State v. Staten

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,305

STATE OF KANSAS,
Appellee,

v.

MICHAEL STATEN,
Appellant.

SYLLABUS BY THE COURT

1.
Once a defendant properly asserts a self-defense affirmative defense, the State
must disprove that defense beyond a reasonable doubt.

2.
K.S.A. 2015 Supp. 21-5108(c) codifies the caselaw requirements of the State's
burden of proof in disproving self-defense.

3.
The adoption of K.S.A. 2015 Supp. 21-5108(c) did not alter the law in Kansas
concerning the State's burden of proof, and it did not create a new element that the State
must prove when charging a crime. Self-defense remains a rebuttable defense to certain
crimes.

4.
When a defendant articulates a defense of self-defense, it is error not to instruct
the jury that the State's burden of proof does not shift to the defendant.

1
5.
When a party fails to object to or request a jury instruction, appellate review is
limited to a determination of whether the instruction was clearly erroneous.

6.
A defendant seeking substitute counsel must show "justifiable dissatisfaction" with
current counsel, which may be demonstrated by showing a conflict of interest, an
irreconcilable disagreement, or a complete breakdown in communication between
counsel and the defendant.

7.
A defendant's articulated statement of attorney dissatisfaction triggers a duty on
the part of the court to inquire into potential conflicts of interest.

8.
A trial court's duty of inquiry into a potential conflict of interest between an
attorney and the attorney's client may result in three types of errors, each of which is
reviewed for an abuse of discretion. The first type of error occurs when a district court
becomes aware of a potential conflict of interest but fails to conduct an inquiry. Such a
failure constitutes an error of law, that is, a failure to follow the law and fulfill a legal
duty. The second type of error occurs when a district court conducts an inquiry but fails
to do so in an appropriate manner. An appropriate inquiry requires fully investigating
both the basis for the defendant's dissatisfaction with counsel and the facts necessary for
determining whether the dissatisfaction justifies appointing new counsel. The third type
of error may occur when a district court conducts an appropriate inquiry but fails to make
a decision that is reasonable in light of the facts that come to the fore.

2
 Review of the judgment of the Court of Appeals in an unpublished opinion filed January 23,
2015. Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed August 12, 2016.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and
Rebecca L. Kurz, of The Kurz Law Office, LLC, of Mission, was on the brief for appellant.

Jennifer S. Tatum, assistant district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Michael Staten was convicted by a jury of one count of aggravated
battery. The Court of Appeals affirmed his conviction, and we granted review.

FACTS

Staten and Yvonne Williamson shared an apartment in Wyandotte County. In the
early morning of July 22, 2011, the two engaged in an altercation that left Williamson
severely injured. Witnesses disagreed on the circumstances leading up to the altercation,
resulting in two distinct narratives, which we set out below.

Williamson and other witnesses recalled the following sequence of the events.

Williamson testified that on July 21, she got off work around 9 p.m. and went
home to cook dinner. Staten was already home, and they got into an argument.
Williamson decided to leave and walk to a nearby liquor store in order to keep the
argument from escalating. Upon returning home with her purchase, the argument became

3
more heated, and she again left, this time to visit a friend, where she talked, watched
television, drank some brandy, smoked some marijuana, and consumed some cocaine.

Early the next morning, around 1:30 a.m., she returned to her apartment, feeling
anxious and anticipating a continued argument with Staten. When she arrived, Staten was
angry and had been drinking. He told her to get her belongings and leave. She packed her
clothes, and he threw them out onto the back porch. While she was putting her clothes in
her car, he attempted to lock her out of the house. He came outside about 20 minutes later
and persuaded her to return to the apartment.

Once inside, they began to argue again. Staten grabbed her keys, and she called
him a "bitch." He hit her in the face with the keys, and then he pulled her into the
bathroom, where he began beating her so hard that she started to bleed profusely. When
he grabbed her by the hair, she bit him in an attempt to make him release her, and he put
his arm around her neck in a chokehold. He informed her that he was going to kill her
and then turn himself in to authorities in the morning. He finally released her when he got
up to get something, and she ran outside and shouted for help.

