NOT DESIGNATED FOR PUBLICATION
No. 123,484
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
BRENT ALLAN BOLLINGER,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Bourbon District Court; MARK ALAN WARD, judge. Opinion filed January 28, 2022.
Affirmed.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Brandon D. Cameron, assistant county attorney, and Derek Schmidt, attorney general, for
appellee.
Before SCHROEDER, P.J., BRUNS and WARNER, JJ.
PER CURIAM: This is Brent Allan Bollinger's second appeal from the district
court's denial of his K.S.A. 60-1507 motion. In 2013, a jury convicted Bollinger of felony
murder, aggravated arson, and aggravated child endangerment. After his convictions
were affirmed on direct appeal, Bollinger filed a K.S.A. 60-1507 motion alleging
ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and
prosecutorial misconduct. After the district court summarily dismissed his motion,
Bollinger appealed. Although this court upheld the summary dismissal of Bollinger's
claims regarding ineffective assistance of appellate counsel and prosecutorial misconduct,
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it remanded the issue of ineffective assistance of trial counsel to the district court.
Bollinger v. State, No. 118,193, 2018 WL 5091870, at *2-3 (Kan. App. 2018)
(unpublished opinion).
On remand, Bollinger filed an amended K.S.A. 60-1507 motion with the
assistance of counsel, and the district court held an evidentiary hearing. After considering
the evidence presented at the hearing, the district court denied Bollinger's claim of
ineffective assistance of trial counsel. Specifically, the district court found that Bollinger
failed to establish that trial counsel's performance fell below an objective standard of
reasonableness and failed to establish that he suffered prejudice as a result of the claimed
ineffectiveness. Although Bollinger contends in this appeal that the district court erred by
denying his claim that trial counsel was ineffective, we find no error based on our review
of the record. Thus, we affirm the district court.
FACTS
A summary of the underlying facts appears in State v. Bollinger, 302 Kan. 309,
311-12, 352 P.3d 1003 (2015). Consequently, we will not repeat those facts relating to
Bollinger's conviction in this opinion. Rather, we will refer to the underlying facts as
necessary in the analysis section of our opinion to the extent that they are significant to
Bollinger's current appeal.
On December 19, 2016, after a mandate was issued in his direct appeal, Bollinger
filed a timely pro se K.S.A. 60-1507 motion. The motion was assigned to the same
district court judge who had presided over Bollinger's jury trial. In his K.S.A. 60-1507
motion, Bollinger made very general allegations of ineffective assistance of trial counsel,
ineffective assistance of appellate counsel, and prosecutorial misconduct. Moreover,
Bollinger did not support his allegations with specific facts or citations to the record. As a
result, the district court summarily dismissed the K.S.A. 60-1507 motion, ruling that
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Bollinger "merely makes conclusory contentions without stating any evidentiary basis to
support his claims. No evidentiary basis appears in the record."
On appeal, a panel of our court affirmed the summary dismissal of Bollinger's
K.S.A. 60-1507 motion as to the claims of ineffective assistance of appellate counsel and
prosecutorial misconduct. But the panel vacated the summary dismissal of his claim of
ineffective assistance of trial counsel. In particular, the panel observed that the Kansas
Supreme Court had declined to consider Bollinger's hearsay issue on direct appeal
because his trial counsel failed to preserve it at trial. Accordingly, the panel remanded the
motion to the district court to determine "whether there is an issue in regard to Bollinger's
claim of ineffective assistance of trial counsel." Bollinger, 2018 WL 5091870, at *2.
On remand, the district court appointed counsel to represent Bollinger on his
motion, and his new attorney filed an amended K.S.A. 60-1507 motion. In the amended
motion, Bollinger claimed that trial counsel was ineffective based on the following: (1)
trial counsel relied on a continuing objection rather than lodging specific
contemporaneous objections to certain hearsay testimony presented at trial; (2) trial
counsel failed to adequately challenge the State's medical examiner, Dr. Erik Mitchell, on
cross-examination or by presentation of expert testimony to refute his opinions; and (3)
trial counsel failed to retain an audio expert to enhance the audio of a 911 call.
On October 16, 2020, the district court held an evidentiary hearing to consider
Bollinger's allegations. At the hearing, both Bollinger and the attorney who had
represented him at trial testified. At the conclusion of the hearing, the district court took
the matter under advisement. Subsequently, on November 9, 2020, the district court
issued a written order denying the claims asserted in Bollinger's amended K.S.A. 60-1507
motion.
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In its order, the district court found that Bollinger had abandoned his claim that his
trial counsel was ineffective for failing to hire an expert to enhance the audio of the 911
calls. In particular, the district court found that Bollinger had failed to present any
evidence or testimony in support of this claim at the evidentiary hearing. As such, the
district court denied Bollinger's claim of ineffectiveness based on failure to retain an
audio expert.
