Robinson v. State

NOT DESIGNATED FOR PUBLICATION

No. 122,089

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ELGIN R. ROBINSON JR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BENJAMIN BURGESS, judge. Opinion filed September 9,
2022. Affirmed.

Elgin R. Robinson Jr., appellant pro se.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON and HURST, JJ.

ATCHESON, J.: A jury sitting in Sedgwick County District Court in 2008
convicted Defendant Elgin R. Robinson Jr. of capital murder and a host of other felonies
for hiring another man to murder C.B., his pregnant 14-year-old girlfriend. The State's
theory was that Robinson feared he would be charged with statutory rape if C.B. gave
birth because genetic testing would show him to be the baby's father. On direct appeal,
the Kansas Supreme Court affirmed the convictions and Robinson's controlling sentence
of life in prison without parole. State v. Robinson, 293 Kan. 1002, 1006, 270 P.3d 1183
(2012) (Robinson I).

1
 Robinson then filed a motion for habeas corpus relief under K.S.A. 60-1507 on the
grounds the lawyers representing him leading up to and during the trial were
constitutionally ineffective in multiple ways, violating his right to counsel guaranteed in
the Sixth Amendment to the United States Constitution. The district court appointed
Michael Brown to represent Robinson and denied the motion after holding a
nonevidentiary hearing. Robinson appealed that ruling, and this court affirmed the district
court. Robinson v. State, No. 111,923, 2016 WL 1169381, at *1 (Kan. App. 2016)
(unpublished opinion) (Robinson II). The Kansas Supreme Court declined to review our
decision.

In the face of that adverse outcome, Robinson filed another 60-1507 motion
attacking the work of Brown and of Michael Whalen and Krystle Dalke, who handled the
appeal, as legally deficient. The district court summarily denied the motion without
appointing a lawyer for Robinson or holding a hearing. Representing himself, as he did in
the district court, Robinson has appealed the denial of his second 60-1507 motion, and
that is what we now have in front of us. As with many litigants representing themselves,
Robinson's appellate brief is long on rhetoric and noticeably short of
well-crafted legal arguments. We find no basis warranting relief for Robinson and,
therefore, affirm the district court.

Our discussion assumes the reader's familiarity with the facts of the crime, as
developed at trial and outlined in the earlier appellate decisions, as well as the procedural
progression of the direct criminal case and the first 60-1507 challenge. See Robinson I,
293 Kan. at 1006-12; see generally Robinson II, 2016 WL 1169381. We do not endeavor
to reconstruct that factual and procedural history here.

2
 ANALYSIS

Legal Principles Governing 60-1507 Motions

When a district court summarily denies a 60-1507 motion, we review the ruling
without any particular deference, since it turns on the earlier record and the allegations in
the motion. We can review those materials just as well as the district court can, and the
district court has reconciled no conflicting testimony or other evidence in arriving at its
decision. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).

The Kansas Supreme Court has held that a convicted criminal defendant may
bring a second or successive 60-1507 motion in exceptional circumstances. Those
circumstances include inadequate legal representation in the earlier 60-1507 motion. See
Albright v. State, 292 Kan. 193, 207, 251 P.3d 52 (2011); Robertson v. State, 288 Kan.
217, 228-32, 201 P.3d 691 (2009). The right to adequate representation in a 60-1507
proceeding rests on a common-law rule construing the statutes applicable to habeas
corpus rather than on a constitutional guarantee. Albright, 292 Kan. at 200-01. The
Kansas appellate courts, however, apply the constitutional standard for adequate legal
representation enunciated in Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), and repeatedly recognized in our decisions to assess a
lawyer's performance in a 60-1507 proceeding. See State v. Phillips, 312 Kan. 643, 676,
479 P.3d 176 (2021); Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468
(1985). What has become known as the Strickland test, therefore, governs the lawyers'
handling of the first 60-1507 motion in the district court and on appeal. We set out those
legal principles before turning to the particular arguments Robinson has raised in his
appeal. Those principles apply to both trial and appellate lawyers. See Miller v. State, 298
Kan. 921, 929-30, 318 P.3d 155 (2014).

