NOT DESIGNATED FOR PUBLICATION
No. 124,307
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
TRAVIS SAMEK,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed August 5,
2022. Affirmed.
Dionne M. Scherff, of Joseph, Hollander & Craft LLC, of Overland Park, for appellant.
Claire Kebodeaux, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, for appellee.
Before GREEN, P.J., SCHROEDER and CLINE, JJ.
PER CURIAM: Travis Samek appeals from the district court's denial of his K.S.A.
60-1507 motion. He alleges his trial counsel was ineffective for a number of reasons,
which can generally be categorized as: (1) failure to investigate potentially helpful
evidence; (2) failure to make or file motions; (3) failure to object to certain evidence at
trial; and (4) cumulative error. Upon a careful and extensive review of the record, we find
no error and affirm.
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FACTS
The full factual and procedural history of the underlying criminal case is set forth
in State v. Samek, No. 118,055, 2019 WL 1087258 (Kan. App. 2019) (unpublished
opinion). Relevant to this appeal, Samek was charged with two counts of rape and one
count each of aggravated indecent liberties with a child and aggravated criminal sodomy
for acts committed in 2013. Samek's first trial resulted in a hung jury, and the trial court
declared a mistrial. In his second trial, a jury convicted him of all four counts as charged.
The trial court imposed a total controlling sentence of lifetime imprisonment without the
possibility of parole for 50 years. On direct appeal, another panel of our court affirmed
Samek's convictions and prison sentence but vacated the district court's imposition of
lifetime postrelease supervision and remanded to the district court with instructions to
prepare a corrected journal entry reflecting Samek was subject to lifetime parole. Samek,
2019 WL 1087258, at *5.
Samek filed a K.S.A. 60-1507 motion in April 2020, asserting his trial counsel
was ineffective for failing to:
• Investigate the mental capacity or request a psychiatric evaluation of the
victim, J.S.;
• investigate prior allegations J.S. purportedly made against her cousin;
• investigate or introduce evidence of J.S.'s prior crimes or acts of dishonesty;
• investigate threatening text messages allegedly sent to Samek by J.S.'s
stepfather;
• object to testimony by forensic interviewers;
• object to testimony from J.S. about events she claimed to remember two days
before trial;
• move for a directed verdict after the State's case-in-chief.
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Samek also alleged individual and collective deficiencies warranted reversal of his
convictions and sentence.
At the evidentiary hearing on Samek's motion, both he and his trial counsel,
KiAnn Caprice, testified along with his criminal defense expert, Christopher Brown.
After taking notice of the trial court records and considering the testimony and exhibits
presented at the evidentiary hearing, as well as the parties' proposed findings of fact and
conclusions of law, the district court issued a written decision denying Samek's motion.
Additional facts are set forth as necessary.
ANALYSIS
Samek argues the district court erred in denying his K.S.A. 60-1507 motion,
alleging his trial counsel was ineffective for failing to:
• Seek a pretrial psychiatric evaluation of J.S.;
• investigate prior allegations J.S. made against her cousin;
• investigate J.S.'s prior crime of dishonesty—a diversion for theft;
• investigate threatening text messages sent to Samek by J.S.'s stepfather;
• contemporaneously object to testimony by the forensic interviewers; and
• make other objections and trial motions.
He further asserts cumulative error denied him a fair trial.
Standard of Review and Applicable Legal Principles
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.
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Supreme Court Rule 183(j) (2022 Kan. S. Ct. R. at 242). An appellate court reviews the
district court's findings of fact to determine whether they are supported by substantial
competent evidence and are sufficient to support the district court's conclusions of law.
Appellate review of the district court's ultimate conclusions of law is de novo. Balbirnie
v. State, 311 Kan. 893, 897-98, 468 P.3d 334 (2020).
To be entitled to relief under K.S.A. 2021 Supp. 60-1507, the movant must
establish by a preponderance of the evidence either: (1) "the judgment was rendered
without jurisdiction"; (2) "the sentence imposed was not authorized by law or is
otherwise open to collateral attack"; or (3) "there has been such a denial or infringement
of the constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack." K.S.A. 2021 Supp. 60-1507(b) (grounds for relief); see Supreme Court
Rule 183(g) (preponderance burden).