Next, the district court addressed Bollinger's claim that trial counsel was
ineffective for failing to contemporaneously object to hearsay statements introduced at
trial. The district court found that it had ruled prior to trial that statements made by the
deceased victim would be admissible provided the proper foundation was established.
The district court also found trial counsel's testimony to be credible that Bollinger was
aware of the pretrial ruling and of the exception to the hearsay rule under K.S.A. 60-
460(d)(3). The district court found trial counsel's testimony that he did not want to
alienate the jury by constantly objecting to a matter that the district court had previously
ruled upon to be significant. In addition, the district court found that Bollinger failed to
show that his right to a fair trial was prejudiced. So, the district court denied Bollinger's
claim of ineffectiveness based on trial counsel's failure to object to hearsay testimony in
the presence of the jury.
Finally, the district court rejected Bollinger's claim that trial counsel failed to
adequately challenge the State's medical examiner on cross-examination or that he was
ineffective for failing to seek the assistance of additional experts. The district court found
that trial counsel had consulted with experts in preparation for trial relating to a variety of
issues including an expert regarding the victim's cause of the death. The district court
further found that trial counsel cross-examined Dr. Mitchell extensively and was
successful in impeaching his testimony in some areas. Although the district court noted
that Bollinger showed that trial counsel may have missed some specific background
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information that may have been helpful in further impeaching Dr. Mitchell, it concluded
that this did not prejudice his right to a fair trial.
In its order, the district court concluded:
"The Court finds, based upon the totality of the circumstances, that [Bollinger] received
fair proceedings both before and during the jury trial. The Court finds, based upon the
totality of the circumstances, that [Bollinger] has failed to demonstrate or prove that his
trial counsel's performance fell below an objective standard of reasonableness. Therefore,
the Court finds that [Bollinger] has failed to prove that his trial counsel was ineffective.
Furthermore, [Bollinger] has failed to prove any prejudice that may have resulted from
his allegations of ineffective assistance of trial counsel. [Bollinger] has failed to present
sufficient evidence to establish that there was a substantial likelihood of a different result
in his case."
Thereafter, Bollinger filed a timely notice of appeal.
ANALYSIS
The sole issue presented in this appeal is whether the district court erred in
denying Bollinger's K.S.A. 60-1507 motion concerning ineffective assistance of trial
counsel. Bollinger argues that trial counsel was ineffective for relying on a continuing
objection regarding the admission of hearsay testimony. He also argues that trial counsel
was ineffective for failing to adequately challenge the testimony of the State's medical
expert at trial. We note, however, that Bollinger does not argue that the district court
erred in denying his claim that trial counsel was ineffective by failing to retain an audio
expert to enhance the audio of the 911 call.
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Standard of Review
After a full evidentiary hearing on a K.S.A. 60-1507 motion, the district court
must issue findings of fact and conclusions of law concerning all issues presented.
Supreme Court Rule 183(j) (2021 Kan. S. Ct. R. 239). In turn, we review the district
court's findings of fact to determine whether they are supported by substantial competent
evidence and are sufficient to support the court's conclusions of law. However, we review
the district court's ultimate conclusions of law de novo. Balbirnie v. State, 311 Kan. 893,
897-98, 468 P.3d 334 (2020).
The Sixth Amendment to the United States Constitution guarantees that in
criminal prosecutions the accused has the right to effective assistance of counsel. The
Sixth Amendment is applied to the states under the Fourteenth Amendment. Sola-
Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014). To establish ineffective
assistance of counsel based on deficient performance, a defendant must satisfy the test set
forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019), the Kansas Supreme
Court explained:
"To prevail on a claim of ineffective assistance of trial counsel, a criminal defendant must
establish (1) that the performance of defense counsel was deficient under the totality of
the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury
would have reached a different result absent the deficient performance. Sola-Morales v.
State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267
[1984])."
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In other words, under the Strickland test, Bollinger has the burden of proving both
that trial counsel's performance was deficient based on the totality of the circumstances
and that, but for trial counsel's performance, there is a reasonable probability that a
different result would have been reached by the jury. See State v. Phillips, 312 Kan. 643,
676, 479 P.3d 176 (2021). A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the case. State v. Butler, 307 Kan. 831, 853, 416
P.3d 116 (2018). Here, after hearing the evidence presented at the K.S.A. 60-1507
hearing, the district court determined that Bollinger had failed to meet his burden of
proof.