3
 To prevail on a 60-1507 motion, a convicted defendant must show that his or her
legal representation "fell below an objective standard of reasonableness" guaranteed by
the right to counsel in the Sixth Amendment to the United States Constitution and that
absent the substandard lawyering there is "a reasonable probability" the outcome in the
criminal case would have been different. Strickland, 466 U.S. at 688, 694; Phillips, 312
Kan. at 676; Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014).
Reasonable representation demands that degree of "skill and knowledge as will render the
[proceeding] a reliable adversarial testing process." Strickland, 466 U.S. at 688. A
reasonable probability of a different outcome "undermine[s] confidence" in the result and
marks the criminal proceeding as fundamentally unfair. 466 U.S. at 694. The movant,
then, must prove both inadequate representation and sufficient prejudice attributable to
that representation to materially question the resulting convictions. To reiterate, the
performances at issue here are Brown's representation of Robinson in the district court on
the initial 60-1507 motion and Whalen and Dalke's representation of him in the appeal of
the district court's denial of that motion.

As the United States Supreme Court and the Kansas Supreme Court have stressed,
review of the representation should be deferential and hindsight criticism tempered lest
the evaluation of a lawyer's performance be unduly colored by lack of success
notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689-90; Holmes
v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should a lawyer's representation
be considered substandard when he or she investigates the client's circumstances and then
makes a deliberate strategic choice among arguably suitable options. Strickland, 466 U.S.
at 690-91. Whether a lawyer had made reasoned strategic decisions bears on the
competence component of the Strickland test.

Regardless of the inadequacy of legal representation, a 60-1507 motion fails if the
movant cannot establish substantial prejudice. And the district court properly may deny a
motion that falters on the prejudice component of the Strickland test without assessing

4
the sufficiency of the representation. Strickland, 466 U.S. at 697 ("If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed."); see Edgar v. State, 294 Kan. 828, 843-
44, 283 P.3d 152 (2012); Oliver v. State, No. 106,532, 2013 WL 2395273, at *5 (Kan.
App. 2013) (unpublished opinion). In other words, even assuming a criminal defendant's
legal representation fell below the Strickland standard, he or she is not entitled to habeas
corpus relief if the result would have been no different with competent counsel. We, of
course, may affirm the denial of relief based on the lack of demonstrable prejudice.

In general, the courts look at a lawyer's overall performance in determining
whether the representation was adequate, meaning that a minor mistake or even a number
of minor mistakes do not breach the duty owed. See Harrington v. Richter, 562 U.S. 86,
110, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011); Kimmelman v. Morrison, 477 U.S. 365,
386, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986); Bland v. Hardy, 672 F.3d 445, 450 (7th
Cir. 2012) ("[T]he question under Strickland is not whether the lawyer made a mistake,
even a serious one; it is whether the lawyer's overall performance was professionally
competent."). But a single error causing sufficiently substantial legal harm to the
defendant to call into question an adverse outcome will suffice. See Miller, 298 Kan. at
938-39.

Robinson's Points on Appeal

We now turn to the particular deficiencies Robinson attributes to Brown and to the
appellate lawyers representing him in Robinson II and consider them against the legal
precepts governing 60-1507 proceedings.

5
 Trial Lawyers' Purported Conflict of Interest

Robinson contends Brown failed to fully explore a purported conflict his trial
lawyers labored under because of inappropriate conduct by a private investigator they had
hired to work on the case. Emery Goad, the investigator, leaked information to The
Wichita Eagle in May or June 2008 to the effect Robinson had intimate relationships with
two other underage girls. The newspaper printed a story based in part on the leak in June
2008, about four months before the trial. When the trial lawyers found out what Goad had
done, they fired him. There are some discrepancies in the record as to whom the lawyers
reported Goad's improper conduct. Robinson, however, filed an ethical complaint against
his trial lawyers. As we pointed out in Robinson II:

"According to correspondence from the Kansas Disciplinary Administrator's Office in the
record, the Disciplinary Administrator found no ethical violation on the part of the
lawyers because they had no advance knowledge of the investigator's communications
with the reporter, did not condone the investigator's actions, and immediately fired the
investigator when they learned what he had done." 2016 WL 1169381, at *6.

