not recall if Shores was having difficulties during the time of
the Marler trial.

Finally, Spencer testified. He recognized that proving something wrong with
Shores' representation of Marler was Marler's best opportunity to prevail on his 60-1507
motion. However, Spencer testified he did not find deficiencies with Shores'
representation of Marler.
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"[T]he material issue [was] whether or not there was a deficit in [Shores'] courtroom
performance. And it might be relevant in evaluating that whether or not he was under the
influence of drugs or not at the time. But even if he were under the influence of drugs, if
his courtroom performance was satisfactory, then it's not a material issue."

Unfortunately, the best witness available to speak to the topic—Shores himself—
died shortly after the filing of Marler's second 60-1507 motion. Also of note, disbarment
proceedings against Shores were commenced in May 2011, some three years after
Marler's trial. Marler's first 60-1507 motion was filed in January 2011 and denied in April
2012 while Shores' disbarment was pending. The Kansas Supreme Court disbarred
Shores on July 6, 2012. In re Shores, 294 Kan. 680, 279 P.3d 710 (2012).

Judge Sanders acknowledged that determining Shores' effectiveness in light of his
alleged drug use would be difficult because he was not the trial judge in Marler's
underlying criminal case and did not have the opportunity to observe Shores' actions first-
hand during all phases of the trial. He gave great weight to Judge Mott's testimony as
being "the most reliable as to [Shores'] physical and mental condition at trial."

The district court adopted the State's summary in its proposed findings of fact and
conclusions of law. That summary reads:

"The imperfect man was no perfect attorney. Not infrequently, Shores appeared late in
court. Not infrequently, Shores altogether failed to appear in court when expected.
Others' attempts to contact Shores failed, with some frequency. And he occasionally
might not visit the office for days, though he sometimes carried on his work at home.
Once periodic, Shores' shortcomings recurred more and more often. In the late summer of
2009, Shores['] recurrent problems worsened enough to end his marriage and cause his
secretary to quit. By September 2010, Sumner County removed Shores from certain
appointment lists. In May 2011, disciplinary proceedings commenced against Shores.
And in July 2012, the accumulated complaints made by two judges, 3 former clients, and
the disciplinary administrator resulted in Shores' disbarment."
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The district court "ha[d] no doubt that Shores was struggling with drugs during the
times he represented Marler." Ultimately, the district court concluded that it was "almost
impossible to determine when and if at any particular time (except for the phone hearing
on March 8, 2008, concerning the continuance) Shores may have been acting under the
influence while working on Marler's case either beforehand or during the trial." A review
of the record on appeal indicates that this conclusion was based on substantial competent
evidence.

In denying Marler's second 60-1507 motion, the district court found:

"The 'substance abuse issue' has caused the Court a great deal of concern. The thought of
an attorney representing a defendant while under the influence of incapacitating drugs
and providing incompetent representation in any trial as a result, let alone one that carried
the specter of two 'hard 25' consecutive sentences as did Marler's case, is any judge's
worst nightmare."

Given the testimony, the district court could not find fault with Spencer's
representation of Marler during his 60-1507 motion and held:

"The Court doubts that the generalized testimony from the above witnesses who were
unable to definitively link prior evidence of drug use to Shore[s'] courtroom performance
would have produced 1507 relief. From the testimony of [Shores' former legal assistant]
above, it appears likely that Shores['] drug use eventually led to a dramatically worse
deterioration in Shores['] professional performance after the Marler trial.

"While the Court has no doubt that Shores struggled with a drug addiction, the
evidence in this case is sufficiently conflicted or so vague to the point that it becomes
virtually unknowable how or if Shores['] drug use affected his performance. The personal
observations by Judge Mott of Shores' performance during the Marler case from start to
finish weigh[] heavily against Marler's contentions in regard to this issue. The Court finds
that Spencer caused Marler no prejudice."
17
We are unpersuaded by Marler's arguments concerning Spencer's alleged
ineffectiveness. First, Marler essentially asks us to reweigh the evidence presented at the
evidentiary hearing, to give more credibility to Marler's testimony than Judge Mott's, and
to find that Shores was impaired during his representation of Marler, making his
performance deficient. However, we cannot "reweigh the evidence, assess the credibility
of the witnesses, or resolve conflicting evidence." State v. Llamas, 298 Kan. 246, 254,
311 P.3d 399 (2013).

Second, because Spencer and the district court determined that Shores had not
been ineffective in his representation of Marler at trial, Spencer was not deficient for not
raising Shores' drug use. Importantly, "a defense attorney's use of drugs or alcohol does
not establish ineffective assistance of counsel per se." Johnson v. State, 42 Kan. App. 2d
1057, 1066, 221 P.3d 1147 (2009), rev. denied 291 Kan. 912 (2010); see Neth v. State,
No. 100,618, 2010 WL 744790, at *3 (Kan. App. 2010) (unpublished opinion) (holding
that despite defense counsel's confirmed drug use at time of trial counsel was not
ineffective because counsel's representation at trial was appropriate); Jones v. State, No.
90,390, 2004 WL 2085584, at *5 (Kan. App. 2004) (unpublished opinion) (holding
defendant had not shown attorney's performance was deficient even if court assumed
attorney was using cocaine at time of trial); see also State v. Wallace, 258 Kan. 639, 646,
908 P.2d 1267 (1995) (holding defense attorney's violation of lawyer ethics rules does
not by itself establish constitutionally ineffective counsel; defendant still must show
attorney's work was below standards).