Our Supreme Court has held that great deference should be given to strategic
decisions made by counsel at trial. As a result, we generally will not find counsel's
performance to be deficient based on matters that involve trial strategy or professional
judgment. State v. Betancourt, 301 Kan. 282, 306, 311, 342 P.3d 916 (2015). Rarely
should an attorney's representation of a defendant be deemed ineffective where deliberate
strategic decisions were made at trial from potentially suitable options. See Strickland,
466 U.S. at 690-91.
Even so, regarding investigations by trial counsel, an attorney "'has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.'" State v. Adams, 311 Kan. 569, 579, 465 P.3d 176 (2020).
So, an unreasonable decision may amount to deficient representation depending on the
totality of the circumstances. 311 Kan. at 579. Ultimately, our focus is on whether the
defendant received a fair trial. Strickland, 466 U.S. at 696. At the same time, we
recognize that a defendant "is entitled to a fair trial but not a perfect one." State v. Cruz,
297 Kan. 1048, 1075, 307 P.3d 199 (2013).
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Admission of Hearsay Testimony
Bollinger argues that his trial counsel failed to sufficiently object to the admission
of certain hearsay testimony. He points us to the testimony of witnesses who testified that
the victim had indicated that Bollinger was on the "warpath" prior to the fire, that he had
been shooting off guns in the middle of the night, that he carved or attempted to carve
initials into his arm, and that the victim had told him to go ahead and burn the house
down during a heated telephone conversation. Bollinger asserts this evidence framed him
"as somebody who would do something crazy, like burn down a house."
Bollinger's trial counsel, Paul Morrison, was an experienced attorney in the area of
criminal law. Morrison was the Johnson County District Attorney for 18 years and later
served as the Attorney General of Kansas. At the time of Bollinger's trial, Morrison had
over 28 years of experience and had tried over 150 criminal jury trials.
Prior to trial, the State sought to introduce hearsay evidence in accordance with
K.S.A. 2014 Supp. 60-455 in which it referred to hearsay statements that the victim made
in the days leading up to the fire. In response, Morrison asked for an order to prevent the
State from presenting the hearsay testimony. However, the district court ruled that the
victim's statements would be admissible under K.S.A. 2014 Supp. 60-460(d)(3) so long
as the State laid a proper foundation at trial. K.S.A. 2014 Supp. 60-460(d)(3) provides an
exception to the general rule barring hearsay and permits testimony regarding a statement
made by a person who is unavailable as a witness, was made at a time when the matter
had been recently perceived by the declarant and was made in good faith while the
declarant' s recollection was clear.
During trial, Morrison asked for a general continuing objection to any hearsay
evidence, and the district court noted his objection on the record. Morrison testified at the
hearing on the K.S.A. 60-1507 motion that considering the district court's rulings
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regarding the admission of this evidence and other factors, he made the strategic decision
not to lodge specific objections to the hearsay statements at trial. Instead, he lodged his
continuing objection to the hearsay evidence at trial so that he would not alienate the
jurors by constantly objecting during trial. Specifically, Morrison testified that he did not
want to annoy the jury by objecting to evidence when his objections were likely to be
overruled.
Morrison explained:
"I'm not afraid to mix it up, I'm not afraid to object if I need to. But you have to weigh
what are the chances of winning this objection. When you have to object ten times in five
minutes, let's say for an example, in front of a jury, when you don't think your objections
are going to be sustained."
He further explained: "You want [the jurors] to like you and you want them to
like the client."
Although Bollinger makes an argument that the declarant—the deceased victim in
this case—may have had an incentive to lie or distort information because the couple was
going through a contentious divorce, he does not show that the district court was likely to
back away from its previous ruling had specific objections been made at trial. In this
regard, we find it significant that the district court judge who presided over the trial—and
made the rulings regarding the admissibility of the evidence—also heard Bollinger's
K.S.A. 60-1507 motion. As our Supreme Court has observed, the performance of trial
counsel "can best be evaluated by the judge who presided at trial." Wilkins v. State, 286
Kan. 971, 988, 190 P.3d 957 (2008).
Also, we find Bollinger's own testimony at trial to be significant. During direct
examination, he admitted that he had lit the victim's clothes on fire during a prior
argument. He further admitted that during the same encounter, he punched the television,
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he broke some of the victim's furniture that her grandmother had given to her, and he
broke the dresser drawers in the bedroom. In addition, Bollinger testified that on the night
of the fire, he lunged at his wife. In fact, he agreed that "[he] very well could have" hurt
his wife. Hence, even without the hearsay evidence, the jury would have heard similar
testimony from Bollinger himself regarding his prior behavior.
We are not presented with a situation where counsel was unprepared or failed to
pay attention to the testimony presented at trial. Instead, Morrison testified that he made a
strategic decision not to object and explained his rationale for making this choice.
Moreover, the district court found Morrison's testimony to be credible. Similarly, we find
that Morrison's testimony constitutes substantial competent evidence regarding the
decisions he made in his professional judgment both prior to and during the trial.