Brown and the lawyers handling the appeal in Robinson II asserted the trial
lawyers had a conflict because their personal interest lay in not revealing Goad's
inappropriate conduct, thereby dividing their loyalties between Goad and Robinson. But
they never fleshed out the argument with an explanation of how exactly the trial lawyers
were enmeshed in some conflict, especially when they discharged Goad. Nor did the
argument advance concrete examples of how the trial lawyers' representation of Robinson
was diluted as a result. We, therefore, found the point unavailing. Robinson II, 2016 WL
1169381, at *7. In his second 60-1507 motion and now on appeal, Robinson revisits the
issue in an effort to show that Brown's handling of it fell below the standard for adequate
representation.

6
 We begin with some background on the law governing conflicts of interest. The
courts understandably recognize that a criminal defendant is entitled to be represented by
a lawyer without divided loyalties and a defense lawyer laboring under such a conflict
will fall short of the Sixth Amendment guarantee of adequate representation. Mickens v.
Taylor, 535 U.S. 162, 166-67, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002); Cuyler v.
Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Sola-Morales v.
State, 300 Kan. 875, 883, 335 P.3d 1162 (2014). The courts have identified three
recurrent situations giving rise to impermissible "active" conflicts: (1) the district court
permits a lawyer to represent multiple clients with antagonistic interests in the same
proceeding despite an objection to the representation; (2) a lawyer represents multiple
clients but no objection has been lodged; and (3) the representation of a current client
conflicts either with a duty owed a former client or with the lawyer's own personal or
financial interests. Sola-Morales, 300 Kan. at 883-84. Robinson tries to fit his conflict
claim into the personal interest portion of the third category.

In addressing this point, we follow the lead of the Robinson II panel and assume
without deciding that his trial lawyers had such a personal conflict as a result of the
private investigator's leak to the newspaper. But, like the earlier panel, we have difficulty
seeing any active conflict, since the lawyers promptly dismissed the investigator from the
defense team well before trial. Robinson II, 2016 WL 1169381, at *7.

The Kansas Supreme Court has commonly referred to the third category of
conflicts as the "Mickens reservation" because the United States Supreme Court has not
expressly identified whether the defendant must show merely an adverse effect on his or
her representation, as required under Cuyler, or must show sufficiently deficient
representation to undermine confidence in the outcome of the criminal case, as required
under Strickland, to obtain relief. Fuller v. State, 303 Kan. 478, 487, 363 P.3d 373
(2015); Sola-Morales, 300 Kan. at 884. The Kansas Supreme Court has yet to resolve the
Mickens reservation by endorsing one or the other standard. See State v. Moyer, 309 Kan.

7
268, 279-80, 434 P.3d 829 (2019) (recognizing lack of governing standard); Nicks v.
State, No. 122,386, 2022 WL 2112427, at *3-4 (Kan. App. 2022) (unpublished opinion)
(noting governing standard remains "an open question"). Here, again, we borrow from
the Robinson II panel and assume the adverse effect standard would apply to any decision
of the trial lawyers animated by what we have assumed to be a conflict of interest under
the Mickens reservation. We do so only because that standard is more favorable to
Robinson. Robinson II, 2016 WL 1169381, at *7. To satisfy the Cuyler standard,
Robinson would have to show his lawyers either abandoned or never pursued an
objectively plausible defense strategy, thereby adversely affecting his representation. See
Sola-Morales v. State, No. 118,451, 2019 WL 6041443, at *7 (Kan. App. 2019)
(unpublished opinion).

At this juncture, then, Robinson contends Brown mishandled the original 60-1507
motion by failing to cite and argue specific purported failings of his trial lawyers rooted
in their purported Mickens reservation conflict of interest. We move on to what Robinson
now identifies as those trial decisions.

At trial, the State called Everett Gentry who testified Robinson hired him to kill
C.B. Gentry, in turn, paid Theodore Burnett to help him. Gentry knew C.B. and lured her
into a car with him and Burnett. Instead of taking C.B. to meet Robinson as he claimed he
would, Gentry made several stops and eventually drove to a rural area of Butler County,
where the two men strangled C.B. and buried her body in a shallow grave that was
discovered about a week later. Robinson testified in his own defense and acknowledged
his intimate relationship with C.B. but denied any involvement in arranging her murder.
Robinson was in the Kansas City area when C.B. was killed.

