No. 124,725
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BRIAN MICHAEL WATERMAN,
Appellant.
SYLLABUS BY THE COURT
1.
It is the task of the district court to ensure that a defendant's right to counsel under
the Sixth Amendment to the United States Constitution is honored. In order to fulfill this
duty, when the district court becomes aware of a possible conflict of interest between an
attorney and a defendant charged with a felony, the court has a duty to inquire further. If
an appropriate inquiry is made, the district court's decision is reviewed under an abuse of
discretion standard. But a district court abuses its discretion when it makes no inquiry
into the nature of the conflict.
2.
When a defendant is denied the assistance of counsel at a critical stage of the
criminal proceedings, prejudice to the defendant is presumed.
3.
The Kansas Supreme Court has held that an uncounseled misdemeanor conviction
obtained in violation of the defendant's Sixth Amendment right to counsel may not be
collaterally used for sentence enhancement in a subsequent criminal proceeding.
1
4.
Under the facts of this case, when a defendant convicted of a felony at trial files a
timely pro se motion for new trial alleging ineffective assistance of trial counsel and the
district court fails to appoint conflict-free counsel to assist the defendant in arguing the
motion, we must remand for the district court to hold a new hearing with conflict-free
counsel appointed to argue the motion. If on remand the district court denies the motion,
finding no ineffective assistance of counsel, a new trial is unnecessary. But if the district
court grants the motion, finding ineffective assistance of counsel, a new trial must be held
and trial counsel appointed.
Appeal from Cherokee District Court; ROBERT J. FLEMING, judge. Oral argument held September
19, 2023. Opinion filed November 22, 2023. Affirmed in part, reversed in part, sentence vacated, and case
remanded with directions.
Ethan Zipf-Sigler, of Zipf-Sigler Law Office, LLC, of Shawnee, for appellant, and Brian Michael
Waterman, appellant pro se.
Natalie Chalmers, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.
Before COBLE, P.J., MALONE and WARNER, JJ.
MALONE, J.: A jury convicted Brian Michael Waterman of attempted first-degree
murder, aggravated kidnapping, and aggravated burglary after he stormed into the home
of Bob Hopkins and repeatedly stabbed him. Waterman and his appointed appellate
attorney have both filed briefs, alleging many errors at trial and during his sentencing.
They challenge his convictions and the sentence he received, arguing:
(1) the State presented insufficient evidence to support his aggravated kidnapping
conviction;
2
(2) the district court erred by excluding witnesses he intended to call in his
defense;
(3) the district court violated his right to confrontation by permitting the State to
use the preliminary hearing testimony of his victim, who died before the trial;
(4) the district court erred by refusing to give an instruction on criminal restraint as
a lesser included offense of aggravated kidnapping;
(5) the district court erred in denying his motion to dismiss based on the State's
access to confidential attorney-client communications;
(6) the district court abused its discretion in denying his motion to appoint
substitute counsel;
(7) cumulative error deprived him of his right to a fair trial;
(8) he received an illegal sentence because the district court miscalculated his
criminal history score;
(9) the district court abused its discretion by failing to ask about potential biases
held by jurors;
(10) his right to due process was violated because the State introduced perjured
testimony; and
(11) the district court erred by denying his posttrial motion for mistrial alleging
ineffective assistance of counsel.
We have reviewed the record on appeal consisting of 40 volumes and over 2,700
pages of documents, transcripts, and exhibits. The parties agree that Waterman received
an illegal sentence due to the improper use of an uncounseled misdemeanor in calculating
his criminal history score. As for the claims affecting Waterman's convictions, we find
only one reversible error: Waterman was denied the appointment of conflict-free counsel
to argue his motion for new trial alleging ineffective assistance of counsel. As a result,
we remand the case for the district court to appoint new counsel to represent Waterman
on the posttrial motion and for further proceedings consistent with this opinion.
3
FACTUAL AND PROCEDURAL BACKGROUND
A near fatal stabbing
In the early evening hours of May 8, 2016, Bob was at home, sitting in his recliner
and enjoying a drink, when a man appeared at his door. Bob's door was always open,
weather permitting, and he asked the man, "[C]an I help you?" The man, whom Bob did
not know but recognized as a relative of one of his neighbors, responded, "I'm here to kill
you." The intruder would later be identified as Waterman. Bob told Waterman to leave,
but he did not; instead, Waterman stepped in the room, locked the door behind him, and
stabbed Bob in the chest, sides, and back with a pocketknife. After stabbing Bob 17
times, Waterman began pouring bleach over his head and spraying him with bug spray.