Claims of ineffective assistance of trial counsel are analyzed under the two-prong
test articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), and adopted by the Kansas Supreme Court in Chamberlain v. State, 236
Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first prong, the defendant must show
how defense counsel's performance was deficient. If successful, the court then "'moves to
the second prong and determines whether there is a reasonable probability that, without
counsel's unprofessional errors, the result would have been different.'" Khalil-Alsalaami
v. State, 313 Kan. 472, 485, 486 P.3d 1216 (2021).
"To establish deficient performance under the first prong, 'the defendant must
show that counsel's representation fell below an objective standard of reasonableness.'
[Citation omitted.]" 313 Kan. at 485. Judicial scrutiny of counsel's performance in a
claim of ineffective assistance of counsel '"must be highly deferential. . . . A fair
assessment of [counsel's] performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
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conduct, and to evaluate the conduct from counsel's perspective at the time.'" 313 Kan. at
485-86.
A court considering a claim of ineffective assistance of counsel must strongly
presume defense counsel's conduct fell "'within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, [counsel's] action "might be considered sound trial strategy."'" 313 Kan. at
486. If counsel has made a strategic decision after making a thorough investigation of the
law and the facts relevant to the realistically available options, then counsel's decision is
virtually unchallengeable. Strategic decisions made after a less than comprehensive
investigation are reasonable exactly to the extent that reasonable professional judgment
supports the limitations on the investigation. State v. Butler, 307 Kan. 831, 854, 416 P.3d
116 (2018). Samek bears the burden to show his trial counsel's alleged deficiencies were
not the result of strategy. See Sola-Morales v. State, 300 Kan. 875, 888, 335 P.3d 1162
(2014).
Under the second prong, the defendant must show defense counsel's deficient
performance was prejudicial. To establish prejudice, the defendant must show
"with reasonable probability that the deficient performance affected the outcome of the
proceedings, based on the totality of the evidence. '"A reasonable probability is a
probability sufficient to undermine confidence in the outcome. A court hearing an
ineffectiveness claim must consider the totality of the evidence before the judge or jury."'
[Citations omitted.]" Khalil-Alsalaami, 313 Kan. at 486.
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Discussion
Failure to file a motion for psychiatric evaluation of J.S.
Samek argues Caprice was ineffective for failing to file a pretrial motion for a
psychiatric evaluation of J.S. pursuant to State v. Gregg, 226 Kan. 481, 489-90, 602 P.2d
85 (1979). A trial court has discretion to order a psychiatric evaluation of a witness based
on its consideration of the following nonexclusive factors:
"(1) whether there was corroborating evidence of the complaining witness' version of the
facts,
"(2) whether the complaining witness demonstrates mental instability,
"(3) whether the complaining witness demonstrates a lack of veracity,
"(4) whether similar charges by the complaining witness against others are proven to be
false,
"(5) whether the defendant's motion for a psychological evaluation of the complaining
witness appears to be a fishing expedition, and
"(6) whether the complaining witness provides an unusual response when questioned
about his or her understanding of what it means to tell the truth. [Citations omitted.]"
State v. Berriozabal, 291 Kan. 568, 581, 243 P.3d 352 (2010).
Samek asserts Caprice should have filed a Gregg motion because J.S. had
documented behavioral issues and mental disabilities and Samek had advised Caprice of
J.S.'s school records, reflecting she had been diagnosed with a low I.Q. and required
special accommodations for her intellectual issues. Samek testified he and his family
advised Caprice prior to trial that J.S. was extremely low functioning and qualified for
special education services at her school.
Caprice testified she was aware of J.S.'s mental disability but made a strategic
decision not to pursue a psychiatric evaluation. She believed the motion would have had
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little chance of success and could have undermined her defense strategy. Caprice
believed confronting J.S. with questions about her mental capacity could have made J.S.
and her mother more dynamic witnesses for the State. Caprice also believed it would be
counterproductive to present evidence to the jury that an alleged child sex offense victim
was intellectually disabled. Brown also agreed a reasonable defense attorney might "not
want to put before a jury that a child victim is [intellectually disabled]." Caprice believed
the best defense strategy was to deny the allegations, assert J.S. was manipulated by her
mother and stepfather into accusing Samek, attack the credibility of the forensic
interviewers, and point out inconsistencies in the various witnesses' statements. Because
this strategy had resulted in a hung jury in the first trial, she believed it was the best tactic
for the second jury trial.