As we outlined in Robinson II, the trial lawyers offered the jury two alternative
motives for Gentry to have acted on his own in murdering C.B. First, Robinson had
banished Gentry from his burgeoning music promotion business, and Gentry knew

8
Robinson was fearful of being prosecuted for statutory rape after C.B. gave birth, so he
killed her to get back in Robinson's good graces. Second, and quite to the contrary,
Gentry murdered C.B. as revenge for Robison's decision to oust him from the business.

In preparing for trial, the lawyers had a video prepared showing the route Gentry
and Burnett traveled with C.B., including what Gentry described as the murder scene.
The lawyers did not introduce the video at trial. Robinson now contends they chose not to
because they would have had to call Goad as a witness to lay a foundation for the video
and, as a result, his leak to the newspaper would have been exposed. Robinson asserts the
video would have undermined Gentry's testimony (and his credibility) because the spot of
the murder is just off a well-traveled road and, thus, readily visible to passing motorists.
So, according to Robinson, the jurors would have dismissed Gentry as an inveterate liar
and, thus, returned not guilty verdicts. On Robinson's theory, Brown was demonstrably
ineffective for failing to make this argument in the initial 60-1507 proceeding.

Robinson's contention fails on multiple fronts. Although the record indicates a
video had been prepared ahead of trial, the video itself is not in the record. We do not
know what exactly the video depicts; Robinson may or may not have correctly described
the content. That's not good enough, since Robinson bears the burden here. See State v.
Bryant, 285 Kan. 970, 980, 179 P.3d 1122 (2008) (party appealing has obligation to
furnish adequate record to show claimed error). That alone dooms the point. In addition,
however, the record shows that Dwight Applegate, an associate of Goad's, participated in
videoing the route and prepared the copy that would have been presented in court.
Applegate would have been able to lay the foundation for the admission of the video
during trial. See State v. Mallett, No. 122,282, 2020 WL 7294282, at *4 (Kan. App.
2020) (unpublished opinion) (foundation to admit video or similar recording); 29A Am.
Jur. 2d Evidence § 977. Contrary to Robinson's suggestion, Goad would not have been a
necessary trial witness. That, too, independently undoes the contention. Finally, even if
the video showed what Robinson suggests about the murder location, it wouldn't have

9
had the impact on the jury he prophesizes. C.B. was strangled in a car after dark; quickly
passing motorists would not have realized what the two men were doing. The video
might have suggested Gentry wasn't very good at planning murders—something his own
testimony tended to establish—but it wouldn't have proved him to be a liar.

In short, the trial lawyers' decision not to offer the video (assuming it depicted
what Robinson asserts) did not adversely affect the defense at trial and, therefore, would
not support a claim for relief on a 60-1507 motion. There was other circumstantial
evidence implicating Robinson in arranging the murder of C.B. See Robinson I, 293 Kan.
at 1012 (Robinson made computer searches on how to kill a baby, on causing a
miscarriage, and on finding a missing person—consistent with the motive the State
ascribed to him.). Brown, therefore, did not inadequately represent Robinson in this
respect, since he had no obligation to pursue a legally empty point, and habeas corpus
relief cannot be premised on a lawyer's failure to raise a losing claim. See Littlejohn v.
State, 29 Kan. App. 2d 506, 507-08, 28 P.3d 448 (2001); Warren v. State, No. 123,547,
2022 WL 816313, at *3 (Kan. App. 2022) (unpublished opinion).

Alternative Motive for Gentry to Kill C.B.

Robinson now asserts his trial lawyers did not aggressively pursue a theory that
Gentry killed C.B. because he believed he was the father of her child. Although the issue
was unsuccessfully litigated in Robinson II, Robinson augments those arguments by
trying to tie the failure of his trial lawyers to their purported desire to keep Goad's
misconduct under wraps. But the connection he attempts to forge simply doesn't exist,
and he hasn't unearthed any evidence that would have been admissible during his trial to
support this third theory for Gentry's motive.