Staten followed her outside and started swinging a stick at her. The stick had a nail
protruding from one end. As she was trying to protect herself from the blows, one of her
knuckles was broken. After he had hit her several times with the stick and his fist, she fell
to the ground. He continued to hit her and kick her and told her that he would kill her,
that she did not deserve to live, and that nobody would want her when he was through
with her. She lay still until an ambulance arrived.

She was hospitalized for 4 days. In addition to receiving scars and bruises, she
suffered a puncture wound near her lung, and she eventually received surgery for an

4
injury to one eye. She denied having threatened or attacked Staten and testified that she
bit him only after he grabbed her hair.

A neighbor, Emmanuel Rivera, testified that he was awakened by his dog barking
and looked out his apartment window to see Staten "beating the crap out of a woman."
He reported that Staten was hitting the woman so hard with a stick that the stick broke
and part of it flew away some distance. He saw Staten continue to hit her with the broken
stick, then kick her, and then drag her around on the ground. In Rivera's opinion, it
appeared that Staten was hitting and kicking the woman so hard that he was trying to kill
her. Rivera shouted to him that he should stop or Rivera would call the police. Staten hit
the woman a few more times and then threw the stick into a neighbor's yard. Rivera never
saw the woman attack or attempt to hit Staten; she lacked the strength to do that, and she
was unable to defend herself. While the woman screamed for help, Staten called her a
"whore" and told her he was going to kill her. When emergency vehicles approached,
Rivera saw Staten go back inside.

Edward Miller, a neighbor and acquaintance of Staten and Williamson, spent the
evening of July 22 hanging out with Staten and a third man outside the apartment. They
listened to music and waited for Williamson to return home. Around midnight, the three
parted company and went into their respective apartments. Later, Miller's fiancé woke
him and told him he needed to go get Staten. Going outside, Miller heard a lot of yelling
and saw Williamson lying in the middle of the parking lot. She was bloody but speaking
in a normal voice. Staten was shouting that "she deserved it." Miller pulled Staten away
from Williamson and tried to stay between them. Staten went back inside his apartment,
and Miller stayed outside until the police and ambulance arrived.

Miller's fiancé, Nicole Vaughn, also witnessed some of the events. After hearing
some noise in the parking lot, she looked out her apartment window and saw Staten with
5
his hand raised as if he was preparing to strike Williamson. She woke Miller up, ran
downstairs, and called the police. Williamson was seated or lying "helpless" on the
ground, and Staten was standing over her. Vaughn saw no aggressive behavior on
Williamson's part. Instead, she watched Staten kick Williamson and hit her several times,
either with his fist or with a stick with a sharp object on the end. She also heard Staten
say, "[T]his bitch deserves to die." After Staten returned to his apartment, Vaughn walked
over to Williamson, who was unrecognizable because there was so much blood and
because her hair was matted to her head and her face was so swollen.

Staten testified to a different version of the events and subsequent altercation.

On the evening of July 21, Staten saw another man escorting Williamson home
across the parking lot. When she arrived back in the apartment, Staten and Williamson
had a tense encounter, and Williamson then left for several hours.

She returned to the apartment around 1:15 in the morning. When she arrived,
Staten was in the living room. She grabbed a beer out of the refrigerator and walked into
the bedroom. Staten followed her, intending to ask about the earlier situation, but she was
on the telephone and he decided to wait. He told her they could discuss the matter later in
the morning, and she agreed, so he returned to the front room to get ready for bed. He got
in bed around 1:25, while Williamson stayed up and played a computer game.

Around 3 a.m., Williamson walked toward the kitchen and kicked the futon
mattress on which Staten was sleeping. Returning from the kitchen, she told him that he
did not have to worry about her staying because she was leaving. He went into the
bedroom and saw that she had packed her clothes. He told her that packing her clothes
meant she was ready to leave, so he took two bags of clothing and set them on the back
porch, along with some of her other belongings. When she went to see where he had put
6
her belongings, he locked her out of the bedroom, hoping that some time alone would
defuse her antagonism.