Marler had to establish that Shores' representation was below standards, not just
that Shores was using drugs at the time of Marler's trial. "'[O]nly by pointing to specific
errors made by trial counsel'" can a defendant prove ineffective assistance of counsel.
State v. Cheatham, 296 Kan. 417, 434-35, 292 P.3d 318 (2013) (quoting United States v.
Cronic, 466 U.S. 648, 666, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]). Marler fails to do
18
so. Therefore, Spencer was not deficient for failing to raise this issue in Marler's first 60-
1507 motion. Marler has not satisfied the first requirement of the Strickland test.

II. WAS MARLER DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF HABEAS
COUNSEL WHEN SPENCER FAILED TO CHALLENGE THE ADMISSIBILITY OF
MARLER'S CONFESSION?

Marler next argues—another multilayered claim of ineffective assistance of
counsel—that Spencer was ineffective for failing to assert Shores' ineffectiveness for not
challenging the admissibility of his confession at trial. Specifically, he argues that his
confession was inadmissible because he invoked his right to counsel and, therefore,
Shores should have argued his confession was inadmissible under Edwards v. Arizona,
451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). The admissibility of Marler's
confession was addressed—albeit on different grounds—in Marler's appeal of his first
60-1507 motion. The prior panel described Marler's interview and confession with
Captain Jeff Hawkins as follows:

"Captain Hawkins conducted two interviews with Marler. The first interview
took place on April 19, 2007, and the second one took place on April 20, 2007. Prior to
the April 19 interview, Hawkins provided Marler with oral and written Miranda
warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). Marler waived his Miranda rights and agreed to speak with Hawkins. At the end
of the April 19 interview, Marler agreed to make a statement in writing and told Hawkins
that he would let Hawkins know when he was finished. The following day, April 20,
Marler notified Hawkins through the jail staff that Marler wanted to see him. Hawkins
met with Marler, and Marler gave Hawkins his written statement. Hawkins again
provided Marler with oral Miranda warnings, which Marler waived, agreeing to speak
with Hawkins about the written statement. Marler's eight-page written statement was
admitted into evidence at trial without objection." Marler, 2013 WL 5870049, at *3.

19
Marler claims that at the end of his first interview with Hawkins he stated, "Well, I
need my court appointed lawyer, or whatever, to make a deal." However, this is not
Marler's entire statement, and the context of his statement is important.

First, before making this statement, Marler had already agreed to write a statement
and give it to Hawkins. Marler was then trying to figure out if his cooperation could
result in a bond modification to permit him to work. After the pair left the interview
room, Hawkins explained that he could only tell the county attorney what happened but
does not make recommendations. Marler then made the following comment: "Well, I
need to get my court appointed lawyer, or whatever, and have them try to work some deal
then or something. Is that how that works?"

At Marler's first 60-1507 evidentiary hearing, Shores testified that he did not move
to suppress the confession because Marler's statement was, in his opinion, far beyond the
scope of requesting an attorney and caselaw did not support suppression on that ground.
Spencer testified he did not raise the issue because he believed Marler's mention of an
attorney was in the nature of something he wanted to do in the future, not that Marler was
saying he wanted an attorney right at that moment or would not speak further without
one.

The district court held that Marler could not show prejudice because the
confession was admissible and neither the outcome of the trial nor the first 60-1507
motion would have been affected by either Shores or Spencer raising the issue.

As to the propriety of Marler's confession,

"[i]t is well settled that the Fifth Amendment to the United States Constitution
guarantees the right against self-incrimination, including the right to remain silent and the
right to have an attorney present during custodial interrogation. State v. Walker, 276 Kan.
20
939, 944, 80 P.3d 1132 (2003) (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct.
1602, 16 L. Ed. 2d 694 [1966]). We have held that if the accused has unambiguously
invoked the right to counsel, questioning must cease immediately and may be resumed
only after a lawyer has been made available or the accused reinitiates the conversation
with the interrogator. Walker, 276 Kan. at 946. But if the accused's request is ambiguous,
the interrogator may ask clarifying questions. 276 Kan. at 945." State v. Salary, 301 Kan.
586, 604, 343 P.3d 1165 (2015).

The right to counsel may be invoked at any time. State v. Walker, 276 Kan. 939,
944, 80 P.3d 1132 (2003). "To successfully invoke the right, the accused must, at a
minimum, make '"some statement that can reasonably be construed to be an expression of
a desire for the assistance of an attorney in dealing with custodial interrogation by the
police."' 276 Kan. at 944 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct.
2204, 115 L. Ed. 2d 158 [1991])." Salary, 301 Kan. at 604. If there is a successful
invocation of the right to counsel, all statements made after the invocation of the right to
counsel must be suppressed. See Walker, 276 Kan. at 945, 953.