The notion that Gentry thought he may have fathered C.B.'s child traces to a
recorded statement Bridget Bush gave law enforcement officers to the effect that a man

10
known to her as Jay Gutta told her Gentry made such a comment in his presence months
earlier. Bush's statement is classic hearsay and would have been inadmissible at trial to
prove Gentry said any such thing. The record indicates Goad and the trial defense team
determined Jay Gutta was an alias of Larry Stewart and came up with past addresses for
Stewart. They either never found Stewart or found him and determined he would be
unhelpful as a trial witness. We don't know for sure.

Brown never offered an affidavit from Stewart to the effect he would have been
available to testify at Robinson's trial and recounting what Gentry may or may not have
said to him. The omission precluded Robinson from showing any possible prejudice in
his initial 60-1507 motion, since what Stewart might have testified to during the trial
remained no more than unsupported speculation resting on an inadmissible secondhand
account. See Robinson II, 2016 WL 1169381, at *4.

Robinson's current spin on this issue tumbles into the same vortex. He has
provided nothing from Stewart, so he hasn't shown any prejudice attributable to his trial
lawyers or to Brown. Moreover, his effort to link some coverup of Goad's leak to the
newspaper and the failure to produce Stewart as a trial witness makes no sense. If Stewart
had testified at trial, nothing about his appearance or testimony would have prompted a
disclosure (or a further disclosure) of Goad's conduct. Goad and the newspaper leak
would have been irrelevant to Stewart's testimony either on direct examination or cross-
examination.

Purported Prosecutorial Corruption

Robinson argues some form of "prosecutorial corruption" leading up to and during
his trial because the prosecutors did not disclose to the district court his trial lawyers'
purported conflict of interest arising from Goad's improper conduct. In turn, Robinson
contends Brown failed to adequately represent him in the initial 60-1507 proceeding by

11
overlooking this issue. We suppose prosecutors have a duty to call to the district court's
attention a possible conflict of interest on the part of a defense lawyer. The district court
can then inquire further to determine if an actual conflict exists. See State v. Stovall, 298
Kan. 362, 370, 312 P.3d 1271 (2013) (district court duty to inquire into possible conflict
of interest). By so acting, prosecutors head off potential problems that could undermine a
conviction if an actual conflict of interest went unaddressed. And in that way, they also
have a material incentive to speak up. Whether failing to act amounts to prosecutorial
error—or, to borrow Robinson's phrase, prosecutorial corruption—is not something we
need to decide.

As we have suggested, Goad's leak to the media and the response of Robinson's
trial lawyers in firing Goad did not create an active conflict of interest compromising
their representation of him. The various suggestions Robinson floated in Robinson II and
here do not establish an active conflict or any substantive detriment to his defense ahead
of or during the trial. In short, the prosecutors had nothing to flag for the district court
and did not err, let alone act corruptly.

Prosecutorial Error or Misconduct in Closing Argument

Robinson now offers what he characterizes as five instances of prosecutorial error
or misconduct during his trial that have not been raised before. From Robinson's papers,
we can't tell if he is asserting these as freestanding claims for relief or as substantive
deficiencies in Brown's representation of him in the original 60-1507 proceeding. If we
were to treat them as the former, they would fail because they would amount to trial
errors that should have been raised on direct appeal and are now procedurally barred.
Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009); Woods v. State, 52 Kan.
App. 2d 958, 964, 379 P.3d 1134 (2016). We, therefore, assume Robinson is arguing that
Brown inadequately represented him by failing to assert a 60-1507 claim that the lawyers
handling the direct criminal case were themselves legally ineffective for not raising those

12
purported instances of prosecutorial error. In that light, the argument entails preserved
60-1507 claims we may review.

As our first task, we consider whether any of the five statements the prosecutors
made to the jurors amount to sufficiently prejudicial error to have affected the outcome of
the trial. If they do not, then Robinson could not have suffered any legal harm redressable
in a 60-1507 proceeding. And, in turn, the point would be without merit.