Not long after the attack began, Bob's son, Dwayne Hopkins, came home and went
to check on his father. He was surprised to find that the door to Bob's place was not only
closed but locked. He called out to his father, who responded in a weak and tired voice,
"[J]ust a moment." Once the door opened, Dwayne walked in the one-room residence and
saw Bob propped up in his bed. The door then shut behind him and he turned around to
see Waterman. Dwayne asked him, "[W]hat are you doing?" and Waterman replied, "I'm
here to watch him bleed out." Confused, Dwayne turned back to look at his father and
noticed that Bob was covered in blood. He then realized that Waterman, whose hand was
in his pocket, was probably holding a weapon. Dwayne knew he needed to escape and
call an ambulance as quickly as possible, so he fled past Waterman and was able to tell
his neighbor to call an ambulance. By the time he looked back, he saw Waterman leaving
his father's residence, heading toward the train tracks.
Several paramedics and police officers soon arrived on the scene. They
immediately noted the strong smell of bleach and the blood splattered all over Bob's
room. Despite his injuries, Bob remained awake and coherent. He told the officers that he
4
did not know the name of the man who had stabbed him but knew what he looked like.
When the officers asked about the man's motive, Bob told them the attacker had accused
him of "messing around with his daughter." Dwayne also provided a description of
Waterman—he noted that he thought his name was either Brian or Ryan and that he was
related to a woman named Judy Bossolono. Bossolono would later confirm Waterman's
identity, telling police that Waterman had told her that he would attack Bob and that he
was likely going to flee to Oklahoma.
Once the paramedics got Bob bandaged, they took him to the hospital where the
trauma surgeon treated his wounds, several of which were potentially fatal, including two
punctures of his heart and one to his lung. At some point while Bob was in the emergency
room, he suffered a cardiopulmonary arrest and lost all vital signs. Luckily, the doctors
stabilized him, and Bob survived the ordeal.
After Waterman fled Bob's home, he managed to get a ride from a nearby stranger
who drove him to the house of a friend. But upon finding out that Waterman may have
been involved in the attack on Bob, the friend kicked Waterman out and alerted police.
At that point, Waterman fled to Oklahoma, where he was soon apprehended by local law
enforcement and returned to Kansas.
Pretrial proceedings in district court
The State initially charged Waterman with one count of attempted first-degree
murder, one count of aggravated kidnapping, one count of aggravated battery, and one
count of aggravated burglary. At the preliminary hearing, held on February 24, 2017, the
State called both Bob and Dwayne to testify. Waterman's counsel cross-examined both
men, but the district court restricted questioning about whether Bob was suffering from
dementia. That said, Waterman's counsel still elicited testimony that Bob was having
5
trouble remembering things following the attack and did not recall the details of the
night. After hearing the evidence, the district court bound Waterman over for trial.
Over the following years, Waterman proceeded to have conflicts with each of the
many attorneys appointed to represent him and repeatedly requested continuances of his
trial date. Waterman's first appointed attorney, Candace Brewster Gayoso, withdrew
before the preliminary hearing. Steven Stockard represented Waterman at his preliminary
hearing and also filed a notice of defense of lack of mental state on Waterman's behalf.
Stockard then withdrew in February 2018, after requesting two continuances of the trial.
Robert Myers was appointed after Stockard withdrew; he requested another continuance
of the trial and withdrew a month after he was appointed. The court then appointed
Forrest Lowry to represent Waterman, but Waterman promptly requested his removal,
and the court appointed Sara Beezley. When Beezley began her representation, she
realized that Lowry had turned Waterman's casefile into the State upon his withdrawal,
and she was informed that the county attorney intended "to go through the box." Beezley
promptly moved to dismiss on Waterman's behalf, alleging confidential attorney-client
communications and trial strategy related materials were contained within his file. After
the file was returned, Waterman would claim that certain materials were missing.