There are two inquiries to be made when determining if a defendant has
successfully invoked his right to counsel: "First, the suspect 'must articulate his desire to
have counsel present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney.' . . .
Second, the request must be for assistance with the custodial interrogation, not for
subsequent hearings or proceedings." 276 Kan. at 945.

Under the first inquiry,

"an objective standard is applied in determining if the statements by the accused '"can
reasonably be construed to be an expression of a desire for the assistance of an attorney."'
Davis, 512 U.S. at 459 (quoting McNeil, 501 U.S. at 178). If the desire for counsel is
presented 'sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney,' no ambiguity or equivocation
21
exists, and all questions must cease. Davis, 512 U.S. at 459. . . . When the accused makes
an ambiguous statement about asserting his or her right to remain silent or to speak with
counsel, it is good practice for the interrogator to ask clarifying questions; however, it is
not required and the questioning may continue. Davis, 512 U.S. at 459-60; State v.
Caenen, 270 Kan. 776, 787-88, 19 P.3d 142 (2001); State v. Speed, 265 Kan. 26, 37-38,
961 P.2d 13 (1998)." Walker, 276 Kan. at 945.

In Edwards, the defendant attempted to work out a deal with the police. The police
told him they could not make any deals and they gave him the phone number of the
county attorney. The defendant called the county attorney but hung up a short time later.
The defendant then stated: "'I want an attorney before making a deal.'" 451 U.S. at 479.
The following day, new detectives initiated a conversation with Edwards after giving him
another Miranda warning. The United States Supreme Court held that Edwards'
statement at the end of the first interview was a sufficient invocation of his Miranda
rights and, thus, Edwards' statements made during the second interview must be
suppressed because counsel had not been made available to him after his invocation the
previous day. 451 U.S. at 487.

However, questioning of a defendant can continue if the defendant's reference to
an attorney "is ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the [defendant] might be invoking the
right to counsel." Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed.
2d 362 (1994). After a suspect has waived his or her Miranda rights, "law enforcement
officers may continue questioning until and unless the suspect clearly requests an
attorney." 512 U.S. at 461. Further, "[a]n indication by the defendant that he will only
want counsel at some future time or for some other purpose is not an assertion of the right
to counsel." 2 LaFave, Criminal Procedure § 6.9(g) (4th ed. 2015). The statements in the
following cases have been found to insufficiently invoke the right to counsel: Davis, 512
U.S. at 455 ("Maybe I should talk to a lawyer."); State v. Mattox, 305 Kan. 1015, 1037,
390 P.3d 514 (2017) ("You all care if I get a lawyer in here?"); United States v. Mohr,
22
772 F.3d 1143, 1145 (8th Cir. 2014) ("Should I get a lawyer at this time? . . . I think I
should get one."); United States v. Wysinger, 683 F.3d 784, 789 (7th Cir. 2012) ("Do I
need a lawyer?"); Henness v. Bagley, 644 F.3d 308, 319 (6th Cir. 2011) ("I think I need a
lawyer."); United States v. Montes, 602 F.3d 381, 385 (5th Cir. 2010) ("Maybe I should
get an attorney" or "Do I need an attorney?"); Robertson v. State, 347 S.W.3d 460, 462
(2009) ("Do I need a lawyer?"). In contrast, the statements in the following cases have
been deemed a sufficient invocation of the right to counsel: Salary, 301 Kan. at 605 ("I
do want a lawyer."); United States v. Hunter, 708 F.3d 938, 940 (7th Cir. 2013) ("Can
you call my attorney?"); Wood v. Ercole, 644 F.3d 83, 87 (2d Cir. 2011) ("I think I
should get a lawyer."); People v. Lynn, 278 P.3d 365, 367 (Colo. 2012) ("When can I talk
to a lawyer?"), overruled on other grounds by People v. Kutlak, 364 P.3d 199 (2016);
Wheeler v. State, 289 Ga. 537, 537, 713 S.E.2d 393 (2011) ("I need to discuss it with a
lawyer before I . . . talk to you.").

Here, Marler's statement—"Well, I need to get my court appointed lawyer, or
whatever, and have them try to work some deal then or something. Is that how that
works?"—was not an unequivocal request for counsel. This statement is similar to the
statements above in which the defendants ask if they need a lawyer rather than state they
want a lawyer. Marler was asking if he needed a lawyer to work out a deal with his bond
so he could return to work. Further, even if this was an invocation of the right to counsel,
Marler fails on the second inquiry.

When looking to the second inquiry of the test, "the court may look at '[t]he timing
as well as the content and context of a reference to counsel [to] help determine whether
there has been an unambiguous assertion of the right to have the assistance of an attorney
in dealing with a custodial interrogation by law enforcement officers.'" Salary, 301 Kan.
at 605.