In 2016, the Kansas Supreme Court revamped the analytical protocol for
reviewing claims of prosecutorial error or misconduct in State v. Sherman, 305 Kan. 88,
108-09, 378 P.3d 1060 (2016). Our court has held that the pre-Sherman method of
analysis applies in assessing claims arising from criminal cases in which the direct
appeals concluded before Sherman was decided. Brown v. State, 58 Kan. App. 2d 808,
831-32, 475 P.3d 689 (2020); Sumpter v. State, No. 117,732, 2019 WL 257974, at *11
(Kan. App. 2019) (unpublished opinion).

Before Sherman, the Kansas courts used a well-recognized, two-step test for
measuring the impropriety of the State's closing arguments in criminal cases:

"'First, the appellate court must decide whether the comments fall outside the wide
latitude afforded a prosecutor in discussing the evidence and the law. Second, if the
prosecutor has exceeded those bounds, the appellate court must determine whether the
improper comments constitute plain error; that is, whether the statements prejudiced the
jury to the extent the defendant was denied a fair trial. State v. McReynolds, 288 Kan.
318, 323, 202 P.3d 658 (2009) (outlining mode of analysis); see State v. King, 288 Kan.
333, 351, 204 P.3d 585 (2009) (noting considerable range permitted advocates, including
prosecutor, in arguing their causes in jury summations).'" State v. Franco, 49 Kan. App.
2d 924, 938, 319 P.3d 551 (2014) (quoting State v. Schreiner, 46 Kan. App. 2d 778, 793-
94, 264 P.3d 1033 [2011], rev. denied 296 Kan. 1135 [2013]).

13
If the argument fell outside what is proper, the courts then looked at three factors
to assess the degree of prejudice:

"'(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed
ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors. None of these three factors is individually controlling. Moreover, the third
factor may not override the first two factors unless the harmless error tests of both K.S.A.
60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v.
California, 386 U.S. 18, [22-24,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) [conclusion
beyond a reasonable doubt that the error . . . changed the result of the trial], have been
met.' [Citations omitted.]" State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).

For his first claim, Robinson points to a snippet of the State's rebuttal argument in
which the prosecutor told the jurors to give Robinson's testimony the weight it deserves
and added, "The State states to you it doesn't deserve very much." The initial part of the
remark offers a correct statement since the jury's function and duty is to weigh the
evidence, including witness testimony. State v. Betancourt, 301 Kan. 282, 305, 342 P.3d
916 (2015). But the second part amounts to an impermissible expression of the
prosecutor's opinion of Robinson's credibility. State v. Pribble, 304 Kan. 824, 835, 375
P.3d 966 (2016). The remark was not excused because the prosecutor referred to "the
State's" opinion rather than his own; the legal effect is the same.

But, as in Pribble, the comment was isolated and fleeting. It would have had little
or no effect on the jurors, especially coupled with the correct representation that they
were to make credibility determinations. In comparable circumstances, the Pribble court
found such an error to be harmless. 304 Kan. at 836. The same is true here. In turn,
neither Robinson's lawyers handling the direct criminal case nor Brown and the appellate
lawyers in Robinson II can be faulted for failing to raise a meritless point. See Miller, 298
Kan. at 932; Littlejohn, 29 Kan. App. 2d at 507-08; Warren, 2022 WL 816313, at *3.

14
 Robinson next contends the prosecutor erred in posing this question to the jurors
in the rebuttal argument: "Do you really believe what [Robinson] has to say?" The
question was obviously rhetorical and deployed as a device to suggest Robinson's lack of
credibility. It came amidst the prosecutor's explanation of why the evidence showed
Robinson to be unworthy of belief. In closing argument, prosecutors are permitted to
outline how and why the evidence renders certain witnesses, including a testifying
defendant, less than credible. See State v. Williams, 299 Kan. 911, 935-36, 329 P.3d 400
(2014); State v. Finley, 273 Kan. 237, 246, 42 P.3d 723 (2002). Likewise, rhetorical
questions are not inherently off-limits in closing arguments and may be quite appropriate
depending on the circumstances. See State v. Ortega, 300 Kan. 761, 777, 335 P.3d 93
(2014). The prosecutor's remark here was fair comment and, therefore, not error. Again,
Robinson gets no relief based on his lawyers' decisions to forgo pursuing a meritless
claim.