At the hearing on the motion to dismiss, Waterman expressed concerns that he was
being deprived of a fair trial because the State had examined confidential
communications that he had with his attorneys about his intended defense. He also
broadly alleged that the State and his prior attorneys were all conspiring against him. The
State countered that it had not reviewed any confidential materials and merely went
through the box to ensure that Beezley received the entire discovery in the case. A legal
assistant from the county attorney's office testified that she initially thought Waterman's
casefile was just discovery materials, but soon noticed that it also contained attorney-
client communications. She asserted that she placed all such communications facedown
and did not review them, nor did anyone else in the county attorney's office.
6
After hearing the evidence, the district court denied Waterman's motion to dismiss,
explaining that while the State could have handled the matter more carefully, there was
no evidence that it had actually reviewed Waterman's confidential communications or
that he would suffer any prejudice from the State's actions. Waterman also moved to
disqualify the lead prosecutor on the same grounds, which the district court denied. Once
the motions were denied, Beezley withdrew as Waterman's counsel. The district court
then appointed Frederick Smith to represent Waterman, but he withdrew after
representing Waterman at one hearing. The district court then appointed James Campbell,
who would be the final attorney assigned to Waterman's case.
A few months into Campbell's representation, Waterman asserted his desire to
proceed pro se, but he soon changed his mind while trying to argue several motions at a
pretrial hearing. The district court then reinstated Campbell. But as Campbell resumed his
representation, Waterman began to accuse him of providing ineffective assistance of
counsel and working on behalf of the State. At that point, Campbell requested to
withdraw, but Waterman clarified that he was not asking to resume representing himself
or for Campbell to withdraw. The district court ordered Campbell to continue his
representation, and Campbell requested the court order a competency evaluation, which
the court granted. The district court later found Waterman competent to stand trial.
Waterman later filed motions requesting substitute counsel. Campbell also filed a
motion requesting the district court to grant his withdrawal. At a hearing on the motions,
Campbell stated that Waterman did not believe he was working in his best interests and
that there had been a breakdown in communications between Waterman and Campbell.
The district court noted that Campbell had a sterling reputation as a criminal defense
attorney and explained that Waterman had been provided several attorneys and expressed
doubts about finding another attorney to represent him. In response to the district court's
hesitation to appoint a new attorney, Waterman claimed that he was suing Campbell in
federal court, although the record is unclear whether any action had been filed. The
7
district court took the matter under advisement and contacted Board of Indigents' Defense
Services (BIDS) about the possibility of finding another attorney. The district court later
denied the motions, explaining that the mere fact that Waterman refused to get along with
Campbell—or any of his prior attorneys—was not a sufficient reason to grant the motion.
Trial and sentencing
Finally, on November 16, 2021, the trial began on charges of attempted first-
degree murder, aggravated kidnapping, and aggravated burglary. Unfortunately, after
surviving Waterman's attack, Bob had died before the case proceeded to trial.
Accordingly, the State sought to use his testimony from the preliminary hearing. The
district court permitted the use of Bob's prior testimony over Waterman's objection that
its use would violate his rights under the Confrontation Clause because he had not been
given a full opportunity to cross-examine Bob during the preliminary hearing.
Along with presenting Bob's preliminary hearing testimony and Dwayne's
testimony, the State called over a dozen other witnesses and introduced over 40 exhibits
at trial. One witness, Rick Mayberry, recalled seeing Waterman on the afternoon of the
attack and being concerned with his behavior. Mayberry testified that Waterman told him
that he was going to "take care of some things" and then flee the state. Waterman also
borrowed Mayberry's phone to text Waterman's ex-wife, T.B., about his plans. In the
message, Waterman told T.B. that he would be "taking care" of the man who had touched
their daughter. T.B. testified and explained that two years before the attack, Waterman
and T.B.'s daughter, A.W., had confided that A.W. thought she had been touched by an
old man—she did not reveal the man's name, although Waterman came to believe the
man was Bob. T.B. also testified that Waterman had sent her letters from jail before the
trial in which he described feeling justified in his actions because of what the man had
done to their daughter. The State also called Dr. David Baker, a trauma surgeon who had
8
treated Bob for his knife wounds. Dr. Baker described the severity of the wounds and the
fact that some wounds were potentially fatal.
Waterman testified in his defense. Waterman admitted stabbing Bob but testified
that he had not wanted to kill him. Waterman asserted that he was driven to a rage when
Bob not only admitted to touching his daughter but then told him that she had "liked it."
