Clay Center, KS - Criminal Defense Attorney, aggravated criminal sodomy

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,184

ZIAD K. KHALIL-ALSALAAMI,

Appellant,

v.

STATE OF KANSAS,

Appellee.

SYLLABUS BY THE COURT

1.

The Sixth Amendment to the United States Constitution guarantees the right to

effective assistance of counsel, and denial of the right can lead to reversal of a jury

verdict. Courts consider whether a reversible denial of the right occurred by applying a

two-prong test stated by the United States Supreme Court in Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A convicted defendant must first

establish deficient performance, by showing that counsel's representation fell below an

objective standard of reasonableness. Then, the defendant must show that the deficient

performance prejudiced the defense.

2.

After a full evidentiary hearing about an ineffective assistance of counsel claim

brought under K.S.A. 60-1507, an appellate court reviews a district court's findings of

fact and conclusions of law under a mixed standard of review. The appellate court

examines the record and determines whether substantial competent evidence supports the

district court's factual findings and determines whether those findings support the district

court's conclusions of law. The appellate court then reviews the conclusions of law de

novo.

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3.

A court considering whether ineffective assistance of counsel caused prejudice

must ask if a defendant has met the burden of showing a reasonable probability the result

of the proceeding would have been different but for counsel's deficient performance. The

ultimate focus of inquiry must be on the fundamental fairness of the proceedings and

whether, despite the strong presumption of reliability, the result of the proceedings is

unreliable because of a breakdown in the adversarial process counted on to produce just

results.

4.

On the undisputed testimony of counsel and the governing law as it has developed

at the time of counsel's representation of the defendant, counsel's failure to challenge

admission of the defendant's incriminating statements was deficient performance under

the first prong of Strickland.

5.

In this case, when criminal defense counsel's deficient performance enabled the

State to present one of the two pillars of its case to the jury, prejudice under the second

prong of Strickland has been established.

Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 235, 399 P.3d 264 (2017).

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed September 11, 2020. Judgment of

the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and

the case is remanded with directions.

Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and David L. Miller, of the

same firm, was with him on the briefs for appellant.

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Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Bethany C. Fields, deputy

county attorney, Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney,

and Derek Schmidt, attorney general, were with him on the briefs for appellee.

PER CURIAM: This appeal arises from Ziad K. Khalil-Alsalaami's convictions on

two counts of aggravated criminal sodomy. He was acquitted on a charge of rape. After

trial and an unsuccessful direct appeal, Khalil-Alsalaami filed a K.S.A. 60-1507 motion,

alleging ineffective assistance of trial and direct appeal counsel.

District Judge John F. Bosch denied Khalil-Alsalaami's motion, but a panel of our

Court of Appeals granted Khalil-Alsalaami relief. We accepted this case on the State's

petition for review of the Court of Appeals decision.

We affirm the Court of Appeals result, although we reach it via a different, less

complicated route. We reverse Khalil-Alsalaami's convictions and remand his case to the

district court for further proceedings because of trial counsel's decision to drop a pretrial

challenge to the admissibility of his client's incriminating statements and a later failure to

object when a journal entry describing the parties' stipulation to the voluntariness of those

statements was admitted at trial.

FACTUAL AND PROCEDURAL BACKGROUND

Khalil-Alsalaami had a party at his house in May 2010. Among the guests was 13-

year-old C.J. She had arrived at the party with her boyfriend, John Esquivel; his brother,

Robert; and Roger Safford.

According to C.J.'s side of the story, Safford pressured C.J. to have sex with

Khalil-Alsalaami in exchange for $40. Khalil-Alsalaami denies that he engaged in any of

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the sexual acts C.J. described and argues he was tricked into admitting certain of the acts

by law enforcement.

Investigation of C.J.'s allegations began after she told her mother of the party

about two days after it occurred. The State ultimately charged Khalil-Alsalaami with rape

and two counts of aggravated criminal sodomy.

While Khalil-Alsalaami was represented by Stephen Freed, the parties came

before District Judge Paul E. Miller for a Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774,

12 L. Ed. 2d 908 (1964), hearing on the voluntariness of several incriminating statements

Khalil-Alsalaami had made to police detectives during a 45-minute interrogation on the

day of his arrest. Khalil-Alsalaami admitted during the interrogation that he had engaged

in oral and anal sodomy with C.J.; he did not admit that he had engaged in vaginal

intercourse with C.J.