23
Here, Marler's statement was not a request for an attorney in dealing with the
custodial interrogation by law enforcement officers. Instead, this was a request to have an
arrangement made with Marler's bond so he could return to work, not to have an attorney
present during Marler's discussions with the police. Marler's comment occurred at the end
of the interrogation as Marler was leaving the room.

Additionally, even if Marler had satisfied the two requirements that his request for
counsel was unambiguous and for the custodial interrogation, his Edwards violation
claim still fails because he reinitiated discussions with police and again waived his right
to counsel, effectively waiving the previous invocation of the right to counsel. See State
v. Thurber, 308 Kan. 140, 154-55, 420 P.3d 389 (2018). Here, Marler reinitiated contact
when he told the jailers the next morning that he wanted to see Hawkins and that his
written confession was ready. At the beginning of his second contact with Hawkins he
was again informed of his Miranda rights and again waived his right to counsel.
Although the district court did not rely on this ground to find Marler's claim meritless, we
will uphold the district court's decision if it was right for any reason. Gannon v. State,
302 Kan. 739, 744, 357 P.3d 873 (2015). Marler's claim under Edwards fails.

Marler also argues his statutory right to counsel under K.S.A. 22-4503 was
violated and Spencer was ineffective for not raising the issue in his first 60-1507 motion.
K.S.A. 22-4503(a) reads in relevant part: "A defendant charged by the state of Kansas in
a complaint, information or indictment with any felony is entitled to have the assistance
of counsel at every stage of the proceedings against such defendant."

At the time of his statements to law enforcement Marler was being held on another
matter. The record does not reflect that he had been charged by the State in a complaint,
information, or indictment at that time, and Marler does not direct us to any such charge.
His argument appears to rest on flawed readings of State v. Lawson, 296 Kan. 1084, 297
P.3d 1164 (2013), and State v. Betancourt, 301 Kan. 282, 342 P.3d 916 (2015). While
24
Marler is correct that Lawson does hold that once the statutory right to counsel attaches,
waiver of counsel must be done in open court, Lawson does not support a conclusion that
a defendant has a statutory right to counsel before being charged in the case. 296 Kan. at
1098. Lawson also states that K.S.A. 22-4503 mirrors the critical stages of the proceeding
under the Sixth Amendment. 296 Kan. at 1096. The Sixth Amendment is case-specific
and would not have applied to Marler's sex crimes against H.M. because Marler had not
yet been charged with those crimes at the time of his statements. See Texas v. Cobb, 532
U.S. 162, 172, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001) ("[T]he Sixth Amendment right
to counsel attaches only to charged offenses.").

Marler also cites Betancourt, 301 Kan. at 295, to support his claim that the
statutory right to counsel under K.S.A. 22-4503 can be invoked during any police-
initiated interrogation and before an accused is criminally charged. We disagree with
Marler's interpretation. The Betancourt court actually held that the defendant had no
statutory or Fifth Amendment right to counsel because the defendant did not invoke that
right. 301 Kan. at 296.

Marler has not established that a statutory violation of his right to counsel
occurred here. As such, Marler has failed to show that Spencer was ineffective for not
arguing that Shores was ineffective for failing to argue that Marler's statements should
have been suppressed due to a violation of Marler's constitutional or statutory right to
counsel. There was no error.

III. DID THE NONDISCLOSURE OF PAM'S RECORDED INTERVIEW AMOUNT TO A BRADY
VIOLATION?

Third, Marler argues that the State failed to disclose a tape-recorded interview of
Pam that contained exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83,
87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Specifically, Marler complains that the State
25
failed to turn over a recording of a May 1, 2007 interview of Pam. We exercise de novo
review over the existence of a Brady violation but give deference to the district court's
finding of fact. State v. DeWeese, 305 Kan. 699, 709, 387 P.3d 809 (2017).

To establish a Brady violation Marler must show: (1) the evidence was favorable
because it is exculpatory or impeaching; (2) the evidence was suppressed by the State;
and (3) the evidence is "'material so as to establish prejudice.'" 305 Kan. at 710.

Marler argues that in the interview "Pam admitted to participation in the incident
with H.M." In the taped interview, Pam admits to helping carry H.M. from the couch into
Marler and Pam's bedroom, smoking methamphetamine, and getting into bed with Marler
and H.M. She also states she did not think that she sucked on H.M.'s nipple and that she
knew Marler was going to do sexual things to H.M. Marler argues this contradicts Pam's
claim that she had nothing to do with the abuse, and thus admission of the tape would
have been detrimental to her credibility.