On the second day of trial, Waterman's counsel proposed that he planned to call a
psychologist, Dr. Mitchell Flesher, to testify about Waterman's various mental health
issues and how they influenced his behavior on the night of the attack. The State objected
and argued that any evidence about Waterman's mental health conditions was irrelevant
and inadmissible because Dr. Flesher had concluded that none of Waterman's conditions
were debilitating enough to negate his criminal intent. The district court agreed with the
State and excluded Dr. Flesher's testimony. Waterman also sought to call his daughter,
A.W., and another woman to testify that Bob had sexually abused them. The district court
excluded the testimony on the grounds that it was irrelevant to the issues at trial and
would not constitute a defense to the charges.
The district court instructed the jury on the charges including the lesser offenses of
attempted second-degree murder and attempted voluntary manslaughter. The district
court denied Waterman's request for an instruction on criminal restraint as a lesser
offense of aggravated kidnapping. After considering the evidence and the closing
arguments, the jury found Waterman guilty as charged on all counts.
Following the trial, Waterman filed a pro se "Motion for Mistrial for Ineffective
Assistance of Counsel." In his motion, Waterman argued that a mistrial was required for
his attorney's deficient performance. He argued that Campbell should have presented
more evidence on the varying sizes of the knife wounds (which he alleged suggested that
Dwayne had stabbed Bob after he did) and that Campbell did not sufficiently impeach the
credibility of Bob and Dwayne's testimony. Campbell also moved for a new trial on
9
Waterman's behalf based on violation of court orders relating to the treatment of
Waterman during the trial and for improper contact between the jurors and law
enforcement. Waterman later filed a formal ethical complaint against Campbell with the
Disciplinary Administrator's office and named him as a party in a federal lawsuit, causing
Campbell to again move to withdraw from the case due to a conflict.
At a hearing on the posttrial motions, the district court first addressed Campbell's
motion to withdraw. Campbell told the court that because of the complaint Waterman
filed against him, "I believe that I am ethically required to request the Court permission
to withdraw as representation for Mr. Waterman." The district court responded by asking
Campbell whether he could "set that aside and argue this motion for a new trial."
Campbell replied, "I dispute the allegations that he filed in his motion for ineffective
assistance. I dispute what he alleged in the disciplinary complaint. I'm going to continue
to zealously advocate for my client so long as I am his attorney in the case." After some
additional discussion, the district court denied Campbell's motion to withdraw.
Next, the district court addressed Waterman's pro se motion for a mistrial. Without
asking Campbell whether he could argue the motion on Waterman's behalf, the district
court simply asked Waterman if he was ready to proceed with his motion. Waterman
argued his motion and explained his dissatisfaction with Campbell due to his failure to
impeach Bob and Dwayne and his belief that Campbell provided poor representation in
retaliation against him. He focused his argument on Campbell's failure to highlight the
different sizes of the knife wounds Bob suffered. The State responded that it believed
Campbell had provided effective representation and refuted Waterman's claim that
evidence about the size of the knife wounds would have exonerated him.
In making its ruling, the district court noted that although Waterman had framed
parts of his argument as an ineffective assistance of counsel claim under K.S.A. 60-1507,
he was arguing for a mistrial. The district court disagreed with Waterman's contention
10
that Campbell was ineffective, explaining: "I can tell you I thought Mr. Campbell did a
very effective job of cross-examining Dwayne Hopkins." Ultimately, the district court
concluded: "So I'm going to deny your motion. I think you were provided with very
effective assistance of counsel. Unfortunately for you, you had bad facts."
The district court next addressed Campbell's motion for new trial. Campbell
argued many points covered in the written motion and introduced exhibits without
objection from the State to support one of the issues. After hearing the State's response,
the district court denied the motion for new trial.
At the sentencing hearing on January 4, 2022, the parties disagreed on Waterman's
criminal history score due to the aggregation of several prior misdemeanors—the State
asserted it was C and Waterman contended it should be F. The district court sided with
the State and determined Waterman's criminal history score was C. The district court
sentenced Waterman to 285 months' imprisonment for attempted first-degree murder, 155
months' imprisonment for aggravated kidnapping, 32 months' imprisonment for
aggravated burglary, and it ran the attempted murder and aggravated kidnapping
sentences consecutive for a controlling sentence of 440 months' imprisonment. Waterman
timely appealed the district court's judgment.
DID THE STATE PRESENT SUFFICIENT EVIDENCE
TO SUPPORT WATERMAN'S AGGRAVATED KIDNAPPING CONVICTION?