Detective Ryan Runyan testified on behalf of the State at the hearing. He admitted

that he knew Khalil-Alsalaami could not read English and that he therefore read a

Miranda advisory aloud at the beginning of the interrogation, although he did not do so

"word for word." Runyan further testified that Khalil-Alsalaami agreed to speak with the

detectives, signed the Miranda rights waiver form, and never asked to stop the interview.

In Runyan's view, Khalil-Alsalaami, whose first language is Arabic, could understand

what was being said during the interrogation.

Because Freed said he was still trying to secure an expert witness, the defense

portion of the Jackson v. Denno hearing was delayed.

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Khalil-Alsalaami then retained attorney Barry Clark. Clark, along with Jeremy

Platt, would represent Khalil-Alsalaami through the rest of pretrial proceedings, at trial,

and on direct appeal.

Rather than complete the Jackson v. Denno hearing, Clark entered into a

stipulation with the State that Khalil-Alsalaami's partial confession was knowing and

voluntary. The stipulation was memorialized through a journal entry, which read in

pertinent part:

"[T]he Defendant stipulates that his statements to law enforcement were knowing

and voluntarily given and he was not under any compulsion or no threats or promises

were made to him.

"THEREUPON, the Court, after reviewing the file and evidence presented,

listening to statements of counsel, and being fully advised in the premises, finds as

follows:

"1. The defendant's statements to Detectives Ryan Runyan and Sonia

Gregoire were voluntarily given and shall be admitted at trial."

The journal entry was signed by Judge Miller, the prosecutor, and Clark.

The State's case at trial relied upon a videotape and transcript of KhalilAlsalaami's incriminating statements, on C.J.'s account of events, and on expert testimony

about a DNA match between semen found on the inside waistband and drawstring of a

pair of shorts worn by C.J. on the night of the party and a known sample collected from

Khalil-Alsalaami once he was arrested.

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At trial the defense asserted that Khalil-Alsalaami had been tricked into falsely

confessing to oral and anal sodomy with C.J. on his bed, because Runyan did not disclose

C.J.'s age and minimized any legal problem that would arise from Khalil-Alsalaami

admitting that he engaged in consensual sexual activity with an adult woman who was

not his wife. In defense counsel's view, as expressed at trial, regardless of whether KhalilAlsalaami's statements qualified as voluntary, the jury should understand that he did not

actually confess to behavior he understood to be a crime; Khalil-Alsalaami thought he

was merely falsely admitting to engaging in a noncriminal extramarital affair with an

adult female.

Defense counsel also emphasized, throughout trial, that C.J.'s account of events

changed from one not including anal sodomy to one including anal sodomy; that law

enforcement had failed to follow up on specific, important lines of inquiry and witnesses;

that Runyan had failed to audio record two of his discussions with Khalil-Alsalaami in

which, according to the defense, Runyan pressured Khalil-Alsalaami and put words in his

mouth; and that the Kansas Bureau of Investigation had failed to test or to compare

forensic test results on certain items worn by C.J. or seized from Khalil-Alsalaami's

bedroom. The defense also advanced a theory that the DNA found on C.J.'s shorts could

have been transferred from Khalil-Alsalaami's bedding, because he had engaged in sex

with a girlfriend in his bed earlier in the day of the party and C.J. had admitted being on

the bed with her boyfriend during the party.

During Khalil-Alsalaami's cross-examination at trial, the prosecutor moved to

admit the stipulation to the voluntariness of his incriminating statements to detectives.

Defense counsel did not object. Khalil-Alsalaami testified that he was unfamiliar with the

journal entry recording the stipulation. But the prosecutor used it to impeach his direct

testimony that he had falsely confessed because he had been confused, pressured, and set

up by Runyan's use of a minimization interrogation technique. Khalil-Alsalaami agreed

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with the prosecutor that the journal entry recited that his statement was knowingly and

voluntarily made. The prosecutor discussed the journal entry and Khalil-Alsalaami's

testimony about it again during closing arguments.

The jury acquitted Khalil-Alsalaami of rape and convicted him on the two counts

of aggravated criminal sodomy. That is, it acquitted Khalil-Alsalaami on the one count

based on behavior he had denied engaging in at the time of his interrogation, and it

convicted on the two counts based on behavior he had admitted engaging in at the time of

his interrogation.

On direct appeal, Khalil-Alsalaami's counsel did not challenge the admission of

his incriminating statements or the admission of the journal entry about the voluntariness

of the statements. Other appellate arguments were rejected, and a panel of our Court of

Appeals affirmed Khalil-Alsalaami's convictions and sentence. State v. Khalil-Alsalaami,

No. 106,610, 2012 WL 5869581, at *1 (Kan. App. 2012) (unpublished opinion).