When Staten heard Williamson putting things in her car, he locked her out of the
apartment because he was concerned that she was agitated and confrontational. Then he
went outside to talk with her after she had calmed down. After they talked for about 20
minutes, he went around to the front to smoke a cigar while she went back inside. He saw
her take his keys and start to drop them in her purse, at which time he grabbed the key
chain and snatched the keys out of her purse.

Williamson ran toward him, called him a "bitch," and grabbed his keys. Staten
warned her that he would call the police, whereupon Williamson grabbed his right hand
and bit him on the right ring finger. As she bit down, he grabbed her in a headlock in an
attempt to make her release his finger. After she finally let go, he got up and went into the
living room to get his cell phone to call the police. While he was trying to unplug his
phone from its charger, Williamson ran up and hit him with a stick that they had been
using to hang laundry. She hit him on the head and in the face and chased him out of the
apartment.

They both tripped over a bicycle railing, and he wrestled the stick away from her
and hit her. She ran back toward him, so he hit her again in order to protect himself.
Williamson said she was going to kill him, and he thought he was going to die. It was
only after he had struck her several times that she became subdued enough to cease her
attack, and he returned to the apartment.

7
The verdict and sentence

A jury found Staten guilty of one count of aggravated battery, and he was
sentenced to a standard term of 154 months and ordered to pay $27,000 in restitution. He
took a timely appeal to the Court of Appeals, which affirmed the conviction. State v.
Staten, No. 108,305, 2015 WL 423644 (Kan. App. 2015) (unpublished opinion). This
court granted review with respect to all issues.

ANALYSIS

Jury instruction on burden of proof for self-defense

Staten first complains that the jury instructions failed to inform the jury properly
what the burden of proof was and who bore it. He asserted a self-defense theory at trial.
He contends that the district court committed reversible error by failing to instruct the
jury that the State was required to prove beyond a reasonable doubt that he did not act in
self-defense. While the district court gave a general burden of proof instruction, it did not
instruct specifically how the reasonable-doubt standard should apply to the self-defense
instruction. Staten maintains that, despite his failure to object, this omission constituted
reversible error.

When a party fails to object to or request a jury instruction, appellate review is
limited to a determination of whether the instruction was clearly erroneous. Review under
this standard consists of two steps: first the appellate court determines whether the
instruction as given was erroneous, that is to say, not legally and factually appropriate,
after an unlimited review of the record; and second, if there was error, the appellate court
will reverse only if it is firmly convinced that the jury would have reached a different
verdict had the instruction error not occurred. The party asserting a clearly erroneous
8
instruction maintains the burden of establishing the degree of prejudice necessary to
require reversal. State v. Knox, 301 Kan. 671, 680, 347 P.3d 656 (2015).

Staten argues that, in order to find him guilty, the jury had to be instructed that the
State bore the duty of proving beyond a reasonable doubt that he did not act in
self-defense.

Instruction No. 5 informed the jury of what the State was required to prove:

"The defendant is charged with the crime of aggravated battery. The defendant
pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. That the defendant intentionally caused great bodily harm to another person;
to wit: Yvonne Williamson; and
"2. That this act occurred on or about the 22nd day of July, 2011, in Wyandotte
County, Kansas."

Instruction No. 7, explaining the theory of self-defense, read:

"Defendant claims his use of force was permitted as self-defense.
"Defendant is permitted to use force against another person when and to the
extent that it appears to him and he reasonably believes such physical force is necessary
to defend himself against the other person's imminent use of unlawful force. Reasonable
belief requires both a belief by defendant and the existence of facts that would persuade a
reasonable person to that belief."