Under the totality of the circumstances, we do not find the performance of trial
counsel regarding the admission of hearsay testimony to have been deficient. Likewise,
we do not find that Bollinger suffered prejudice as a result of the alleged ineffectiveness
of counsel relating to the admission of this testimony at trial without further objection.
Furthermore, we do not find that there is a reasonable probability the jury would have
reached a different result absent the alleged deficient performance of trial counsel relating
to the admission of the hearsay testimony.
Impeachment of State's Medical Expert
Bollinger also argues that his trial counsel was ineffective by failing to discover
allegations made nearly 30 years ago in New York that the State's medical expert—Dr.
Mitchell—was biased towards the prosecution. Bollinger suggests that this information
could have been used at trial to impeach Dr. Mitchell's credibility. In response, the State
argues that it would not have benefitted Bollinger's theory of defense for Morrison to
attempt to impeach Dr. Mitchell's opinion regarding the cause of the victim's death.
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Despite Bollinger's statements to American Medical Response (AMR) personnel
on the scene that he was responsible for the fire, he staunchly denied his involvement in
the arson at trial. As a result, Morrison attempted to design a theory of defense based on
Bollinger's version of the events. Morrison testified that instead of focusing on the
victim's cause of death, it was his opinion that "our only shot was that somebody else was
there."
Morrison also testified that he retained a medical expert, but his report was "not
particularly helpful to use in terms of cause of death." According to Morrison, Dr.
Mitchell's opinion that the victim was alive when the fire was set and that strangulation
marks were present on her neck was consistent with what he learned during his
investigation into the cause of death. Further, Morrison testified that additional
evidence—including photographs of the autopsy—corroborated Dr. Mitchell's opinion
that the victim was alive when the fire was set and that the fire ultimately caused her
death.
Moreover, Morrison testified that it was his opinion that introducing the defense
expert might do more harm to Bollinger's case than good because the expert's report
primarily challenged Dr. Mitchell's report on "minor details" instead of on substance.
According to Morrison, he was aware of some of the alleged problems Dr. Mitchell had
when he was practicing in New York. At the same time, Morrison admitted that he was
unaware of the 1993 allegations evidently made by subordinates that Dr. Mitchell skewed
evidence to benefit the prosecution.
Although Morrison candidly admitted that if he had known that information, he
might have been more vigorous in challenging Dr. Mitchell's credibility, he testified that
it is unlikely that this would have been very helpful because the cause of death was
"pretty obvious" in this case. Morrison also testified that calling the defense's medical
expert "would have been counterproductive" because his opinions were consistent with
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Dr. Mitchell's opinions regarding the victim's cause of death. Furthermore, Morrison
testified that focusing on the cause of the victim's death would not have been helpful to
Bollinger's defense that somebody else started the fire that killed her. Consequently,
Morrison made a strategic decision not to call the defense's medical expert or focus on
the victim's cause of death.
Based on the totality of the circumstances, we find that trial counsel articulated a
reasonable strategic basis for how he handled the medical evidence and examination of
Dr. Mitchell at trial. Morrison testified that he was very familiar with Dr. Mitchell's
report and that he "spent a long time" cross-examining Dr. Mitchell at trial. It is highly
unlikely that a more vigorous cross-examination of the State's medical expert or putting
more focus on the cause of the victim's death would have benefited Bollinger's defense
that someone else started the fire, and it may have indeed been counterproductive.
Moreover, Bollinger has failed to show that the strategic decisions made prior to
and at trial prejudiced his right to a fair trial. Under the circumstance presented in this
case, neither Dr. Mitchell's credibility nor the victim's cause of death were crucial issues
and focusing on them at trial would likely have diverted the jury's attention from
Bollinger's theory of defense. As discussed above, an ineffective assistance of counsel
claim fails if the defendant cannot establish sufficient prejudice to the outcome of the
case. See Edgar v. State, 294 Kan. 828, 843-44, 283 P.3d 152 (2012).
Under the totality of the circumstances, we do not find the performance of trial
counsel regarding the victim's cause of death was deficient. Likewise, we do not find that
Bollinger suffered prejudice as a result of the alleged ineffectiveness of counsel relating
to the evidence regarding the victim's cause of death. Specifically, we do not find that
there is a reasonable probability the jury would have reached a different result absent the
alleged deficient performance of trial counsel relating to the impeachment of Dr. Mitchell
or the presentation of additional evidence regarding the victim's cause of death.
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CONCLUSION
In conclusion, we find—based on the totality of the evidence—that Bollinger fails
under both prongs of the Strickland test. First, we find that Bollinger has failed to
establish that his trial counsel's performance was deficient. Second, we find that he has
failed to establish that the alleged deficiencies of trial counsel prejudiced his right to a
fair trial. We, therefore, affirm the district court.
Affirmed.
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