Khalil-Alsalaami then filed the K.S.A. 60-1507 motion underlying this appeal. He

alleged that trial and appellate counsel provided ineffective assistance in 11 ways,

including the following:

"(c) The Petitioner was denied the effective assistance of counsel in that trial counsel failed to

investigate and file a motion to suppress challenging the voluntariness of the Petitioner's

statement to law enforcement and, instead, stipulated that the Petitioner's statement was

voluntary.

"(d) The Petitioner was denied the effective assistance of counsel in that trial counsel

stipulated that the Petitioner's custodial statement to law enforcement was voluntary, knowing,

and intelligent, and in failing to object when the stipulation was admitted as a State's exhibit

during trial."

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District Judge John F. Bosch held an evidentiary hearing on Khalil-Alsalaami's

motion.

During Clark's testimony at the hearing, he admitted he never challenged the

voluntariness of Khalil-Alsalaami's incriminating statements even though his client

sometimes had difficulty understanding what Runyan was saying or asking him during

the interrogation. Clark testified that he looked at factors he thought were "germane to the

issue of voluntariness of confessions" and decided not to file a motion to suppress or

complete the Jackson v. Denno hearing begun by his predecessor. Clark thought an

argument that the statements were involuntary lacked merit, and he did not want to lose

credibility in the eyes of the district judge.

Clark said he was unsure about whether Khalil-Alsalaami understood the Miranda

form, and he acknowledged that Runyan could be heard on the interrogation recording

saying that Khalil-Alsalaami cannot read English. Clark also testified that he did not

challenge Runyan's failure to read aloud the portions of the waiver of Miranda rights

form that asked, "Do you understand each of these rights I have explained to you[?]" and

"Having these rights in mind, do you wish to talk to us now?" He said he was not

concerned with Runyan's less-than-complete reading of the Miranda form because

Runyan "explained each of the rights to [Khalil-Alsalaami] and asked him if he was

willing to answer questions."

Clark agreed during his testimony that the pillars of the State's case were his

client's incriminating statements and the DNA evidence. Thus, attacking the reliability of

the statements was a key part of the defense, and part of the trial strategy was to show the

jury that Khalil-Alsalaami was tricked into making a false confession. Clark admitted that

it was possible he had not shown his client the journal entry recording the parties'

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stipulation before trial and acknowledged that it did not bear Khalil-Alsalaami's

signature. Yet he also said he had entered into the stipulation only after discussing its

subject matter with Khalil-Alsalaami.

Clark's testimony on the damage done to Khalil-Alsalaami's defense by the

admission of the journal entry at trial was inconsistent. He said that he did not believe the

admission harmed the defense, because whether the statements were voluntary was not in

issue; the issue was whether Khalil-Alsalaami was tricked into voluntarily confessing.

But he admitted that he "should have objected" to the journal entry's admission and that

he never intended for it to become a prosecution trial exhibit.

Platt testified at the 60-1507 hearing as well. He said that Khalil-Alsalaami

participated in discussions with counsel about the incriminating statements made to the

detectives. Platt confirmed that Khalil-Alsalaami "[w]as able to explain whether or not he

felt there were promises" made by Runyan. Platt could not recall Khalil-Alsalaami

asserting that such promises or threats were made. Platt agreed with Clark that there was

no basis to dispute the voluntariness of the statements and that Khalil-Alsalaami was

involved in that discussion too. Further, Platt said that he could not "recall [KhalilAlsalaami] specifically" saying he agreed with counsel not to file a Miranda-based

motion to suppress or to abandon the Jackson v. Denno hearing on voluntariness, "but we

obviously discussed it with him and he never objected." Platt nevertheless conceded that

the admission of Khalil-Alsalaami's statements was "very critical" to the case. After

being confronted with his earlier statement in a deposition, Platt also admitted that he and

Clark declined in part to challenge admission of Khalil-Alsalaami's statements in part

because they "did not want to piss off Judge Miller," and did not "want to curry bad favor

with the judge on a motion that" they believed to be meritless.

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Khalil-Alsalaami also testified at the hearing on his K.S.A. 60-1507 motion. He

repeated his statement at trial that he had never seen the stipulation entered into by his

counsel, and he said that counsel had never asked him about it or discussed it with him

pretrial. As for the underlying interrogation, he testified that there were parts of it he

understood and parts he did not. For example, he said, he did not understand the Miranda

rights Runyan had read to him. Khalil-Alsalaami also testified that he knew police in his

native country of Iraq tortured people until they confessed.