9
 Instruction No. 9, relating to the State's burden of proof, read:

"The State has the burden to prove the defendant is guilty. The defendant is not
required to prove he is not guilty. You must presume that he is not guilty unless you are
convinced from the evidence that he is guilty.
"The test you must use in determining whether the defendant is guilty or not
guilty is this: If you have a reasonable doubt as to the truth of any of the claims required
to be proved by the State, you must find the defendant not guilty. If you have no
reasonable doubt as to the truth of any of the claims required to be proved by the State,
you should find the defendant guilty."

Neither PIK Crim. 4th 51.050 (2013 Supp.) nor its substantially similar
predecessor, PIK Crim. 3d 52.08 (2008 Supp.), was given. PIK Crim. 4th 51.050
(2013 Supp.) would have informed the jury:

"The defendant raises describe the defense claimed as a defense. Evidence in
support of this defense should be considered by you in determining whether the State has
met its burden of proving that the defendant is guilty. The State's burden of proof does
not shift to the defendant."

Staten did not propose this instruction to the court and did not object to its
omission.

Self-defense has been recognized in Kansas as a defense against charges of battery
for well over a century. In The State v. Newland, 27 Kan. 764 (1882), the court upheld the
propriety of a jury instruction directing the jury that if the defendant "'acted throughout
only in a self-defense which was necessary, or apparently necessary, to avoid personal
injury, then he should be acquitted.'" 27 Kan. at 768-69. The court determined that the
remaining instructions adequately informed the jury of matters such as the presumption
of innocence and questions of reasonable doubt. 27 Kan. at 767.
10
 This court first considered the failure to instruct the jury under PIK Crim. 2d 52.08
in the absence of an objection in State v. Osbey, 238 Kan. 280, 285-86, 710 P.2d 676
(1985). There, the court held there was no error because the jury was instructed on
defense of a person, reasonable doubt, the burden of proof, the definitions of the various
legal terms relating to criminal intent, and the fact that the State's burden to prove such
intent never shifts to the defendant. "Error cannot be predicated on the refusal to give
specific instructions where those which were given cover and include the substance of
those refused." 238 Kan. at 286.

Next, in State v. Crabtree, 248 Kan. 33, 805 P.2d 1 (1991), the court applied a
clear-error standard in analyzing whether the omission constituted reversible error.
248 Kan. at 39-40. The court considered the instructions given as a whole, concluding
that the general burden of proof instruction sufficed to make it clear to the jury that the
defense relates to the State's burden of proof beyond a reasonable doubt. 248 Kan. at
39-40. The court then added that the evidence supporting the defense was vanishingly
weak and that consideration of the evidence, combined with the accuracy of the
instructions as a whole, did not lead to reversible error. 248 Kan. at 40-41.

Then, in State v. Sperry, 267 Kan. 287, 978 P.2d 933 (1999), this court was again
confronted with a self-defense instruction given without the clarifying 52.08 PIK
instruction. The court applied a standard of clear error because the defendant failed to
object to the omission of the 52.08 instruction on burden of proof. 267 Kan. at 294. The
court deemed the Crabtree language relating to the weakness of the defendant's evidence
to be dicta and not essential to determining reversibility. Relying on Crabtree, the court
concluded that the instructions as a whole sufficed to cover the subject of the burden of
proof when a self-defense instruction is given. 267 Kan. at 294-95.

11
 In State v. Cooperwood, 282 Kan. 572, 581-82, 147 P.3d 125 (2006), this court
subsequently reaffirmed Crabtree, holding that the trial court's failure to instruct the jury
with PIK Crim. 3d 52.08 was not clearly erroneous.

These cases were all decided under a statutory scheme that did not explicitly refer
to the burden of proof when the defendant asserts an affirmative defense. K.S.A. 21-3109
simply explained the presumption of innocence and the requirement of proof beyond a
reasonable doubt, as well as setting out rules for lesser included offenses.

In 2010, the Kansas Legislature repealed 21-3109 and created K.S.A. 2011 Supp.
21-5108(c), which read, in relevant part:

"(c) A defendant is entitled to an instruction on every affirmative defense that is
supported by competent evidence. Competent evidence is that which could allow a
rational fact finder to reasonably conclude that the defense applies. Once the defendant
satisfies the burden of producing such evidence, the state has the burden of disproving the
defense beyond a reasonable doubt." L. 2010, ch. 136, § 8.

