NOT DESIGNATED FOR PUBLICATION
No. 122,390
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
PHOUTHAVY CHANTHASENG,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JOHN E. SANDERS, judge. Opinion filed June 11, 2021.
Affirmed.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before WARNER, P.J., BUSER and CLINE, JJ.
PER CURIAM: This is an appeal by Phouthavy Chanthaseng of the district court's
order summarily denying his K.S.A. 60-1507 motion alleging ineffective assistance of
trial counsel. Chanthaseng contends the district court erred in summarily denying the
motion without affording him an evidentiary hearing. Upon our review, we find no
reversible error and, accordingly, affirm the district court's ruling.
1
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, a jury convicted Chanthaseng of aggravated indecent liberties with a
child in violation of K.S.A. 21-3504(a)(3)(A) and (c). The district court imposed a
sentence of life imprisonment without the possibility of parole for 25 years. Chanthaseng
appealed, and the Kansas Supreme Court affirmed the conviction and sentence. See State
v. Chanthaseng, 293 Kan. 140, 261 P.3d 889 (2011).
In June 2012, Chanthaseng filed a K.S.A. 60-1507 motion alleging three claims of
ineffective assistance of trial counsel and cumulative error. Four months later,
Chanthaseng moved to amend the motion. The amended motion alleged eight claims of
ineffective assistance of trial counsel, one claim of ineffective assistance of appellate
counsel, one jurisdictional claim, and one claim of judicial misconduct. Chanthaseng
asserted that these issues related back to the original motion.
The parties are aware of the lengthy procedural history involving the amended
motion. On appeal, Chanthaseng candidly acknowledges, however, that "the question of
trial counsel's effectiveness during the voir dire process and his failure to strike, or even
question a [juror] with a history of being molested as a child, was the only issue of
substance and proper for appellate review." As a result, the propriety of the district court's
ruling with respect to the other issues raised throughout the K.S.A. 60-1507 proceedings
but not briefed on appeal is not before this court. See State v. Arnett, 307 Kan. 648, 650,
413 P.3d 787 (2018) ("'An issue not briefed by an appellant is deemed waived or
abandoned.'"). We will focus our analysis on trial counsel's handling of the voir dire of
the juror identified as M.K.-B.
In the district court, Chanthaseng maintained an evidentiary hearing was
"necessary to assess whether counsel made a strategic decision not to challenge [M.K.-
B.] and for failing to remove the juror as part of defense counsel's strikes." The district
2
court ultimately denied Chanthaseng's request for an evidentiary hearing on the claim of
ineffective assistance of counsel regarding M.K.-B. The district court held:
"[T]he Court denies petitioner's request to grant a hearing on this issue. Though
Chanthaseng asserts that a juror was biased, the transcript of the exchange between
counsel and the juror during voir dire where the juror stated that she would have to listen
to the evidence before determining guilt shows petitioner has not shown prejudice. Any
examination of a juror's thought process would be prohibited and extrinsic matters would
be mostly useless."
Chanthaseng appeals.
ANALYSIS
On appeal, Chanthaseng claims he was entitled to an evidentiary hearing to
address whether his trial counsel was ineffective for failing to question or challenge the
prospective juror, M.K.-B.
District courts shall hold an evidentiary hearing on a K.S.A. 60-1507 motion and
make findings of fact and conclusions of law with respect thereto, unless the motion,
files, and records of the case conclusively show the movant is not entitled to relief.
K.S.A. 2020 Supp. 60-1507(b); Supreme Court Rule 183(f) and (j) (2021 Kan. S. Ct. R.
239). To avoid summary denial, the movant bears the burden of establishing entitlement
to an evidentiary hearing. To meet this burden, the movant's contentions must be more
than conclusory, and the movant must set forth an evidentiary basis to support those
contentions or the basis must be evident from the record. Sola-Morales v. State, 300 Kan.
875, 881, 335 P.3d 1162 (2014). When, as in this case, the district court decides to
summarily deny a K.S.A. 60-1507 motion, our court conducts a de novo review to
determine whether the motion, files, and records of the case conclusively establish that
the movant is not entitled to relief. 300 Kan. at 881.
3
To prevail on an ineffective assistance of counsel claim, the movant must satisfy
the constitutional standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Thompson v. State, 293 Kan. 704, 715, 270 P.3d
1089 (2011). Under the Strickland two-prong standard, the defendant must show that
counsel's performance "'fell below an objective standard of reasonableness, considering
all the circumstances,'" and "'there is a reasonable probability'" that, but for counsel's
error, the result of the proceeding would have been different, i.e., counsel's deficient
performance prejudiced the defense and deprived the defendant of a fair trial. Thompson,
293 Kan. at 715.
Chanthaseng claims his trial counsel's representation was deficient because he
failed to question M.K.-B. about "her ability to be fair and impartial" and counsel's
failure to strike M.K.-B. from the jury venire. Chanthaseng also claims, for the first time
on appeal, that his trial counsel was ineffective for failing to object to some of the
prosecutor's comments during voir dire. We will analyze these two arguments separately
and in order. However, both of Chanthaseng's arguments are based on this colloquy
between the prosecutor, the jury venire generally, and M.K.-B. in particular:
"[PROSECUTOR]: . . . I've sort of hinted at this indirectly, but because of the subject
matter of this case, here is the direct question to all of you: Have you or anyone close to
you ever been the victim of any kind of sexual abuse? . . .