Judge Bosch listed several numbered findings of fact in a written ruling denying

Khalil-Alsalaami's K.S.A. 60-1507 motion. He also recited additional material that may

have been intended to be factual findings, some dependent on credibility judgments.

Those portions of the ruling the judge evidently believed to be related to the performance

of Clark and Platt on the ultimate admission of Khalil-Alsalaami's incriminating

statements adopted the State's written response to the K.S.A. 60-1507 motion, including

the following:

● Clark listened to the defendant's statement and viewed the videotape of his

interrogation.

● Clark reviewed the police reports.

● Clark gave the police reports to the defendant.

● Clark discussed the circumstances leading up to the incriminating

statements with the defendant.

● Clark examined the factors germane to voluntariness and Miranda waiver.

● Clark weighed the factors for and against voluntariness.

● Based on his investigation and research, Clark concluded that the defendant

understood his Miranda rights, that his statement was voluntary, and that a

challenge would be meritless.

● Clark believed the decision "paid dividends."

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● Clark, Platt, and the defendant discussed the merits of challenging the

voluntariness of his statement; the defendant was aware of the decision not

to pursue a challenge; and the defendant did not object to the decision.

● The defendant agreed with the decision.

● At trial, the defendant admitted on cross-examination that he was not

threatened and promises were not made to him to induce his incriminating

statements.

With this foundation in place, on the two allegations of ineffective trial counsel

that we regard as dispositive today, Judge Bosch concluded as a matter of law:

"Mr. Clark's decision to not challenge the voluntariness of the defendant's

statement was an informed decision based on his professional judgment after a reasonable

and thorough investigation . . . . A review of the facts readily demonstrates that the

petitioner's statement to Detective Runyan was the product of his free and independent

will. Thus, even if Mr. Clark had moved to suppress the petitioner's statement, it would

have been unsuccessful. As a result, the petitioner has failed to show prejudice as a result

of Mr. Clark's decision not to challenge the voluntariness of the statement and his claim

of ineffective assistance of counsel must also fail.

. . . .

". . .Trial counsel can be ineffective when he stipulates to facts that clearly

undercut his defense. But that is not what occurred in the present case. As explained by

Mr. Clark, the defense was not that the statement was involuntary. The decision to not

challenge the statement did not undercut the trial defense.

"Finally, the petitioner argues that Mr. Clark was ineffective when he failed to

object to the State offering the journal entry of the Jackson v. Denno hearing. Mr. Clark

admits in hindsight that he should have objected to the introduction of the journal entry

. . . . But simply because Mr. Clark now believes he should have objected does not

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necessarily mean that the first prong of the Strickland standard [requiring deficient

performance] has been satisfied. Rather, the test requires the petitioner to show that

counsel's representation fell below an objective standard of reasonableness, considering

all the circumstances of the case. It is not what Mr. Clark now believes, but rather what

was then objectively reasonable. In light of the petitioner's testimony [that his statements

were voluntarily given] immediately preceding the admission of the journal entry, it was

not objectively unreasonable for Mr. Clark to not object.

". . . Nothing prevented the petitioner from contesting the circumstances

surrounding the making of the confession which were fully covered at trial.

"Even if Mr. Clark's failure to object was unreasonable . . . , [t]he petitioner could

not be prejudiced by the admission of a document that establishes what the petitioner had

just admitted in front of the jury. The journal entry established no more than what the

petition had just admitted. Even if it was error to admit the journal entry, it was harmless

error, and the petitioner was not prejudiced from admission of the same."



Khalil-Alsalaami appealed Judge Bosch's decision, and a panel of our Court of

Appeals unanimously reversed and remanded. The panel ruled that Khalil-Alsalaami's

counsel had not met the constitutional standard for effective assistance of trial or

appellate counsel and that, but for counsel's deficient performance, there was a reasonable

probability that the outcome of the proceeding would have been different. KhalilAlsalaami v. State, 54 Kan. App. 2d 235, 246-47, 399 P.3d 264 (2017) (citing Miller v.

State, 298 Kan. 921, 934, 318 P.3d 155 [2014]) ("reasonable probability" means

probability sufficient to undermine confidence in verdict).

Initially, the panel focused on one of Khalil-Alsalaami's allegations of

ineffectiveness of trial counsel we need not and do not reach today—the failure of Clark

and Platt to obtain an interpreter at trial to ensure the exercise of their client's

constitutional rights to confront the witnesses against him and to be present at every

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critical stage of the proceeding. Again, Khalil-Alsalaami's first language is Arabic.