However, as the district court held, the evidence in the interview was far from
favorable to Marler, and thus, the inculpatory evidence in the interview outweighed the
weak impeachment value. This evidence included: (1) odd and inappropriate interactions
between Marler and H.M. (such as Marler telling H.M. he wanted her to practice putting
condoms on him, telling H.M. to touch his penis, and having H.M. sit on his lap and
touching her); (2) Marler's expanding sexual fantasies (progressing from "girl-on-girl" to
wanting Pam to involve their dog in sex acts to wanting H.M. involved); (3) Marler's
February evening road trip with H.M.; (4) Pam and Marler fighting after Marler returned
from that road trip with a visibly unsteady H.M.; (5) Pam and Marler fighting the
following day before Pam left to pick up T.M. from school and fighting again when Pam
returned home to see Marler positioned to perform oral sex on H.M.; (6) fighting more
and smoking more meth with Marler that evening; (7) H.M. and T.M. receiving Nyquil
from Marler; (8) Marler giving H.M. Valium or Xanax; (8) Marler commenting to Pam
26
that H.M. was not a virgin; (9) and Marler making comments that in some places it is
normal to sell daughters for prostitution and not being bothered by a neighbor going to
prison for molesting his daughter. Importantly, throughout the interview, Pam
strenuously denied engaging in any sexual acts with H.M.

This inculpatory evidence outweighs any minimal impeachment value of the
interview. Thus, any use of the interview by defense counsel would have likely harmed
Marler, not helped him. Marler has failed to establish the first requirement of a Brady
violation.

Also important is that the district court never made a finding that the State had
suppressed the videotape. Although Marler asserts that it is undisputed that the State did
not disclose the tape until August 2016, he points to no evidence establishing that the
State agreed the tape was not timely disclosed. His only factual support for his contention
that the tape was suppressed is that Spencer did not have the tape and Marler claimed to
have never seen the tape. This does not mean the tape was never disclosed to Shores. We
cannot assume the videotape was suppressed given the record on appeal. We see no
Brady violation.

IV. DID MARLER RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS
ATTORNEYS DID NOT RAISE A SUFFICIENCY OF THE EVIDENCE ISSUE AS TO
MARLER'S CONVICTIONS OF RAPE AND INDECENT LIBERTIES UNDER THE CORPUS
DELICTI RULE?

Next, Marler argues that his attorneys at multiple different points in his
representation were ineffective for failing to argue sufficiency of the evidence based on
the corpus delicti rule. In essence, Marler argues that his confession alone was
insufficient to support his convictions. Specifically, Marler argues that Spencer was
ineffective for failing to assert Shores' ineffectiveness for failing to argue that Marler's
27
uncorroborated confession to the rape and aggravated indecent liberties with a child
charges was insufficient to sustain those convictions. He also argues that Spencer was
ineffective for failing to assert Pickering's ineffectiveness for failing to raise the corpus
delicti issue on direct appeal.

Like his other claims of ineffective assistance of counsel, if Shores was not
ineffective for failing to raise the corpus delicti rule, then Marler's argument that
Pickering and Spencer were ineffective for failing to raise Shores' failure to raise the
corpus delicti issue at trial cannot succeed because he cannot show prejudice.

"Corpus delicti is Latin for 'body of the crime.' It refers to the basic injury in a
crime, such as the death in a murder, and a showing that this injury resulted from criminal
activity." State v. Dern, 303 Kan. 384, Syl. ¶ 5, 362 P.3d 566 (2015). "In Kansas, the
State may satisfy its burden to make a prima facie showing of the corpus delicti through a
trustworthy extrajudicial confession or admission to any crime that does not naturally or
obviously produce a tangible injury easily susceptible to physical proof." 303 Kan. 384,
Syl. ¶ 7.

"A determination of trustworthiness will depend on the totality of the
circumstances and may include a consideration of the following nonexclusive factors or
indicia of reliability: (1) independent corroboration of details or specific facts contained
in the confession; (2) the number of times the confession was made and the consistency
or lack thereof between different versions of the confession; (3) the circumstances of the
confession, including the identity of the person or persons to whom the confession was
made and the state of mind of the defendant at the time of the confession; (4) the
availability of the facts or details contained in the confession from sources outside the
defendant's personal knowledge; (5) the defendant's age, education, experience, and
mental health; and, (6) if the confession was made to law enforcement, then the overall
fairness of the exchange including whether there was deception, trickery, undue pressure,
or excessive length.

28
"The evidentiary standard for finding a confession or admission sufficiently
trustworthy to satisfy the State's obligation to present a prima facie showing of the corpus
delicti is akin to the standard of review applicable to sufficiency of the evidence claims—
i.e., it asks whether, viewed in the light most favorable to the prosecution, the totality of
the circumstances is such that a rational factfinder could, considering all of the evidence,
find beyond a reasonable doubt that the charged crime actually occurred." 303 Kan. at
410-11.

"A conviction of even the gravest offense may be sustained by circumstantial
evidence," and this is true when it comes to the independent evidence necessary to satisfy
the corpus delicti rule:

"The quantum of independent evidence necessary to corroborate the corpus delicti in a
criminal prosecution relying upon the extrajudicial confession of an accused need not be
great. So long as there is some evidence which renders the corpus delicti more probable
than it would be without the evidence, the essential purposes of the independent evidence
rule have been served." State v. Bradford, 254 Kan. 133, Syl. ¶¶ 1-2, 864 P.2d 680
(1993).