In the same vein, Robinson now disputes the propriety of the prosecutor
rhetorically asking the jurors, "Why wouldn't you believe Everett Gentry?" Robinson has
not provided a citation to the trial record where the prosecutor, in fact, posed that
question. We are not obligated to search the record to confirm Robinson's assertion and
could dismiss the point for that reason. State v. Kee, 27 Kan. App. 2d 677, 682, 6 P.3d
938 (2000); Lanier Trucking, Inc. v. Long, No. 120,061, 2020 WL 4722319, at *9 (Kan.
App. 2020) (unpublished opinion). In any event, the remark seems to be a bookend to the
rhetorical question about Robinson, and it, too, looks to be fair comment, especially
without some context suggesting otherwise.

Fourth, Robinson challenges the prosecutor's statement in closing argument that he
received telephone calls that C.B. was missing while he was in bed in Kansas City with
his former girlfriend and simply rolled over and went back to sleep. Robinson says the
assertion was factually inaccurate and inflammatory. He asserts he was out and about in
Kansas City and telephone records admitted at trial would confirm his location. But those

15
documents are not in the appellate record, so we cannot review them. Robinson does not
point us to anything else that would undermine the prosecutor's representation to the jury.
On that basis, we are disinclined to find any error in that part of the prosecutor's closing
argument. State v. Kidd, 293 Kan. 591, 601, 265 P.3d 1165 (2011); State v. Paul, 285
Kan. 658, 670, 175 P.3d 840 (2008); Harman v. State, No. 108,478, 2013 WL 3792407,
at *1 (Kan App. 2013) (unpublished opinion) ("When there are blanks in [the] record,
appellate courts do not fill them in by making assumptions favoring the party claiming
error in the district court.").

Moreover, the gist of the argument seemed to be Robinson was in no hurry to
follow up on the suggestion C.B. was missing or to return to Wichita because he expected
she would be missing and knew the reason why. That core message came within the
realm of fair comment and did not rest on Robinson's precise location or activity at the
time of the calls. Any resulting prejudice to Robinson would have been relatively
minimal, and any error harmless. Robinson's lawyers, therefore, had no obligation to
pursue this issue and did not inadequately represent him by failing to raise it.

Finally, Robinson challenges the prosecutor's request of the jurors to imagine what
C.B. might have said in several telephone calls she placed to Robinson in the hours
before her death. The prosecutor suggested she would have asked Robinson, "Where are
you?" and would have told him, "You said you'd be here." Some of the calls may have
been placed after Gentry and Burnett met C.B. and claimed they were taking her to meet
Robinson. Robinson again refers to his telephone records and says they would show he
never received any calls from C.B. We don't have those records, so his claim is
unsupported in that respect.

But Robinson also submits the type of jury argument—constructing hypothetical
scripts of what murder victims likely would have thought or said in the time leading up to
their deaths—is improper. On that, he is correct. State v. De La Torre, 300 Kan. 591, 610,

16
331 P.3d 815 (2014); State v. Kleypas, 272 Kan. 894, 1113-14, 40 P.3d 139 (2001). The
argument obviously ventures outside the trial evidence and necessarily becomes
impermissibly speculative. 272 Kan. at 1113-14. In addition, the scenarios are commonly
crafted in ways tending to inflame jurors' passions, especially since they have no direct
anchor in the evidence. De La Torre, 300 Kan. at 610.