Among other things, the panel ruled that factual findings made by Judge Bosch on the

way to ruling in favor of the State on this issue were unsupported by substantial

competent evidence, particularly in view of contrary expert testimony on KhalilAlsalaami's limited understanding of English presented at the hearing on his K.S.A. 60-

1507 motion. The panel also stated that prejudice from counsel's error should be

presumed, relying on State v. Calderon, 270 Kan. 241, 246, 13 P.3d 871 (2000), and

K.S.A. 75-4351 ("qualified interpreter shall be appointed . . . for persons whose primary

language is one other than English"). 54 Kan. App. 2d at 244-45. But the panel

continued: "Although we could end our analysis here and reverse . . . , there were other

significant errors committed by trial counsel that further bolster the ultimate result here.

We choose to address those as well." 54 Kan. App. 2d at 246.

The panel then catalogued several other infirmities it detected in counsel's

performance at trial and on appeal, which included failure to challenge admissibility of

Khalil-Alsalaami's incriminating statements by completing the Jackson v. Denno hearing

begun by Freed or by pursuing a defense motion to suppress, as well as stipulation to the

voluntariness of Khalil-Alsalaami's incriminating statements.

The panel summarized in a section on the cumulative error doctrine at the end of

its opinion:

"We find that the number of errors is substantial, and even if the State could successfully

argue that the impact that any one of them had on the trial was insignificant, we cannot

ignore the fact that the accumulation of these errors impacted [Khalil-Alsalaami's] ability

to receive a fair trial. The errors went to the heart of Clark's defense strategy." 54 Kan.

App. 2d at 262.

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The State filed a petition for review asserting that the Court of Appeals erred in

holding that Khalil-Alsalaami received ineffective assistance of counsel on several

grounds and attacking the panel's cumulative error conclusion based on what the State

believed was flawed analysis of individual allegations of deficient performance.

DISCUSSION

The standards governing our review of cases in which a criminal defendant alleges

ineffective assistance of counsel are often recited, including very recently in Balbirnie v.

State:

"The Sixth Amendment to the United States Constitution guarantees the right to

effective assistance of counsel, and denial of the right can lead to reversal of a jury

verdict. Courts consider whether a reversible denial of the right occurred by applying a

two-prong test stated by the United States Supreme Court in Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A convicted defendant must first

establish deficient performance, by showing that counsel's representation fell below an

objective standard of reasonableness. Then, the defendant must show that the deficient

performance prejudiced the defense.

"After a full evidentiary hearing about an ineffective assistance of counsel claim

brought under K.S.A. 60-1507, an appellate court reviews a district court's findings of

fact and conclusions of law under a mixed standard of review. The appellate court

examines the record and determines whether substantial competent evidence supports the

district court's factual findings and determines whether those findings support the district

court's conclusions of law. The appellate court then reviews the conclusions of law de

novo.

"A court considering whether ineffective assistance of counsel caused prejudice

must ask if a defendant has met the burden of showing a reasonable probability the result

of the proceeding would have been different but for counsel's deficient performance. The

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ultimate focus of inquiry must be on the fundamental fairness of the proceedings and

whether, despite the strong presumption of reliability, the result of the proceedings is

unreliable because of a breakdown in the adversarial process counted on to produce just

results." Balbirnie, 311 Kan. ___, Syl. ¶¶ 1, 2, 3, 468 P.3d 334 (2020).

Further, a reviewing court is prohibited from reweighing the evidence, evaluating

the credibility of witnesses, or resolving factual conflicts. State v. Harris, 284 Kan. 560,

Syl. ¶ 9, 162 P.3d 28 (2007). Substantial competent evidence is "evidence is that which

possesses both relevance and substance and which furnishes a substantial basis in fact

from which the issues can reasonably be resolved." State v. Sharp, 289 Kan. 72, 88, 210

P.3d 590 (2009).

As the United States Supreme Court has outlined, when judging trial counsel's

performance, the "inquiry must be whether counsel's assistance was reasonable

considering all the circumstances." Strickland v. Washington, 466 U.S. 668, 688, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). "No particular set of detailed rules for counsel's

conduct can satisfactorily take account of the variety of circumstances faced by defense

counsel or the range of legitimate decisions regarding how best to represent a criminal

defendant." 466 U.S. at 688-89. After a thorough investigation of the facts, strategic

decisions made by counsel are "virtually unchallengeable," unless "'counsel lacks the

information to make an informed decision due to inadequacies of his or her

investigation.'" Sola-Morales v. State, 300 Kan. 875, 887, 335 P.3d 1162 (2014) (quoting

State v. Gonzales, 289 Kan. 351, 358, 212 P.3d 215 [2009]). "The ultimate focus of

inquiry must be on the fundamental fairness of the proceeding whose result is being

challenged." Strickland, 466 U.S. at 696.