This amendment codified the caselaw requirement that, once a defendant properly
asserts a self-defense affirmative defense, the State must disprove that defense beyond a
reasonable doubt. See Kansas Criminal Code Recodification Commission's Final Report,
Appendix A, Section 21-31-301, Comment (2010). The amendment did not alter the law
in Kansas concerning the State's burden of proof, and it did not create a new element that
the State must prove when charging a crime. Statutory self-defense is a rebuttable defense
to certain crimes, as it was before the amendment. See, e.g., State v. Henderson, 284 Kan.
267, 276, 160 P.3d 776 (2007) (discussing Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354, 158 L. Ed. 2d 177 [2004]); State v. Shore, No. 97,833, 2007 WL 4578005, at
*1-4 (Kan. App. 2007) (unpublished opinion), rev. denied 286 Kan. 1185 (2008).

12
 The cases prior to the statutory amendment read the instructions as a whole and
concluded that everything necessary for the jury to consider the burden of proof was
contained within the instructions. We see no reason to change course from that line of
cases.

Other jurisdictions have applied reasoning similar to our case analysis. Paprocki v.
Foltz, 869 F.2d 281, 285-86 (6th Cir. 1989) (instruction stating that burden of proving
guilt is upon prosecution throughout entire trial and that burden at no time shifts to
defendant sufficed to inform jury that State bore burden of establishing guilt beyond
reasonable doubt in light of defendant's self-defense theory); United States v. Jackson,
569 F.2d 1003, 1010-11 (7th Cir. 1978) (instructions informed jury of prosecution's
burden of proof and evidence against self-defense claim so overwhelming that it was
"very unlikely that the burden of proof omission had any effect on the jury's
determination of this case"; therefore, no plain error). See, e.g., Moore v. State, 275 Ind.
39, 42-43, 414 N.E.2d 558 (1981) (jury correctly instructed on State's burden to prove all
elements of crime beyond reasonable doubt; additional instruction dealing only with the
burden of proof as to self-defense was unnecessary); Woods v. State, 162 Ind. App. 316,
326, 319 N.E.2d 688 (1974) (instructions, taken as whole, sufficiently informed jury of
State's burden of proof, even though instruction on self-defense did not explicitly address
State's burden of proof beyond reasonable doubt); Tichnell v. State, 287 Md. 695, 714,
415 A.2d 830 (1980) (in death-penalty appeal, court rejected claim that trial court's
failure to instruct the jury clearly that burden was on State to prove he did not act in self-
defense constituted plain error, but separate instruction informed jury that burden of
proof remained "with the State throughout the trial"; this instruction sufficed to ensure
jury would assign proper burden of proof to self-defense claim); State v. Cooksey, 499
S.W.2d 485, 490 (Mo. 1973) (when instructions as whole covered presumption of
innocence, reasonable doubt of guilt, and State's burden to prove guilty beyond
reasonable doubt, court not required to give combined self-defense and burden-of-proof
13
instruction); State v. Syed Tagi Shah, 134 Wis. 2d 246, 256-58, 397 N.W.2d 492 (1986)
(reasonable jurors would interpret instructions as whole and would apply to self-defense
instruction other instructions governing presumption of innocence and State's burden of
proof).

The failure to give the PIK instruction was error, but it was not clear error.
Instructions are clearly erroneous only when the reviewing court is firmly convinced that
there is a real possibility that the jury would have reached a different verdict in the
absence of the error. State v. Richardson, 290 Kan. 176, 178, 224 P.3d 553 (2010). In
light of the generally correct nature of the instructions as a whole as well as the nature of
the evidence supporting Staten's claim of self-defense, we find no basis in the instructions
to reverse Staten's conviction.

Prosecutorial misconduct

Staten next argues that, during closing argument, the prosecutor engaged in
misconduct that was of such a magnitude that it requires reversal.