Waterman asserts that the State presented insufficient evidence to support his
aggravated kidnapping conviction because—under State v. Buggs, 219 Kan. 203, 547
P.2d 720 (1976)—the State failed to show that any confinement of his victim occurred
separate and distinct from the actions that supported his attempted first-degree murder
conviction. The State responds that Waterman's argument is misplaced because the
Kansas Supreme Court has held that Buggs does not apply to the subsection of the
11
aggravated kidnapping statute under which Waterman was charged. See State v. Burden,
275 Kan. 934, 69 P.3d 1120 (2003). After briefing, the State filed a Supreme Court Rule
6.09 (2023 Kan. S. Ct. R. at 40) letter of additional authority asserting that the holding in
Burden was reaffirmed in State v. Butler, 317 Kan. 605, 533 P.3d 1022 (2023).
When presented with a challenge to the sufficiency of evidence to support a
conviction, this court must decide whether—when reviewing the evidence in the light
most favorable to the State—it is convinced that a rational fact-finder could have found
the defendant guilty beyond a reasonable doubt. In making this inquiry, an appellate court
will not reweigh evidence, resolve evidentiary conflicts, or reassess witness credibility.
State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021).
The State alleged that Waterman committed aggravated kidnapping by confining
his victim "by force, threat, or deception and with the intent to hold said person to inflict
bodily injury or to terrorize the victim" and that bodily harm was inflicted upon the
person who was kidnapped. The language in the charging document mirrors that found in
K.S.A. 2022 Supp. 21-5408(a)(3), along with the element of the infliction of bodily harm
found in K.S.A. 2022 Supp. 21-5408(b). Waterman focuses his argument on the
"confinement" element of the offense. He asserts that because any confinement of Bob
was incidental to his commission of attempted first-degree murder "the evidence at trial
did not support a separate conviction for aggravated kidnapping."
To support his sufficiency argument, Waterman cites Buggs, 219 Kan. at 214-17,
which restricted the meaning of the term confinement in the context of the crime of
kidnapping when the alleged confinement was committed in facilitation of another crime.
The Buggs court held that a confinement must "not be slight, inconsequential and merely
incidental to" or "of the kind inherent in the nature of the other crime." 219 Kan. at 216.
Rather, the confinement "[m]ust have some significance independent of the other crime
in that it makes the other crime substantially easier [to commit] or substantially lessens
12
the risk of detection." 219 Kan. at 216. But the Kansas Supreme Court later clarified that
the Buggs test only applied to those cases where the State alleged that the victim was
confined with the intent to facilitate the commission of another crime—this subsection is
found in K.S.A. 2022 Supp. 21-5408(a)(2). Burden, 275 Kan. 934, Syl. ¶ 3. And as the
State points out, the Burden court's holding recently has been upheld by the Kansas
Supreme Court in Butler, 317 Kan. 605.
Because Waterman was charged under section (a)(3) of the kidnapping statute, and
not under section (a)(2), the Buggs test has no application, and we need only proceed
under the typical sufficiency-of-the-evidence standard to determine whether the evidence
the State presented at trial could support Waterman's aggravated kidnapping conviction.
To prove Waterman guilty of aggravated kidnapping beyond a reasonable doubt, the
State had to prove that he confined Bob with the intent "to inflict bodily injury or to
terrorize the victim or another," plus the added element that Waterman inflicted bodily
harm on Bob. See K.S.A. 2022 Supp. 21-5408(a)(3) and (b).
Viewed in the light most favorable to the State, there was sufficient evidence to
show that Waterman confined Bob with the intent to inflict bodily injury on him. Bob's
testimony established that Waterman came into his house, locked the door, and told him
that he was there to kill him before he proceeded to continually stab him. Bob's son,
Dwayne, confirmed that the door to Bob's residence was shut and locked when he went to
check on his father, which was abnormal because Bob usually left his door open until he
went to bed. Dwayne described knocking on the door and calling out to his father until
the door then opened. Before Dwayne even noticed his father's stab wounds, Waterman
told him, "'I'm here to watch him bleed out.'" For his part, Waterman did not directly
testify about whether he had closed and locked the door when he entered Bob's
residence—he did state that Dwayne simply walked in, not that he opened the door for
him. In any event, this court cannot reweigh the evidence presented to the jurors, who
were entitled to credit or discredit Bob and Dwayne's testimony that Waterman locked
13
the door. See State v. Kettler, 299 Kan. 448, 471, 325 P.3d 1075 (2014). Thus, the State
presented sufficient evidence that Waterman confined Bob before stabbing him and
dumping bleach on him. We conclude that a rational fact-finder could have found beyond
a reasonable doubt that Waterman was guilty of aggravated kidnapping.