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Deficient Performance

Were we to follow the Court of Appeals panel's lead in this case, resolution of the

interpreter issue would require us to address several novel questions for this court. First,

is the language in K.S.A. 75-4351 mandatory or merely directory when it provides that

interpreters "shall" be provided when a suspect's or defendant's first language is not

English? See State v. Ahmedin, No. 105,378, 2012 WL 1919925, at *9 (Kan. App. 2012)

(unpublished opinion). Second, if the statute is mandatory, can the right it bestows on a

criminal defendant be waived, and, if so, how? See also State v. Pham, 281 Kan. 1227,

136 P.3d 919 (2006) (direct appeal holding admission of statements made during

interrogation without interpreter not error; defendant had refused interpreter when asked

if he wanted one present for questioning). Third, can counsel's failure to challenge lack of

an interpreter during a client's interrogation or failure to seek an interpreter at trial ever

qualify as ineffective assistance, and, if so, under what circumstances? Fourth, if

ineffective assistance is shown on an interpreter issue, is the error to be classified as

structural error that is automatically reversible, or does it demand prejudice analysis

under Strickland? See Weaver v. Massachusetts, 582 U.S. ___, 137 S. Ct. 1899, 1911-12,

198 L. Ed. 2d 420 (2017) (prejudice analysis required when otherwise structural public

trial challenge arises on collateral attack). Among other things, the last of these questions

would demand our evaluation of the staying power of this court's structural error holding

in the direct appeal that was before us in Calderon, 270 Kan. at 251-54. A Court of

Appeals panel has since attempted to distinguish that holding in State v. Dosal, No.

89,436, 2004 WL 795898, at *1 (Kan. App. 2004) (unpublished opinion).

But, as mentioned above, we are convinced that there is a more straightforward

path to resolution of this case. It means we need not answer these questions. It also means

we need not assess whether, as the State insists, the Court of Appeals panel exceeded the

limitations on its appellate oversight when it examined the entire record and concluded

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that Judge Bosch lacked substantial competent evidence to support his fact-finding or his

conclusion that Khalil-Alsalaami possessed adequate English proficiency to proceed to

trial without an interpreter.

Instead, we can merely accept defense counsel's uncontested testimony on the

contours of the chosen trial strategy, validated by the record of Clark's and Platt's

performance at trial. Clark was very clear both at trial and at the hearing on the motion

underlying this appeal. His aim, with Platt's help, was to persuade the jury that his client

was tricked into falsely incriminating himself by a law enforcement officer who withheld

critical information—information that would have enabled Khalil-Alsalaami to determine

before confessing whether the behaviors he was admitting qualified as Kansas crimes.

This is our problem: Even accepting that this strategy was consciously pursued, it

makes little to no legal or common sense. As such, it does not qualify as strategy at all,

much less a reasonable one, under Strickland.

From a legal perspective, Khalil-Alsalaami was not facing life in prison because

he was accused of knowing he was breaking the law when he had sex with C.J. He was

facing life in prison because he was accused of having sex with C.J., period. His

knowledge or lack of knowledge of Kansas law was simply irrelevant to guilt or

innocence.

Perhaps more important, Khalil-Alsalaami's knowledge or lack of knowledge of

Kansas law bore no logical relationship to whether he was lying or telling the truth when

he admitted to the conduct underlying the two sodomy counts. When it comes to sexual

activity with a 13-year-old girl, a confession obtained by trickery is still a confession. The

jury demonstrated its keen understanding of this reality with its split verdict—convicting

on the crimes Khalil-Alsalaami admitted to and acquitting on the crime he denied.

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When defense counsel is confronted with a situation in which his or her client has

already admitted to conduct that, as a matter of law, makes the client guilty of a charged

crime, to be effective, counsel must flyspeck the circumstances that led to the

incriminating statements and, if factually and legally supported, challenge the State's

effort to place the statements before the jury. The ideal time to do this in the first instance

is pretrial. If unsuccessful pretrial, effective counsel must also challenge admission of the

incriminating statements through objection at trial. See K.S.A. 60-404. This objection

gives the trial judge a chance to reconsider; it also preserves the admissibility issue for

appeal.