Just as he did before the district court, Samek relies on State v. Simpson, 299 Kan.
990, 327 P.3d 460 (2014), in support of this argument. However, the district court
properly rejected this argument, finding Simpson distinguishable. Simpson does not speak
to the merits of whether a psychiatric evaluation should have been ordered. Instead, the
issue was whether the district court properly suppressed evidence of a complaining child
witness when it ordered her to submit to a psychiatric evaluation and her mother refused.
The State filed an interlocutory appeal. Our Supreme Court found the record was
insufficient to support the State's claims of error and upheld the district court's decision
on the basis the State failed to request the district court make sufficient findings. 299
Kan. at 993-94. Simpson provides no persuasive support for Samek's argument.
Here, the district court properly applied the relevant factors and determined a
Gregg motion would not have been granted if filed because:
• Other witnesses, including J.S.'s sisters, corroborated her testimony;
• While school records showed J.S. had a low I.Q., there was no evidence of
mental instability;
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• J.S. gave detailed statements about the events, and none of the
inconsistencies Samek pointed to showed a lack of veracity in the
testimony itself;
• While Samek alleged J.S. made prior allegations against her cousin, the
nature of those allegations was unclear, and it was never proven the
allegations were false;
• Given the lack of evidence regarding mental instability or legitimate
questions about J.S.'s veracity, a motion for psychiatric evaluation would
appear to be a fishing expedition; and
• In reviewing the transcripts of the first and second trials, nothing in J.S.'s
testimony reflected she gave unusual responses or did not understand what
it meant to tell the truth.
Samek fails to meaningfully address the district court's thorough and well-founded
explanation on these points. Thus, he effectively fails to show the district court erred in
finding no prejudice. Still, Caprice's reasons for not filing the motion appears to be a
strategic decision made after a thorough review of the relevant facts and law and
realistically available options. Accordingly, her actions in this regard are virtually
unchallengeable. See Butler, 307 Kan. at 854. The district court properly concluded
Caprice's performance was not deficient. But even assuming Caprice should have filed a
Gregg motion, the district court properly concluded the motion would have been denied;
therefore, Samek cannot show prejudice.
Failure to investigate prior allegations by J.S.
Samek argues Caprice was ineffective for failing to investigate prior allegations
J.S. made about her cousin. His argument on this point is unpersuasive. At the evidentiary
hearing, Samek testified he told Caprice about an "incident" between J.S. and her cousin.
Samek offered no further detail about the alleged incident. Caprice testified she discussed
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the alleged incident with Samek but did not believe there was any evidence that could be
brought forth to the jury given Kansas' rape shield law (K.S.A. 2021 Supp. 21-5502).
Samek failed to explain the nature of the incident, what evidence might have been
uncovered with further investigation, and how this would have affected the verdict. The
district court properly concluded Samek did not meet his burden to establish error or
prejudice. In his brief, Samek similarly fails to offer any detail on the prior allegations.
Accordingly, he cannot show any error in the district court's decision on this issue.
Failure to investigate J.S.'s prior crime of dishonesty
Samek also claims Caprice was deficient for failing to investigate issues with J.S.
lying at school and a juvenile diversion that resulted from J.S. stealing from another
student at her school. He testified he advised Caprice of these issues. Caprice
acknowledged she was advised of J.S. stealing while at school. However, she did not
believe she could bring the evidence before the jury because J.S. received a diversion;
therefore, it was not a conviction. She also believed the evidence was not helpful to the
defense. Caprice said she discussed the issue with Samek and he agreed with her overall
strategy. Caprice stated: "As a defense attorney who's dealt with sex victims and these
types of cases, it's an absolute death knell to say, 'Little rape victim, you're a thief and
you're [intellectually disabled], so you're a liar too.'" Caprice also testified: "I think it's
strategically a bad decision to say, 'My [alleged victim] can't say that I touched her
sexually because she's a thief.' No jury is going to think that that is a good defense to
what's being alleged. So for strategic reasons, I wasn't going to do that either."