Marler takes issue with both his rape and aggravated indecent liberties with a child
convictions and the corpus delicti supporting them. First and foremost, "the corpus delicti
in a rape case may be proved by extrajudicial admissions and circumstantial evidence."
State v. Higdon, 224 Kan. 720, 723, 585 P.2d 1048 (1978). Similarly, the Kansas
Supreme Court applied this standard to a conviction of indecent liberties with a child in
State v. Tillery, 227 Kan. 342, 346, 606 P.2d 1031 (1980).

In Tillery, the defendant was convicted of indecent liberties with a child after
admitting to kissing a four-year-old child on the mouth, lips, and vagina and to rubbing
his penis on her. During this same extrajudicial admission, Tillery reported that he
removed his shirt before the sexual abuse, lost his shoes during his flight from the victim,
and generally smoked Pall Mall unfiltered cigarettes. On appeal, he argued that, under the
29
corpus delicti rule, no evidence corroborated the sexual contact admitted to in his
confession and no witnesses identified Tillery at trial. Still, evidence corroborated other
details of his confession to satisfy the corpus delicti rule: eyewitnesses saw a shirtless
man kneeled over a victim with her underwear askew, and the man ran away when others
approached and left behind shoes and a shirt containing Pall Mall unfiltered cigarettes.
This circumstantial corroboration of the less-incriminating aspects of Tillery's confession
made his confession's incriminating aspect believable, and the Supreme Court affirmed
his conviction. 227 Kan. at 346-47.

Marler argues his confession was not reliable under the trustworthiness standard.
However, there was sufficient circumstantial evidence to corroborate Marler's confession.
The State provided a lengthy chart both before the district court and before us showing
corroborating trial evidence establishing the confession's reliability.

 Marler confessed: "Our sex lives became more intense, and I began to 'stretch
the envelope.' . . . Pam was often very upset after doing these sexual things,
because she was only doing them because she loved me. . . . I also did things
that I regret, like bringing [H.M.] into our sexual fantasies." At trial, Pam
testified that prior to the sexual abuse Marler would talk about doing so and he
"always had his fantasies about other women" and would mention H.M.'s
name, and "[w]hat he wanted to do. What he wanted us to do." H.M. also
testified that she had previously mentioned Marler's odd sexual behavior to her
mother and that whenever Pam confronted Marler about it they would fight, so
H.M. "didn't say anything to [Pam] because [H.M.] always didn't want them to
fight."

 Marler confessed: "Pam gave H.M. some sex toys and a sex video" and that he
had purchased the toys in Wichita. Hawkins testified at trial that during H.M.'s
sexual abuse evaluation interview H.M. reported "my dad gave me sex toys, a
30
vibrator, so I didn't feel like I had to go to a boy for sex." Pam told Hawkins
she gave H.M. the toys at the direction of Marler. A social worker also
testified that, in separate interviews, Pam indicated that she gave H.M.
vibrators because Marler told her to, and H.M. indicated that she got a vibrator
through Marler.

 Marler confessed: "I had talked to both of them about sex, but I had a very
[explicit] and 'matter-of-fact' talk with [H.M.]" H.M. testified that Marler
started to become "[r]eally perverted" and would ask her "really sexual things"
and ask her to come sit on his lap. T.M. also testified that around New Years of
2007 Marler "had been acting really weird around my sister" and that Marler
would ask her "really weird questions and stuff about, you know, inappropriate
things that . . . he shouldn't be asking her about." T.M. also testified: "I
remember H.M. told me a few times that she was scared of him and scared of,
you know, something like that happening."

 Marler confessed: "Weeks before the event, I tested for a dosage of what
would make [H.M.] drowsy." T.M. testified Marler first drugged his sister and
him about a week before the sexual abuse occurred. T.M. stated, "I remember
him saying that we both had like a fever, even though I felt fine, and he, like,
gave us—he gave me, like, Nyquil. . . . [I]t put me out for . . . awhile," until the
next morning.

 Marler confessed that H.M. was drugged on the trip to Wichita. Russell
Beckwith, a friend of Marler's, testified that he met with Marler in the Wichita
area between 12 a.m. and 1 a.m. on February 26, 2007, and that H.M. was with
Marler and she appeared sleepy.

31
 Marler confessed that H.M. was drugged during the abuse and that he "did not
want [H.M.] to wake up, so I then gave her more drugs." Pam confirmed that
H.M. was drugged during the sexual abuse. H.M. testified: "My dad drugged
me and—with Nyquil and pills and I was out for almost a week, I think." She
also testified that Marler gave her "[t]wo and a half of those little medicine
cups" of Nyquil followed by pills and that "[w]henever I woke up and heard
my mom yelling, I remember him giving me some more."

 Marler confessed: "In the afternoon, after we had been fighting all day Pam
left to get [T.M.]." Pam testified that she "went to school to pick up [T.M.] and
I came home and found them" and that she got "angry" and that she and Marler
got into an argument. T.M. recalled that his mom picked him up from school
and that after she brought him home he heard his parents fighting.

 Regarding the sexual abuse itself, H.M. testified:

"All I seen was my dad doing oral things, and I just seen that and kicked and
turned around and said, 'No, Daddy, no.' And then I just blacked out again. . . . And I
remember kind of waking up and seeing my mom yelling and telling him to stop,
and—and I remember her leaving for a little while."