DID THE DISTRICT COURT ERR BY EXCLUDING CERTAIN WITNESSES?
Waterman argues the district court erred by excluding testimony from (1) a
treating psychologist about his mental conditions and (2) two witnesses who alleged that
Bob had committed acts of sexual abuse against them. He asserts that by excluding these
crucial witnesses the district court violated his right to present his chosen defense. The
State counters that the district court properly excluded the evidence Waterman sought to
admit, and, even if the testimony were relevant, any error was harmless.
While criminal defendants have a right to present relevant evidence to support
their theory of defense under both the federal and Kansas Constitutions, that right is
subject to reasonable restrictions. State v. Frantz, 316 Kan. 708, 720-21, 521 P.3d 1113
(2022) (quoting United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed.
2d 413 [1998] ["(S)tate and federal rulemakers have broad latitude under the Constitution
to establish rules excluding evidence from criminal trials."]). Rules of procedure and
evidence are designed to assure both fairness and reliability in the ascertainment of guilt
and innocence, and therefore must be abided. Frantz, 316 Kan. at 721. Thus, a criminal
defendant's fundamental right to a fair trial is only violated where "'relevant, admissible,
and noncumulative evidence which is an integral part of the theory of the defense is
excluded.'" State v. Roeder, 300 Kan. 901, 927, 336 P.3d 831 (2014). Whether a
defendant was denied their constitutional right to present a defense by the exclusion of
evidence is a question of law subject to unlimited review. State v. White, 316 Kan. 208,
212, 514 P.3d 368 (2022).
14
When examining issues about the admission or exclusion of evidence, an appellate
court must first consider whether the evidence was relevant. State v. Levy, 313 Kan. 232,
237, 485 P.3d 605 (2021). Relevant evidence must be both material—meaning it has
some real bearing on the decision in the case—and probative—meaning it tends to prove
a material fact. State v. Alfaro-Valleda, 314 Kan. 526, 533, 502 P.3d 66 (2022). Whether
a piece of evidence is material presents a question of law, which this court considers
under a de novo standard of review; whether evidence is probative is reviewed for an
abuse of discretion. 314 Kan. at 533. "'Once relevance is established, evidentiary rules
governing admission and exclusion may be applied either as a matter of law or in the
exercise of the district judge's discretion, depending on the contours of the rule in
question.'" Roeder, 300 Kan. at 927.
Proposed testimony of Dr. Flesher
Waterman first contends that Dr. Flesher, who performed psychological
evaluations on him, should have been permitted to testify as an expert regarding the
effect of his various mental health conditions on his ability to form the requisite intent to
commit the crimes charged. He argues: "Doctor Flesher's testimony was critical in the
defense's theory that [his] intention was not to commit a crime or to kill [Bob] when he
went in to confront him that day." The State asserts Dr. Flesher's testimony was irrelevant
and properly excluded by the district court under K.S.A. 2022 Supp. 21-5209, the statute
governing the defense of lack of mental state. Issues involving a district court's admission
or exclusion of expert testimony offered under the mental disease or defect statute are
reviewed de novo. State v. Pennington, 281 Kan. 426, 433-34, 132 P.3d 902 (2006).
Waterman filed a notice of his intent to assert a defense based on his alleged
disease or defect, under K.S.A. 22-3219, to support his defense that he could not form the
requisite intent to commit the crimes. At trial, Waterman's counsel stated that he intended
to call Dr. Flesher to testify because to receive an instruction on "an imperfect mental
15
health defense," Waterman needed to present testimony from an expert who evaluated
him. The district court initially ruled that it would permit Dr. Flesher's testimony and that
the State could raise objections once he was on the stand.