The district court found Caprice made a reasonable strategic decision. While
reasonable defense attorneys might disagree whether Caprice's decision was the best
strategy, it does not appear objectively deficient. Further, Samek fails to explain how
J.S.'s diversion for theft would have been legally admissible. As our Supreme Court
explained in State v. Sanders, 263 Kan. 317, 320, 949 P.2d 1084 (1997), a diversion is
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not a conviction and, therefore, cannot be admitted as impeachment evidence under
K.S.A. 60-421; rather, evidence of a diversion demonstrates a prior bad act, which is
inadmissible as evidence of a witness' veracity under K.S.A. 60-422(d). During the
evidentiary hearing, Samek also vaguely alluded to issues with J.S. lying at school;
however, he fails to meaningfully address in his brief whether this information could
have been additionally or alternatively admitted as evidence bearing on J.S.'s veracity.
Accordingly, Samek has not demonstrated error or prejudice.
Failure to investigate threatening text messages by J.S.'s stepfather
Samek asserts Caprice was deficient in failing to investigate threatening text
messages he allegedly received from J.S.'s stepfather. Samek alleged the text messages
included threats by J.S.'s stepfather to "put [Samek] out of [his children's] lives," but
Samek offered no further details as to the nature or number of messages. Samek never
introduced the text messages into evidence at the hearing on his motion. The exact
contents of the messages are unknown, and the whereabouts of Samek's phone is
unknown. Caprice did not recall ever being given or seeing any text messages, nor was
she aware of their contents. Caprice said if she had been provided the messages or made
aware of specific threats in the messages, she would have investigated further to either
admit the messages at trial or to see if they could be obtained through Samek's phone
records. However, she did not believe one or two text messages would have made a
difference because evidence was brought out in cross-examination about the animosity
between J.S.'s stepfather and Samek. Samek also testified at trial he had a contentious
relationship with J.S.'s stepfather prior to J.S. making the allegations.
The district court concluded Caprice was not deficient in her performance because
Samek did not provide her with the text messages or his phone and she did not have
sufficient information to warrant further investigation. The district court relied on the
reasoning in United States v. King, 936 F.2d 477, 480 (10th Cir. 1991), in finding Samek
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could not maintain a claim Caprice was ineffective when he failed to give her something
she would have needed to justify further investigation. Even assuming Caprice's
performance was deficient, the district court concluded Samek could not establish
prejudice because the purported content of the text messages—threats by J.S.'s stepfather
to remove Samek from his children's lives—would have been cumulative evidence of
Samek's testimony about the anger and animosity directed toward him by his children and
J.S.'s mother and stepfather.
Because Samek never introduced the messages into evidence, we cannot
determine whether there is a reasonable probability the outcome would have been
different. Samek fails to establish Caprice's performance was deficient.
Failure to contemporaneously object to testimony of forensic interviewers
Prior to trial, Samek filed a motion to exclude the testimony of forensic
interviewers, arguing the interview methodology was flawed; therefore, the interviewers'
testimony should be inadmissible under K.S.A. 2021 Supp. 60-456(b) and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-94, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993). The trial court denied the motion, and, when the interviewers testified at
trial, Caprice did not renew the objection. Caprice stated she did not renew the objection
at trial because "[she] knew what the ruling already was. [She] knew what the ruling from
the bench would have been."
Samek argues Caprice was deficient in failing to renew the objection, which later
resulted in a finding the issue was not properly preserved for appeal. Samek, 2019 WL
1087258, at *4. Samek may be correct, but Caprice provided a valid reason for her trial
strategy on why she did not want to call further attention to the issue by objecting. She
also explained the testimony of the forensic interviewers helped her defense strategy
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because she was able to use the interviewers' testimony to show inconsistencies in the
statements J.S. and her sisters made to the interviewers.
Ultimately, we decline to decide whether Caprice's failure to object was deficient
because Samek has shown no prejudice. See Edgar v. State, 294 Kan. 828, 843, 283 P.3d
152 (2012) (claim of ineffective assistance of counsel can be disposed of without
considering deficient performance if defendant cannot show prejudice). In State v.
Ballou, 310 Kan. 591, 607-08, 448 P.3d 479 (2019), our Supreme Court held a forensic
interview does not constitute expert testimony under Daubert or K.S.A. 2018 Supp. 60-
456(b). Even if the issue had been preserved, Samek would not have been entitled to
relief in his direct appeal.