Although this argument constituted prosecutorial error, we doubt it could be
considered reversable error under the pre-Sherman test. The prosecutor's hypothetical
was brief, consisting of three short sentences without further elaboration in an extended
closing argument at the end of a lengthy trial. In addition, the statements imputed to C.B.
in the hypothetical were comparatively benign—questioning where Robinson was, since
Gentry represented they were to meet. The scenario did not trade on the extraordinary
anguish and fear murder victims presumably experience when they realize their violent
deaths are imminent—the themes often played out in the imagined scripts. See Kleypas,
272 Kan. at 1112-13. In that respect, the argument was not gross and flagrant. But the
Kleypas decision condemning that type of argument was decided in 2001, so a prosecutor
trying a case in 2008 should have known it was improper. That at least suggests ill will.
The argument, however, would not have carried significant weight with the jurors in light
of the totality of the evidence. We have no doubt the outcome would have been the same
had the prosecutor refrained from arguing what C.B. presumably would have said to
Robinson. The argument was neither the linchpin of the State's case nor a persuasive
vehicle that would have carried the jurors across the threshold of their decision to
convict. Accordingly, Robinson cannot now obtain relief because his lawyers did not
pursue an error that would have proved harmless.

In the interest of completeness, we have also considered Robinson's claims of
prosecutorial error under the Sherman standard. The first step borrows from the earlier
protocol and asks whether the challenged comments fall within the broad discretion
afforded prosecutors in crafting fair jury arguments. If so, there is no prosecutorial error,

17
and the judicial inquiry ends. 305 Kan. at 109. The Sherman court jettisoned the three-
part test for reversable error to be applied to an improper argument in favor of simply
assessing whether the error deprived the defendant of a fair trial based on the entire
record. In making that determination, the court should apply the constitutional error
standard requiring the State to demonstrate beyond a reasonable doubt the improper
argument did not affect the outcome of the trial. 305 Kan. at 109.

Only the first and last challenges Robinson has made to the State's closing
argument amount to error. As we have already explained, neither was of such an
objectionable character to be reversible error under the pre-Sherman test. Largely for the
same reasons, considered against the trial evidence, we are persuaded beyond a
reasonable doubt neither argument alone nor both together played a role in the jury's
verdicts. Gentry's testimony and the surrounding circumstances painted a strong picture
of Robinson's guilt, including an entirely plausible motive. The erroneous arguments
were brief, superficial, and largely tangential to the controlling facts and law. They were
comparatively mild and could hardly be characterized as inflammatory, especially cast
against the truly despicable circumstances of C.B.'s murder established in the trial
evidence. To repeat, Robinson, therefore, has not shown grounds for relief under 60-
1507, since the errors he asserts would not have materially benefitted him even if they
had been raised in the direct criminal case or in his initial collateral attack.

Cumulative Error

In his appellate brief, Robinson makes an abbreviated argument that he should be
granted a new trial because of cumulative error. In a direct criminal appeal, a defendant
may argue the collective impact of multiple trial errors deprived him or her of a fair
proceeding even if the errors considered individually would not necessarily require
reversal of a conviction. State v. Harris, 310 Kan. 1026, 1041, 453 P.3d 1172 (2019);
State v. Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014). In reviewing a claim

18
of cumulative error, an appellate court examines the entire trial record to assess the
aggregate effect of multiple trial errors. 301 Kan. at 167-68. The assessment takes
account of "how the trial judge dealt with the errors as they arose; the nature and number
of errors and their interrelationship, if any; and the overall strength of the evidence."
State v. Miller, 308 Kan. 1119, 1176, 427 P.3d 907 (2018).

Robinson's argument fails at this juncture precisely because it is the sort of issue
that should be raised in a direct appeal (and apparently was not in his case). By launching
a cumulative error argument in a successive 60-1507 motion, Robinson has raised a claim
rooted in trial errors appropriately considered on direct appeal. In turn, he is
impermissibly deploying a habeas corpus proceeding as a second direct appeal. See
Rowland, 289 Kan. at 1087; Manco v. State, 51 Kan. App. 733, 736, 354 P.3d 551
(2015). Robinson has not endeavored to identify a legally recognized "exceptional
circumstance" that would lift that bar, allowing him to advance the cumulative error
argument now. Rowland, 289 Kan. at 1087; Wheeler v. State, No. 122,956, 2021 WL
4808283, at *1 (Kan. App. 2021) (unpublished opinion) (exceptional circumstances
include "unusual events," unanticipated changes in the law, and constitutionally deficient
legal representation). We, therefore, decline to consider the claim.

Having reviewed and addressed Robinson's arguments, we find no reason to
disturb the district court's denial of his second 60-1507 motion.

Affirmed.

19