....
"But for the rest of the box and the gallery, have you or anyone close to you
had—had any contact with this topic, the area of sexual abuse?
....
"[M.K.-B.]: I was molested at the age of eight, when I was little.
"[PROSECUTOR]: Was the abuser known to you or a family member?
"[M.K.-B.]: No. It was known to me.
"[PROSECUTOR]: A friend?
"[M.K.-B.]: It was a friend of a friend.
"[PROSECUTOR]: Was it reported?
4
"[M.K.-B.]: No.
"[PROSECUTOR]: Who—how old were you first time you told anybody about
this?
"[M.K.-B.]: Probably 35, but that's just a guess.
"[PROSECUTOR]: Now, all these years later, you know, I don't need to know
the details of the molest. Was it a one-time thing or ongoing?
"[M.K.-B.]: No. It was a one-time thing.
"[PROSECUTOR]: All these years later, here you are in a courtroom about a
case like this. What do you think? Do you think that you'd be able to set yours aside and
be fair here?
"[M.K.-B.]: I really don't know.
"[PROSECUTOR]: You need to hear the facts first, don't you?
"[M.K.-B.]: Yeah.
"[PROSECUTOR]: That's a very fair statement. Does your spouse know?
"[M.K-B.]: Yes.
"[PROSECUTOR]: You know, sometimes we do these cases, and someone
raises their hand for the first time in their lives, and they haven't even told their spouses.
"So, [M.K.-B.], here's the deal, you know, you may want to talk about a lot after
this case is over. When you're under the admonition, you can't. You can't discuss this
with your spouse or anyone. But after it's over, that is an opportunity to vent and tell
everything you want to tell, but you're still under the admonition at this point. Do you get
that?
"[M.K.-B.]: (Nods head up and down.)
"[PROSECUTOR]: Is there anything else about your experience that you think
we should know before we proceed?
"[M.K.-B.]: My spouse knows, but my own mother doesn't know.
"[PROSECUTOR]: Okay. Do you understand the feeling of shame that a victim
might have—
"[M.K.-B.]: Yes.
"[PROSECUTOR]: —in disclosing this?
"[M.K.-B.]: Yes."
5
Trial Counsel's Failure to Question or Strike Prospective Juror M.K.-B.
Chanthaseng's argument regarding his first issue on appeal consists of one brief,
conclusory paragraph regarding trial counsel's alleged deficient performance:
"But, what [M.K.-B.] says is that she doesn't know whether or not her history would have
an effect on her because she hasn't heard any evidence. This leaves the door open as to
whether she can be fair and impartial because right then she did not have the facts to
make the decision. That is a statement of being unsure. She was never asked, and never
stated, that she believed she could be fair despite her past experience. But we are talking
about a wom[an] who did not reveal her assault for twenty five years from the time it
happened. Any effective attorney would have followed up with the juror and questioned
her ability to be fair and impartial." (Emphasis added.)
At the outset, Chanthaseng does not cite to Strickland or favor our court with an
analysis of his trial counsel's ineffective assistance in accordance with that landmark
precedent. Instead, Chanthaseng broadly claims that any effective attorney would have
asked additional questions of M.K.-B. and questioned her about her ability to be fair and
impartial. But importantly, Chanthaseng does not cite any statutory or caselaw precedent
in support of his conclusory opinion about how trial counsel should have proceeded in
questioning M.K.-B. about this sensitive area. Other than the opinion of appellate
counsel, Chanthaseng has failed to show that trial counsel's failure to ask additional
questions of M.K.-B. "fell below an objective standard of reasonableness, considering all
the circumstances,'" (Emphasis added.) 293 Kan. at 715.
Chanthaseng's claim that his trial counsel should have struck M.K.-B. from the
jury venire is also lacking merit. A review of the jury venire shows that M.K.-B.'s
experience as a sexual assault victim was not unique. In all, eight potential jurors
acknowledged they had been molested or had family members who were victims of
molestations. Three other potential jurors stated their professional employment resulted
6
in having contact with abused and neglected children. Chanthaseng does not explain,
given the large number of potential jurors with similar experiences as M.K.-B., why it
was ineffective to not strike her when numerous others potential jurors had similar
experiences involving molestation.