Failure to object to testimony about J.S.'s credibility
Samek argues: "At trial, the State's experts gave testimony passing on the
credibility of the complaining witness." He asserts Caprice failed to properly object to
this testimony. However, Samek does not specifically identify the witnesses or the
objectionable testimony. We find Samek has waived the argument due to inadequate
briefing. See State v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622 (2021) (issues not
adequately briefed deemed abandoned).
But even if we considered his argument on the merits, we are still unpersuaded.
From our review of the record, it appears Samek is referring to Virginia Lewis-Brunk's
testimony that, based on her experience, it was not unusual for a child victim not to fully
disclose everything that happened the first time the victim talks about it, and she was not
surprised J.S. disclosed more after the initial interview. Samek's claim Caprice was
ineffective because she did not object to the testimony as improper opinion testimony
bearing on a witness' credibility is largely conclusory and ultimately unavailing. This is
because Caprice objected on other grounds, the objection was eventually sustained, and
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the jury was instructed to disregard Lewis-Brunk's testimony regarding whether she was
surprised by the additional allegations. Samek cannot show error or prejudice when the
testimony was successfully objected to and removed from the record with the jury being
instructed to disregard the testimony.
Failure to object and make trial motions
Samek argues Caprice was ineffective for failing to object when J.S. testified
about "newly disclosed information of criminal acts by Mr. Samek." However, Samek
fails to specify what this new information was. We also find this point abandoned due to
improper briefing. See Gallegos, 313 Kan. at 277. But even if we considered the point,
we are likewise unpersuaded. It seems Samek is referring to allegations J.S. made in the
second trial that Samek performed oral sex on her and attempted to perform anal sodomy
on her. J.S. claimed to remember these events only two days before trial. From the record
we cannot find where Caprice was ever asked about her reasons for not objecting to this
testimony. However, Brown agreed it could have been a strategic decision to demonstrate
yet another inconsistency in J.S.'s statements. And Caprice did, in fact, bring up this
inconsistency in her cross-examination of J.S., her mother, and stepfather, and Caprice
discussed it in closing argument. Samek fails to show Caprice's lack of objection was
deficient, and he fails to properly argue or establish prejudice.
Samek further asserts Caprice was deficient for failing to move for a directed
verdict at the close of the State's case-in-chief. His argument is unpersuasive. Although
such a motion is generally made, it is not required. Caprice testified she did not make the
motion because she believed it was unnecessary and would not make such a motion
unless she believed it would succeed. Caprice's decision was reasonable given the
evidence presented to the jury. On direct appeal, the panel found sufficient evidence
supported Samek's convictions. Samek, 2019 WL 1087258, at *5. Essentially the same
legal standard applies to a motion for directed verdict at trial as a challenge to the
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sufficiency of the evidence on appeal. Compare State v. Aguirre, 313 Kan. 189, 209, 485
P.3d 576 (2021) (sufficiency of the evidence), with State v. Cottrell, 310 Kan. 150, 163,
445 P.3d 1132 (2019) (motion for directed verdict). Samek has failed to show error or
prejudice. And even if the motion had been made, given the underlying facts, the district
court would have denied it and submitted the charges to the jury.
No cumulative error
In his final issue, Samek asserts cumulative error denied him a fair trial. We find
this issue has been abandoned due to inadequate briefing. See Gallegos, 313 Kan. at 277.
Moreover, cumulative error was raised in Samek's direct appeal and rejected by the panel.
Samek, 2019 WL 1087258, at *5. A K.S.A. 60-1507 motion cannot be used to seek a
second appeal or to raise issues which have already been litigated or should have been
argued on direct appeal. See State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011)
(defendant must raise all available issues on direct appeal); Supreme Court Rule
183(c)(3) (2022 Kan. S. Ct. R. at 243) ("A proceeding under K.S.A. 60-1507 ordinarily
may not be used as a substitute for direct appeal involving mere trial errors or as a
substitute for a second appeal."). Samek fails to argue or explain how any claim of
cumulative error in his trial counsel's performance is substantively different from his
claim of cumulative error on direct appeal.
Affirmed.
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