H.M. also recalled waking a second time after seeing Marler in her crotch and
she "kicked up to get [Marler] away, and—and then [she] was out again."

 Marler confessed that later in the day, around 8 or 9 p.m., "we tried again,"
Pam was upset, and Pam took H.M. to H.M.'s bed. Pam testified that H.M. did
not leave her parents' bedroom until after dark when Pam "was allowed" to
take H.M. to her room. H.M. recalled waking up in her bed with her mom with
her.
32
 Marler confessed that in the days surrounding the sexual abuse "[H.M.] missed
a couple of days of school." Pam testified that H.M. was out for about a week
because Marler had drugged her. H.M. testified: "I don't know exactly how
long [I was unconscious], but it had to of been at least three days that I was like
sleeping constantly, because I thought it was a Monday when it was a
Wednesday. My brother had told me when I woke up." T.M. remembered H.M.
missing a few days of school during the week of the sexual abuse.

On appeal Marler complains there was no direct evidence to support his
convictions of rape and aggravated indecent liberties with a child; however, a review of
the record indicates that it is likely there is no direct proof because his victim was
drugged and incoherent during his attacks. Further, the abuse was not reported until a few
months after it occurred, reducing the likelihood of physical evidence. Here, the specific
corroborated facts of the circumstantial evidence surrounding the crimes lend themselves
toward a trustworthy confession.

Other factors supporting the trustworthiness of Marler's confession are Marler
wrote the confession outside of the presence of law enforcement and then reviewed and
confirmed the confession with law enforcement the next day; the availability of the facts
or details contained in the confession from sources outside of Marler's personal
knowledge; Marler's age, education, experience, and mental health; and the confession
was made voluntarily and the conditions surrounding the confession were not coercive.

As to Marler's age, education, experience, and mental health, the prior panel of our
court held:

"Marler's date of birth is December 19, 1962. At trial, Marler testified that he was
an electrical engineer who designed and embedded microcontroller systems for Boeing
vendors. Prior to that time, he was in the Army and worked for U.S. Missile Command
33
on missile guidance systems. Marler owned his own business for 20 years. During his
competency evaluation, Marler told the evaluator that he had an IQ of 148. The evaluator
described Marler as follows:

"'He is an intelligent man, with a good memory and is able to think in
complicated ways and understand complicated concepts quite well. His memorization of
Bible verses clearly depicts this ability. His verbal skills were excellent and his ability to
think and reason were well [demonstrated]. His only issue in the exam was his propensity
to fabricate stories which he from time to time would contradict or correct if questioned.
This observation seemed related to a personality disorder, not a defect in mental ability.'"
Marler, 2013 WL 5870049, at *6.

Given the above, Marler's confession was trustworthy. Thus, the corpus delicti of
Marler's crimes was satisfied. Because Marler's corpus delicti claim is meritless, he
cannot show prejudice on the part of Shores, Pickering, or Spencer.

V. DID MARLER RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SPENCER
FAILED TO RAISE THAT SHORES FAILED TO TIMELY COMMUNICATE THE STATE'S
PLEA OFFER?

Next Marler argues that he received ineffective assistance by Spencer when
Spencer did not raise the issue that Shores was ineffective for failing to timely
communicate the State's plea offer to him. The State responds that Marler cannot
establish prejudice because the district court made a credibility determination and found
that Marler would not have pled.

The requirements for establishing ineffective assistance of counsel have been
discussed above, but we need not consider both prongs if Marler makes an insufficient
showing on one prong of the ineffective assistance of counsel inquiry. See Edgar v. State,
294 Kan. 828, 843, 283 P.3d 152 (2012).
34
Marler's brief contains lengthy facts surrounding this issue. However, his
argument essentially asks that we reweigh the evidence and assign credibility to
witnesses different than what the district court did, which is not permitted. See Llamas,
298 Kan. at 254.

At Marler's first 60-1507 hearing Marler announced, "I didn't do this crime, okay."
Marler boasted that he "could of took a plea deal" and he decided against it. He testified,
"I wouldn't do that because I didn't do it." At both the trial and at the evidentiary hearing
for his first 60-1507, he insisted on his innocence, that no crimes against H.M. ever
occurred, and that he would never accept a plea. Yet at the evidentiary hearing on his
second 60-1507 motion he stated otherwise. The district court explicitly found that
"Marler's testimony at his second 1507 hearing [was] not credible" and that Marler would
not have taken the plea. Because the district court did not find Marler credible, it held that
Spencer's representation of Marler was not deficient when he did not raise this issue in
Marler's first 60-1507 motion. Again, while the timeline surrounding the offer and
communication of the plea is murky, this is immaterial because the district court, in
assessing Marler's credibility and using his prior statements on the record, found that
Marler would not have taken any plea offer.

Substantial competent evidence supports the district court's finding that Marler
would not have accepted a plea deal. Therefore, Marler cannot show that he was
prejudiced by Shores' actions, and Spencer was not ineffective.