Given the composition of the jury venire, trial counsel was confronted with
numerous prospective jurors with similar experiences as M.K.-B. that were deserving of
consideration for challenges for cause or peremptory challenges. In fact, defense counsel
successfully challenged one prospective juror for cause due to her daughter's recent
experience involving a potential molestation encounter. The record shows that defense
counsel was aware of the significant number of prospective jurors with either personal or
professional experiences with child sexual abuse and that he took reasonable steps to
protect Chanthaseng's interests during voir dire.
Kansas law provides that in reviewing claims of ineffective assistance of counsel,
"courts are highly deferential in scrutinizing counsel's conduct and counsel's decisions on
matters of reasonable strategy, and make every effort to eliminate the distorting effects of
hindsight." Moncla v. State, 285 Kan. 826, Syl. ¶ 3, 176 P.3d 954 (2008). Kansas courts
have found decisions such as "what jurors to accept or strike" are strategic:
"[C]ertain decisions relating to the conduct of a criminal case are ultimately for the
accused: (1) what plea to enter; (2) whether to waive a jury trial; and (3) whether to
testify. Others are ultimately for defense counsel. The decisions on what witnesses to call,
whether and how to conduct cross-examination, what jurors to accept or strike, what trial
motions should be made, and all other strategic and tactical decisions are the exclusive
province of the lawyer after consultation with his or her client. [Citation omitted.]"
(Emphasis added.) Bledsoe v. State, 283 Kan. 81, 92, 150 P.3d 868 (2007).
Our Supreme Court has also warned against "the distorting effects of hindsight" in
evaluating the first prong under Strickland:
7
"'The first prong of the test for ineffective assistance of counsel requires a
defendant to show that counsel's representation fell below an objective standard of
reasonableness, considering all the circumstances. Judicial scrutiny of counsel's
performance must be highly deferential, and a fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. We must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance.'
[Citation omitted.]" Edgar v. State, 294 Kan. 828, 838, 283 P.3d 152 (2012) (quoting
Bledsoe, 283 Kan at 90).
Returning to the case on appeal, the colloquy between the prosecutor and M.K.-B.
enlightened trial counsel that the prospective juror had been the victim of a sexual assault
and the juror had been reluctant over the years to disclose that fact. The colloquy also
showed that despite M.K.-B.'s sexual assault and her reluctance to disclose it to family
members, the juror's answers to the prosecutor's highly personal questions in a public
courtroom were responsive and by all appearances were candid and truthful. Importantly,
M.K.-B. never indicated that she could not be fair to Chanthaseng despite experiencing a
sexual assault, but she understood the necessity to consider the evidence at trial before
making any judgment. In short, because of the prosecutor's questions, trial counsel
learned significant personal information about M.K.-B.'s sexual history and apparent
honesty, which was relevant to assess whether, in the best interests of Chanthaseng, the
juror should be challenged.
The crux of Chanthaseng's complaint, however, is that trial counsel was
ineffective for not asking M.K.-B. additional questions about her ability to be fair and
impartial. Given M.K.-B.'s answers to the prosecutor's questions, the need for defense
counsel to ask additional questions is not apparent. Moreover, we question the wisdom
and effectiveness of defense counsel asking M.K.-B. additional questions about this
sensitive subject matter. After the prosecutor's lengthy voir dire, any additional
8
questioning by defense counsel about this difficult topic risked embarrassing M.K.-B.,
other potential jurors with similar experiences, and had the potential to place defense
counsel in a bad light before the entire jury venire.
"The purpose of the voir dire examination is to enable the parties to select
competent jurors without bias, prejudice, or partiality." State v. Zamora, 247 Kan. 684,
Syl. ¶ 2, 803 P.2d 569 (1990). This purpose was achieved in this case. Given the "strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance," and the deference afforded to trial counsel on strategic decisions such as
"what jurors to accept or strike," Chanthaseng has not set forth an evidentiary basis to
merit an evidentiary hearing in support of his claim. See Sola-Morales, 300 Kan. at 881.
Next, for the sake of completeness, we address the prejudice prong of the
Strickland test and consider whether there is a reasonable probability that, but for
counsel's purported error, the result of the proceeding would have been different, i.e.,
counsel's deficient performance prejudiced the defense and deprived the defendant of a
fair trial. Thompson, 293 Kan. at 715. In Chanthaseng's motions filed with the district
court he did not articulate a claim that he was prejudiced by defense counsel's deficient
performance. On appeal, he does not claim or show prejudice either. As a result,
Chanthaseng has not shown "'there is a reasonable probability'" that, but for counsel's
error, the result of the proceeding would have been different. See 293 Kan. at 715.