The prosecution opened its cross-examination of Staten with the following
exchange:

"Q: Would you agree with me that what she suffered was great bodily harm as a
result of this incident?
"A: And me defending myself, yes, ma'am.
"Q: So you acknowledge that she suffered great bodily harm?
"A: In defense of myself, yes."

14
 During closing argument, the prosecutor told the jury:

"All of these elements that I have to prove to you beyond a reasonable doubt are true. He
said yes, it happened in Wyandotte County, and yes, I caused great bodily harm to her.
He gives you that, so he is guilty of aggravated battery as we stand here."

Staten did not object to the prosecutor's questions during cross-examination. He is
therefore precluded from arguing on appeal that there was error in introducing that
evidence to the jury. See K.S.A. 60-404; State v. Sprague, 303 Kan. 418, 432-33, 362
P.3d 828 (2015).

He contends, however, that the prosecutor engaged in misconduct during the
closing argument by referring to the testimony obtained by the cross-examination
questions. He directs the court's attention to State v. Crum, 286 Kan. 145, 184 P.3d 222
(2008).

In Crum, the prosecution on cross-examination elicited testimony from the
defendant suggesting that the defendant agreed that the murder in question was
intentional and had been premeditated, although the defendant denied being the
perpetrator. Then, during closing argument, the prosecution argued to the jury that it did
not have to prove premeditation because the defendant had conceded that the murder
method "'sounds like a plan.'" 286 Kan. at 154.

We noted that the issue of premeditation was not undisputed and the prosecutor's
statement that he did not have to argue why the facts established the element of
premeditation exceeded the wide latitude afforded to prosecutors in discussing the
evidence. The court then perceived the argument as "so fundamentally erroneous as to be
gross and flagrant." 286 Kan. at 154. Furthermore, the combination of eliciting improper

15
lay opinion testimony and then characterizing the equivocal responses as a stipulation to
an element of the crime connoted ill will or "such misunderstanding of basic legal
principles as to be tantamount to ill will." 286 Kan. at 154-55.

The court nevertheless determined the evidence of guilt in the case to be
"overwhelming." In addition, the prosecutor included proper argument on how other facts
supported premeditation, and the question of premeditation was not a close call for the
jury. The critical issue for the jury was the identity of the perpetrator. The court
concluded the error was harmless. 286 Kan. at 155.

The testimony in the present case differed from that in Crum in two important
respects. First, the relevant facts before us now were undisputed. It was not contested that
Staten struck Williamson and that she experienced great bodily injury as a result. These
facts were not the fulcrum on which the success of Staten's defense rested. Staten's own
testimony on direct examination conceded that narrative. Staten argued instead that his
actions and Williamson's injuries were provoked by her attack on him, and he did not
waiver from that theory on cross-examination. The prosecutor focused her closing
argument on Staten's theory of self-defense. She acknowledged the presumption of
innocence that attaches to a defendant, while also referring to evidence casting doubt on
the elements of self-defense. Furthermore, in Crum, the elicited testimony went to the
defendant's opinion regarding the perpetrator's thoughts and intent. Here, the elicited
testimony was not speculative but was explicit—the defendant struck the victim, causing
her serious injuries, but the actions were motivated by a legally justifiable intent.

The prosecutor nevertheless erroneously stated that "he's acknowledged he's guilty
of this crime . . . ." The prosecutor thus mischaracterized Staten's testimony and referred
to facts not in evidence. Staten did not acknowledge that he was guilty; instead, he
testified that he was not guilty because he acted in self-defense. The comments were
16
therefore outside the wide latitude allowed a prosecutor in discussing evidence. See
Sprague, 303 Kan. at 427.

We nevertheless do not find the comments to rise to the level of reversible
misconduct. The prosecution maintained a focus on the pivotal question of self-defense
and did not show evidence of ill will or flagrant disregard for the rules governing
arguments. Moreover, the evidence was of such a direct and overwhelming nature that
the error carried little weight. See Sprague, 303 Kan. at 427. In light of the entire record,
there is no reasonable possibility that the error affected the verdict, and reversal is not
appropriate. See State v. Rosa, 304 Kan. 429, 439, 371 P.3d 915 (2016).