But the next day, the State filed a motion in limine, alleging Dr. Flesher's
testimony was inadmissible. The State's motion relied on two cases: State v. McLinn, 307
Kan. 307, 319, 409 P.3d 1 (2018), which held that premeditation is not a culpable mental
state that can be negated by the mental disease or defect defense under K.S.A. 2013
Supp. 21-5209, and Pennington, 281 Kan. at 435-36, which held that evidence of the
existence of mental disease or defects must relate to the defendant's ability to possess the
required intent for the crimes charged. After hearing the parties' arguments, the district
court ruled that Dr. Flesher would not be permitted to testify at trial but that his testimony
could be presented as mitigating evidence during sentencing if Waterman were convicted.
Before addressing the grounds of the district court's ruling, we observe that
Waterman's argument about Dr. Flesher's proposed testimony does not square with the
substance of his report. While Waterman correctly states that Dr. Flesher found that he
suffered from "various mental health issues," Waterman's assertion at the motion in
limine hearing that Dr. Flesher had determined that he was "potentially incapable of
forming the intent necessary for him to be found guilty" is not supported by Dr. Flesher's
written report. In his report, Dr. Flesher found that Waterman suffered from several
mental disorders—such as psychosis, paranoia, persecutory beliefs, substance abuse
disorder, and manic and impulsive behavior. But he still concluded:
"Based on his statements to others prior to the offense, his present recollection of the
offense, and his behavior following the offense, it appears that Mr. Waterman did not,
due to mental disease or defect, lack the ability to form the intent required as an element
of the offense.
....
16
"It is likely that those conditions strongly influenced his behavior at the time of the
offense, but based on his actions prior to, during, and after the offense, the conditions did
not result in such confusion or disorientation as to negate his criminal responsibility
under Kansas law."
K.S.A. 2022 Supp. 21-5209 states: "It shall be a defense to a prosecution under
any statute that the defendant, as a result of mental disease or defect, lacked the culpable
mental state required as an element of the crime charged. Mental disease or defect is not
otherwise a defense." To prove Waterman guilty of all three charged crimes, the State
was required to prove three different culpable mental states: (1) for attempted
premeditated murder, that he intended to kill Bob; (2) for aggravated kidnapping, that he
intended to inflict bodily harm or to terrorize Bob; and (3) for the aggravated burglary,
that he intended to commit a felony when he entered Bob's residence. Thus, for any
evidence of Waterman's alleged mental defects to constitute a viable defense, it would
have to show that because of a mental disease or defect, he lacked the intent required as
an element of the three charged crimes. See Pennington, 281 Kan. at 434.
Dr. Flesher did not believe that Waterman's mental defects precluded him from
forming the requisite intent to commit any of the charged crimes. Although Dr. Flesher
outlined his belief that Waterman's intoxication, prior methamphetamine use, and bipolar
disorder "likely . . . strongly influenced his behavior at the time of the offense," he
concluded that, in his opinion, those factors did not "negate [Waterman's] criminal
responsibility under Kansas law."
Waterman's case is similar to Pennington. There, a psychologist performed two
examinations and found that the defendant suffered from mental defects, but still stated
that the defendant could form the intent necessary to commit his crimes. The Pennington
court upheld the district court's exclusion of the expert's testimony to support a mental
disease or defect defense reasoning that the testimony was irrelevant because the expert's
17
opinion was that the defendant had the ability to form the criminal intent required to
commit the crimes charged—despite any disease or defect he may have suffered. 281
Kan. at 432, 441. The same rationale applies here. Although Dr. Flesher's report shows
that Waterman suffered from various mental diseases or defects at the time of the offense,
Dr. Flesher made clear that those ailments did not prevent Waterman from forming the
requisite criminal intent to commit the charged crimes.
"'Relevant evidence' means evidence having any tendency in reason to prove any
material fact." K.S.A. 60-401(b). To be relevant, evidence of Waterman's mental ailments
would need to tend to show that they prevented him from forming (1) the intent to kill
Bob, (2) the intent to inflict injury or terrorize Bob by confining him, or (3) the intent to
commit a felony inside Bob's house. Dr. Flesher's expert opinion does not support such a
conclusion—it supports the exact opposite. Dr. Flesher explained that despite his
distorted perceptions and impaired judgment, the conditions that Waterman suffered did
not cause sufficient confusion or disorientation to negate his ability to form the requisite
criminal intent. Thus, any evidence that Waterman was suffering from various mental
conditions was not relevant to a determination of whether he committed attempted
premeditated murder, aggravated kidnapping, or aggravated burglary. We conclude the
district court did not err in excluding Dr. Flesher's expert testimony about Waterman's
mental disorders because such evidence failed to meet the standard in K.S.A. 2022 Supp.