The two K.S.A. 60-1507 motion allegations we focus on deal with the failure of

Clark and Platt to challenge admission of Khalil-Alsalaami's incriminating statements

pretrial or during trial, including failure to object to admission of the stipulation that the

statements were voluntary and knowing before the jury. These challenges are intertwined

and we examine them together. In order for us to rule that Clark and Platt provided

ineffective assistance of counsel, we analyze whether they would have had anything to

work with in mounting such challenges.

Admission of a criminal defendant's incriminating statements, among other things,

may be challenged as involuntary under the Fifth Amendment, or as obtained in violation

of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), or both.

See State v. Swindler, 296 Kan. 670, 677-78, 294 P.3d 308 (2013). They may also be

challenged as obtained in violation of an independent statutory right of the suspect, such

as a right to have an interpreter present during interrogation.

Clark and Platt freely admit they made none of these arguments. Instead,

according to their own testimony, they dropped Freed's Jackson v. Denno contest,

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pursued no motion to suppress of their own, and stipulated that their client's confession to

the conduct charged in two of three counts was knowing and voluntary. They did this

because they did not think Freed's voluntariness challenge had merit because KhalilAlsalaami had told them he was neither threatened nor promised any benefit before

confessing. In addition, in Platt's vernacular, they did not want to "piss off" the judge who

would try the case. Clark testified that he thought this approach paid off when the judge

ruled in the defense's favor on a close issue under the rape shield statute, allowing

evidence that C.J. was observed "making out" with her boyfriend after the alleged crimes.

See K.S.A. 2019 Supp. 21-5502.

There are several ways in which counsel's assessment of and reaction to the

information in their possession was legally unsound, and we hold today that they and

Judge Bosch should have recognized as much.

First, as the Court of Appeals put it, the voluntariness of Khalil-Alsalaami's

confession was not a "foregone conclusion." 54 Kan. App. 2d at 253.

Voluntariness of a confession is a mixed question of fact and law. See State v.

Sesmas, 311 Kan. 267, 275, 459 P.3d 1265 (2020). It does not rise and fall solely on a

suspect's subjective perception of the existence of a threat or promise. And counsel's

decision not to challenge voluntariness is not insulated by the fact that he or she obtains

his lay client's consent not to contest the issue.

To determine whether a statement is voluntary, courts evaluate the totality of the

circumstances including: "the duration and manner of the interrogation; the ability of the

accused on request to communicate with the outside world; the accused's age, intellect,

and background; and the fairness of the officers in conducting the interrogation." State v.

Swanigan, 279 Kan. 18, Syl. ¶ 2, 106 P.3d 39 (2005). Analysis of the suspect's English

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proficiency also should be considered. State v. Garcia, 243 Kan. 662, Syl. ¶ 8, 763 P.2d

585 (1988), disapproved of on other grounds by State v. Grissom, 251 Kan. 851, 840

P.2d 1142 (1992). Ultimately, "[t]he essential inquiry in determining the voluntariness of

a statement is whether the statement was the product of the free and independent will of

the accused." Swanigan, 279 Kan. 18, Syl. ¶ 2.

Clark testified that he evaluated these factors in deciding to forego completion of

Freed's Jackson v. Denno hearing and filing of a defense motion to suppress, but this

blanket statement, adopted and embraced by Judge Bosch, conflicts with his other, more

factor-focused testimony in the 60-1507 hearing. Those passages in the record

demonstrate that Clark was aware that three of the five voluntariness factors this court

has enumerated would have cut in favor of the defense.

Clark knew, for example, that Khalil-Alsalaami's background did not necessarily

prepare him for the American justice system. He believed his client had been resident in

the United States "[p]erhaps a year and a half." Clark not only knew of grounds on which

to attack the fairness of the interrogation; his "trial strategy" effectively gambled the

entire case on the unfairness of Runyan's employment of a minimization technique

designed to trick Khalil-Alsalaami into confessing to conduct he did not know was

criminal. On English proficiency, Clark knew that Runyan said during the interrogation

that Khalil-Alsalaami could not read English, and Clark could observe for himself that

Khalil-Alsalaami could not understand some spoken English. He admitted during the 60-

1507 hearing that there were words used in his client's interrogation that KhalilAlsalaami could not understand.

Clark and Platt also clearly had a Miranda-based arrow in their pretrial quiver.