VI. DID MARLER RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SPENCER
FAILED TO RAISE THAT SHORES WAS INEFFECTIVE IN FAILING TO OBJECT TO
EVIDENCE OF MARLER'S PRIOR BAD ACTS?

Marler argues that Spencer was ineffective when he failed to assert that Shores
was ineffective for failing to object to evidence of Marler's prior bad acts—evidence that
35
he physically abused Pam, ran from law enforcement, and had legal pornography on his
computer. Marler complains this evidence was inadmissible prior bad acts evidence under
K.S.A. 60-455.

Under K.S.A. 2018 Supp. 60-455(a), "evidence that a person committed a crime or
civil wrong on a specified occasion, is inadmissible to prove such person's disposition to
commit crime or civil wrong as the basis for an inference that the person committed
another crime or civil wrong on another specified occasion."

Assuming without deciding that the evidence was wrongfully admitted, any error
was cured with a limiting jury instruction. The jury was instructed: "Evidence has been
admitted tending to prove that the defendant committed crimes other than the present
crimes charged. This evidence may be considered solely for the purpose of proving the
nature of the relationships within the Marler family." Under Strickland, 466 U.S. at 695,
"[t]he assessment of prejudice should proceed on the assumption that the decisionmaker
is reasonably, conscientiously, and impartially applying the standards that govern the
decision." Moreover, we presume that juries follow their instructions. State v. Kleypas,
305 Kan. 224, 279, 382 P.3d 373 (2016), cert. denied 137 S. Ct. 1381 (2017).

Because the jury was instructed to limit its use of the evidence, any deficient
performance would not have affected the outcome of the trial or the first 60-1507
proceeding. Marler cannot establish that he was prejudiced by Spencer's failure to raise
this issue.

VII. DID SPENCER FAIL TO THOROUGHLY INVESTIGATE THE CASE, INTERVIEW
WITNESSES, AND ADEQUATELY PREPARE FOR MARLER'S FIRST 60-1507 HEARING?

Next, Marler argues that Spencer failed to thoroughly investigate the case,
interview witnesses, and adequately prepare for Marler's first 60-1507 evidentiary
36
hearing, claiming three issues: (1) Spencer did not have Pam's tape-recorded interview,
which he alleged in Issue III was suppressed by the State; (2) Spencer did not interview
Marler's former sister-in-law; and (3) Spencer failed to call Shores' former legal assistant
to testify regarding Shores' prior drug use.

First, Marler argues that Spencer should have used Pam's interview, but he also
claims in Issue III of his appeal that this interview was suppressed by the State and
unavailable for use. As discussed in that issue, Pam's interview was far more inculpatory
than exculpatory, and there was no prejudice in any alleged failure by the State to
disclose this evidence. Therefore, any failure to use such highly inculpatory evidence
cannot be prejudicial. Additionally, if the evidence was truly suppressed by the State,
Marler does not make a clear argument how Spencer's performance should be deemed
deficient for not knowing of the interview.

Second, Marler argues that Spencer should have called Pam's sister, Shelley
Lampkin, to testify. Lampkin testified at Marler's second 60-1507 hearing that Marler
called her before his arrest and told her "he was going to tell a lie to the authorities to get
them involved, to get the kids out of the house due to Pam's drug use." Lampkin testified
Marler just mentioned telling a lie but she had no idea that Marler would confess to
sexually abusing H.M. But Lampkin's vague testimony of an unspecified lie does not
undermine the substantial corroboration of Marler's confession as discussed above. It
does not explain why H.M. recalled she "kicked up to get [Marler] away" while she was
drugged. Any failure to use this evidence was not deficient. Further, Marler does not
clearly explain how using Lampkin's testimony would have changed the outcome of the
60-1507 proceeding, thus we see no prejudice.

Third, Marler faults Spencer for not calling Shores' former legal assistant to
testify. However, this argument fails for the reasons set forth in Issue I. As the district
court concluded: "From the testimony of [Marler's former legal assistant] above, it
37
appears likely that Shores['] drug use eventually led to a dramatically worse deterioration
in Shores['] professional performance after the Marler trial."

Marler has failed to establish that Spencer was ineffective for failing to properly
investigate the case, interview witnesses, or adequately prepare for the 60-1507
evidentiary hearing.

VIII. WAS WELLS INEFFECTIVE FOR FAILING TO RAISE SPENCER'S INEFFECTIVENESS?

Marler argues that Wells was ineffective for failing to raise on appeal that Spencer
was ineffective. Succinctly stated, none of Marler's claims have been found to be
meritorious. Therefore, whatever Wells did or did not do in relation to the appeal of
Marler's first 60-1507 motion makes no difference.

IX. DID CUMULATIVE ERROR DEPRIVE MARLER OF EFFECTIVE REPRESENTATION IN
HIS CASE AS A WHOLE?

Finally, Marler argues that the cumulative error of his various attorneys at
different stages of the proceedings prejudiced him. However, because none of Marler's
claims have merit, Marler cannot establish a violation of his right to effective
representation of counsel by any of his attorneys. There is no cumulative error.

Affirmed.