In conclusion, we are convinced the district court did not err in ruling that
Chanthaseng did not satisfy his burden of establishing entitlement to an evidentiary
hearing on the issue of ineffective assistance of counsel. The defendant did not establish
how defense counsel's conduct during voir dire fell below an objective standard of
reasonableness, nor did he show how he was prejudiced by the failure to question M.K.-
B. further or seek to strike her from the jury venire. In short, "the motion together with
9
the files and records of the case conclusively show that the movant is not entitled to
relief." See Moncla, 285 Kan. 826, Syl. ¶ 1.
Trial Counsel's Failure to Object to the Prosecutor's Voir Dire Comments
For the first time on appeal, Chanthaseng contends his trial counsel was
ineffective for failing to object to some of the prosecutor's other comments during voir
dire. As included earlier in the Factual and Procedural Background section of this
opinion, these comments included telling M.K.-B. and the jury venire that "this case
might have an emotional impact on [M.K.-B.] and that she might need to vent because of
her prior molestation. Additionally, Chantsatheng complains that trial counsel did not
object when the prosecutor mentioned the feeling of shame that a victim of sexual assault
may experience. These failures, Chanthaseng argues, violated his "constitutional right to
a fair and impartial jury."
At the outset, it is well settled that constitutional grounds for reversal asserted for
the first time on appeal are not properly before an appellate court for review. State v.
Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). Still, our Supreme Court has recognized
three exceptions:
"'Despite the general rule, appellate courts may consider constitutional issues
raised for the first time on appeal if the issue falls within one of three recognized
exceptions: (1) The newly asserted claim involves only a question of law arising on
proved or admitted facts and is determinative of the case; (2) consideration of the claim is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3)
the district court is right for the wrong reason.'" State v. Godfrey, 301 Kan. 1041, 1043,
350 P.3d 1068 (2015) (quoting State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 [2010]).
10
Chanthaseng concedes he is raising this issue for the first time on appeal but
asserts our court should consider his new argument because he meets the first two
exceptions. We disagree.
With regard to the first exception, the prosecutor's comments may be "'proved or
admitted facts,'" but his claim would not be "'determinative of the case.'" Godfrey, 301
Kan. at 1043. A holding in Chanthaseng's favor would result in reversal of the district
court's summary denial and remand for an evidentiary hearing before the district court
and for further proceedings. Thus, this is not an exceptional claim that is "'determinative
of the case.'" 301 Kan. at 1043.
Regarding the second exception, Chanthaseng argues his right to an impartial jury
and fair trial was violated by defense counsel failing to object to the prosecutor's
questioning due to "the infection of improper statements of law and prosecutorial
exploitation of a juror's unfortunate past." But Chantsethang was aware of the
prosecutor's voir dire comments in 2008 because he raised the issue of prosecutorial
misconduct in a related context in his direct appeal. Moreover, in September 2011, our
Supreme Court addressed the issue of prosecutorial misconduct in its opinion, concluding
that while some error occurred it was not reversible. Chanthaseng, 293 Kan. at 150. And
when Chantsatheng filed his K.S.A. 60-1507 motion and amended motion in 2012, he
focused on his trial counsel's ineffective assistance for failing to question or challenge
M.K.-B. about her prior molestation, yet apparently ignored whether additional error
occurred because his trial counsel failed to object to the prosecutor's comments about
molestations. Inexplicably, Chantsatheng did not raise in 2012 the additional claim of
ineffectiveness based on the prosecutor's comments regarding molestations but waited
until the filing of his appellate brief in 2020 to raise this issue for the first time on appeal.
Given this procedural history wherein Chantsatheng had actual knowledge of his
trial attorney's failure to object to the prosecutor's voir dire comments, yet the defendant
11
failed to raise the issue for 12 years, we are not convinced his newly asserted issue merits
an exception to the general rule precluding appellate review.
Finally, Chanthaseng asserts the "ends of justice also need to be served because
[the prosecutor] has been previously admonished by the appellate [courts] of this State
for similar actions." Chanthaseng does not provide any caselaw support wherein our court
found such an exception applicable under these circumstances. Chanthaseng also fails to
mention that the prosecutor was admonished for conduct which occurred six years after
Chanthaseng's trial in 2008. See State v. Akins, 298 Kan. 592, 315 P.3d 868 (2014).
Moreover, the prosecutor's errors as found by our Supreme Court in Akins did not involve
purportedly improper questions or comments made during voir dire. This exception does
not apply.
All things considered, Chanthaseng has failed to show that we should consider this
new issue as an exception to the general rule precluding review. Accordingly, we decline
to review this new issue. See State v. Gray, 311 Kan. 164, Syl. ¶ 1, 459 P.3d 165 (2020)
("The decision to review an unpreserved claim under an exception is a prudential one.
Even if an exception would support a decision to review a new claim, this court has no
obligation to do so.").
Affirmed.
12