Request for new counsel

Staten next argues that the trial court abused its discretion both in the manner in
which it inquired about an alleged conflict of interest as well as in denying his request for
new counsel. Before the trial commenced, Staten asked the court to provide him with
new counsel, alleging a conflict with his appointed counsel and a breakdown of
communication. On appeal, he contends that the district court abused its discretion when
it denied the motion.

A district court's refusal to appoint new counsel is reviewed under an abuse of
discretion standard. State v. Sappington, 285 Kan. 176, 196, 169 P.3d 1107 (2007).
A court abuses judicial discretion if its action is (1) arbitrary, fanciful, or unreasonable;
(2) based on an error of law; or (3) based on an error of fact. State v. Wells, 297 Kan. 741,
753-54, 305 P.3d 568 (2013). If the district court has a reasonable basis to conclude that
counsel could provide "'effective aid in the fair presentation of a defense,'" then it cannot
be found to be an abuse of discretion. Sappington, 285 Kan. at 196. The defendant bears

17
the burden of proving the district court abused its discretion in denying the motion for
new counsel. 285 Kan. at 196.

We recently provided an extensive framework for analyzing the denials of
requests for new counsel in State v. Pfannenstiel, 302 Kan. 747, 758-60, 357 P.3d 877
(2015).

The right to counsel under the Sixth Amendment to the United States Constitution
contains a correlative right to representation that is unimpaired by conflicts of interest or
divided loyalties. Conflicts of interest and divided loyalties can take many forms, and
whether an actual conflict exists is evaluated on the specific facts of each case. In
general, a conflict exists when an attorney is placed in a situation conducive to divided
loyalties and can include situations in which the caliber of an attorney's services may be
substantially diluted. In order to obtain substitute counsel because of alleged lack of
performance by current counsel, a defendant must show justifiable dissatisfaction with
his or her appointed counsel. 302 Kan. at 758-60.

The Sixth Amendment does not guarantee a defendant the right to select which
attorney will represent the defendant. A defendant seeking substitute counsel must show
"'justifiable dissatisfaction'" with current counsel, which may be demonstrated by
showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown
in communication between counsel and the defendant. 302 Kan. at 759-60.

Staten presented the district court with an articulated statement of attorney
dissatisfaction, which triggered a duty on the part of the court to inquire into potential
conflicts of interest.

18
 This duty of inquiry may result in three types of errors, each of which is reviewed
for an abuse of discretion. 302 Kan. at 760. The first type of error occurs when a district
court becomes aware of a potential conflict of interest but fails to conduct an inquiry.
Such a failure constitutes an error of law, that is, a failure to follow the law and fulfill a
legal duty. The second type of error occurs when a district court conducts an inquiry but
fails to do so in an appropriate manner. An appropriate inquiry requires fully investigating
both the basis for the defendant's dissatisfaction with counsel and the facts necessary for
determining whether the dissatisfaction justifies appointing new counsel. The third type
of error may occur when a district court conducts an appropriate inquiry but fails to make
a decision that is reasonable in light of the facts that come to the fore. 302 Kan. at
761-62.

The morning of the trial, Staten's counsel, Craig Lubow, informed the court that
Staten was submitting a motion for new counsel. Lubow explained that Staten had at
some earlier time filed a disciplinary complaint against him, but the Disciplinary
Administrator had dismissed it. The court then asked Staten for the basis of his request.
He replied with a series of complaints relating to the validity of the arrest warrant,
allegedly inconsistent statements by one of the investigating detectives, failure to file
motions regarding those issues, and failure to communicate.

After hearing the argument, the trial court denied Staten's motion, holding that he
had failed to articulate justifiable dissatisfaction. The court noted that the motions that
Staten had filed with respect to the arrest warrant and the detective were without merit.