Clark knew that Runyan had given Khalil-Alsalaami something less than a "word-forword" recitation of his Miranda rights. Clark testified that he had watched the videotape

21

of the interrogation. Without obtaining any independent evaluation of his client's

language ability, which did not "occur" to him, Clark "believed" that his client could

understand the oral Miranda warnings given "pretty quickly" but he did not "know" if he

could. He did know that Runyan had not read the waiver of rights portion of the usual

Miranda form to Khalil-Alsalaami. He admitted that Runyan never asked his client

whether he wanted to give up his right to have a lawyer present for questioning and that

Khalil-Alsalaami never said that he wanted to give up his rights. Any waiver of Miranda

rights would have to have been implied, a question for a judge that hears a motion to

suppress.

Clark and Platt might also have challenged the State's planned admission of

Khalil-Alsalaami's incriminating statements pretrial because there was no interpreter

appointed to assist their client during interrogation, and he was not asked whether he

wanted to waive such an appointment under K.S.A. 75-4351. Clark acknowledged during

his testimony at the K.S.A. 60-1507 hearing that he had been aware of the interpreter

statute at the time he represented Khalil-Alsalaami and believed it to be directory rather

than mandatory. However, he did no research to determine if he was correct. In fact, as

outlined above, the statute was and is open to interpretation by this court. Clark also

admitted during his testimony that the plain language of the statute, for which this court

has exhibited a deep affection, see State v. Ballou, 310 Kan. 591, 606, 448 P.3d 479

(2019), included "shall" and did not mention the possibility of a waiver.

Finally, we must comment briefly on counsel's expressed intention to avoid

angering the trial judge by aborting the Jackson v. Denno hearing and avoiding pursuit of

a motion to suppress. We understand that judges are human and that experienced defense

counsel must size up and react to any individual judge's—or collective jury's—apparent

patience for arguments that may or may not be successful. But, here, counsel professed to

believe that their abandonment of their client's challenge to admission of his confession

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might mean that Judge Miller would grant them what amounted to a potentially

undeserved favor on another, later legal position. Specifically, they believed the judge

ultimately demonstrated his appreciation of their forbearance on the confession challenge

when he accepted their argument for exception to an evidence bar under the rape shield

statute. This calculus bothers us for two reasons. First, in a he said-she said sex crime

case, especially one involving an alleged victim who is 13 years old, a confession from

the defendant is one of the strongest pieces of evidence the State can possess. In fact, it

can produce a conviction with no other support. It speaks far more loudly to a jury than

the alleged sexual abuse victim's tangential and legal sexual conduct with an age peer.

Second, in our courts, judges are charged with evaluating the merits of each legal

argument presented by a party without fear or favor, and without regard for their

affection for or patience with counsel representing that party. In other words, Judge

Miller's oath forbade him from engaging in the kind of cynical tit-for-tat counsel testified

that they expected from him. We cannot encourage this view of how judges operate by

endorsing it as the basis of an acceptable strategy under the first prong of Strickland.

In sum, we do not share Judge Bosch's certainty that dispensing with a challenge

to admission of Khalil-Alsalaami's partial confession was a necessary component of a

legally or logically supported trial strategy or that any such challenge would have been

hopelessly futile. Quite the opposite. On the undisputed testimony of Clark and Platt

under the governing law as it had developed at that time, we hold that Khalil-Alsalaami

received deficient representation pretrial and at trial.

Prejudice

We need not spend much time on the second prong of Strickland in this particular

case.

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Given Clark's admission during his testimony at the hearing on Khalil-Alsalaami's

K.S.A. 60-1507 motion that the incriminating statements he and Platt failed to challenge

were one of the two pillars of the State's case, we have no trouble in ruling that prejudice

occurred. As Strickland makes clear, we are concerned with fundamental fairness and

whether our confidence in the outcome of the prosecution has been undermined by

counsel's deficient performance. Strickland, 466 U.S. at 696. Especially when we

consider the jury's split verdict, we are persuaded there is a reasonable probability that

suppression of Khalil-Alsalaami's confession would have led to acquittal on all three

counts. See State v. Overstreet, 288 Kan. 1, 25-26, 200 P.3d 427 (2009) (trial counsel's

failure to locate, question, and prepare witnesses for trial was ineffective assistance of

counsel where primary theory of defense relied on those witnesses' testimony and jury

clearly relied on one such witness' testimony to reach verdict). We know that the other

pillar of the State's case, the DNA evidence for which the defense had a plausible

explanation, did not carry the day alone on the rape count.

For all of the reasons explained above, we affirm the judgment of the Court of

Appeals panel reversing Ziad K. Khalil-Alsalaami's convictions and remanding this case for further proceedings in the district court.