The pro se motions to which Staten referred consisted of a motion to compel
discovery, seeking transcripts of various recordings and hearings for the purpose of
helping him prepare a defense; a motion to quash the arrest warrant, asserting that the
arresting detective used inconsistent statements of facts to support the issuance of the
19
warrant; and a motion for judgment of acquittal, based on the allegations contained in the
motion to quash. These motions appear to have little bearing on the success of Staten's
defense, and they were denied in any event. The failure of the attorney to file the motions
on Staten's behalf did not dilute his ability to provide effective representation.

The major point remaining in Staten's request for new counsel was the asserted
breakdown of communication. Staten represented to the court that his attorney did not
speak with him for several months and only got in touch with him a couple of times in the
week before the trial. Staten did not, however, explain how this limited communication
worked adversely to the presentation of his defense. "'The focus of the justifiable
dissatisfaction inquiry is the adequacy of counsel in the adversarial process, not the
accused's relationship with his attorney.'" Pfannenstiel, 302 Kan. at 761-62 (quoting
United States v. Baisden, 713 F.3d 450, 454 [8th Cir. 2013]).

The statements made at the pretrial hearing showed that Staten's disciplinary
complaint had been dismissed. It is unclear who dismissed it—Staten, voluntarily, or the
Disciplinary Administrator, perhaps as a frivolous complaint. It is also unclear what the
basis of the complaint was, although the record suggests that the complaint raised
questions of communication.

In State v. Bryant, 285 Kan. 970, 992-93, 179 P.3d 1122 (2008), we considered
whether filing a disciplinary complaint in itself creates a conflict such that an attorney
should be disqualified from further representation of the client filing the complaint.
We held that the filing does not necessarily require a district court to replace counsel:

"During the May 18 inquiry, although discussion was sparse on the nature of the
disciplinary complaint itself, the court learned that the Disciplinary Administrator had
said there was nothing to investigate. Moreover, after discussion with Bryant and

20
 McBratney on the nature of Bryant's overall concerns, the court stated that it did not see
any conflict requiring her removal. During the November 18 inquiry, although similarly
limited on the nature of the second disciplinary complaint itself, the record reveals that
the court gave Bryant opportunities to be heard. Several times Judge Burdette asked
Bryant to 'give me something specific.' And . . . there is nothing in the record indicating
what McBratney's responses to the complaints were, much less any indication that they
'would be contrary' to any position she needed for defending Bryant." 285 Kan. at
992-93.

A court is not required to engage in a detailed examination of every nuance of a
defendant's claim of inadequacy of defense and conflict of interest. A single, open-ended
question by the trial court may suffice if it provides the defendant with the opportunity to
explain a conflict of interest, an irreconcilable disagreement, or an inability to
communicate with counsel. Wells, 297 Kan. at 755-56.

The district court allowed Staten to make two statements about his dissatisfaction
with his appointed counsel. While articulating displeasure with Lubow, Staten did not
proffer any specific manner in which Lubow would be unable to present his theory of
defense or why some other theory might have been preferable. The court's inquiry
sufficed to explore whether Staten's right to counsel was in jeopardy, and the district
court did not abuse its discretion in determining that replacing Lubow was not necessary
to protect Staten's right to a fair trial.

Cumulative error

Finally, Staten argues that the cumulative effect of various trial errors was so
prejudicial as to warrant a new trial. When a party argues that the cumulative impact of
alleged errors is so great that they result in an unfair trial, this court aggregates all errors
and, even if those errors individually would be considered harmless, analyzes whether

21
their cumulative effect is so great that they collectively cannot be determined to be
harmless. State v. King, 297 Kan. 955, 986, 305 P.3d 641 (2013). While we acknowledge
that error occurred in the jury instructions and in the prosecutor's closing argument, the
cumulative effect was not so great as to have been prejudicial to Staten's defense or to
require a new trial.

CONCLUSION

The judgment of the district court is affirmed, and the judgment of the Court of
Appeals affirming the district court is affirmed.

22