21-5209.
Proposed testimony of A.W. and C.H.
Next, Waterman argues that the district court erred when it excluded testimony of
A.W. and C.H., both of whom would have testified that Bob had sexually abused them
years earlier. He asserts their testimony was relevant because it would have challenged
the credibility of Bob, and Dwayne and would "support [his] mental state at the time he
entered the house." He also asserts that A.W.'s testimony would have corroborated his
18
claim that he acted in a heat of passion when Bob said that A.W. "liked" the abuse. The
State again maintains the evidence was properly excluded because it was not relevant.
At trial, Waterman informed the court that he intended to call both A.W. and C.H.
to testify about being abused by Bob, but the district court excluded such testimony on
the ground of relevance, noting that whether Bob was a sexual abuser was not a defense
to Waterman's actions. Although Waterman was not permitted to call A.W. and C.H. as
witnesses, he was still able to introduce evidence about Bob allegedly molesting his
daughter. Waterman personally testified that he only stabbed Bob after he admitted
touching A.W., and Waterman's ex-wife, T.B. described A.W. telling her—two years
before the attack—that an old man had touched her.
The proposed testimony of A.W. and C.H. had little or no relevance to the trial.
Neither A.W. nor C.H. were at the scene of the attack and their alleged abuse occurred
years before the attack. Waterman was allowed to present evidence of his belief that Bob
may have molested A.W. to establish his intent in confronting Bob. Whether Bob was
guilty of actually molesting A.W. was immaterial. For the same reason, Waterman did
not need A.W.'s testimony to corroborate his claim that he acted in a heat of passion
when Bob said that A.W. "liked" the abuse. Assuming there was any relevance to A.W.'s
proposed testimony, it would have been cumulative to the evidence Waterman was
permitted to introduce on the subject. The proposed testimony of C.H. was even less
relevant as there was no evidence that Waterman knew about this alleged abuse.
Waterman's blanket assertion that the testimony would have cast doubt on Bob's
credibility is also unconvincing. While Bob denied abusing, or even knowing A.W., he
told the responding officers that Waterman had stabbed him because Waterman believed
that he had touched his daughter. Likewise, the testimony of A.W. and C.H. had no
bearing on Dwayne's credibility—he testified that he was unaware of any allegations
against Bob. The district court properly excluded the testimony of A.W. and C.H.
19
because evidence of Bob's alleged abuse was not relevant before the jury and would not
have impeached the credibility of the witnesses against Waterman. We need not address
the State's argument that any error in the exclusion of this testimony was harmless.
DID THE DISTRICT COURT VIOLATE WATERMAN'S RIGHT TO CONFRONTATION?
Waterman next contends that his right to confrontation was violated when the
district court admitted Bob's preliminary hearing testimony at trial after his death.
Although Waterman was present at the preliminary hearing and was represented by
counsel (who cross-examined Bob at that time), he still asserts that this prior cross-
examination was constitutionally inadequate because the district court restricted his
questioning about any disorders that may have affected Bob's memory of the events. The
State counters that Waterman's argument is meritless because he could delve into Bob's
general memory issues, just not his alleged medical conditions.
The Sixth Amendment's Confrontation Clause provides that an accused "shall
enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend
VI; see also Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)
(holding Sixth Amendment's Confrontation Clause binds States through the Fourteenth
Amendment). In Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004), the United States Supreme Court held the Sixth Amendment right to
confrontation provides that testimonial hearsay statements are inadmissible unless the
declarant is unavailable to testify, and the defendant was afforded a prior opportunity to
cross-examine the declarant. We review a claim that a defendant's right to confrontation
was violated de novo. State v. Stano, 284 Kan. 126, 139, 159 P.3d 931 (2007).
The Kansas Supreme Court has explained the contours of a defendant's rights
under the Confrontation Clause as follows:
20
"[T]his court has not indicated that a defendant must have the opportunity to cross-
examine a witness as to every allegation that may arise during the course of a trial in
order to protect his constitutional rights under the Confrontation Clause. Previous Kansas
cases recognize that there may be details at trial that have not been the subject of cross-
examination in prior proceedings. As this court explained in [State v.] Terry, [202 Kan.
599, 451 P.2d 211 (1969)] '[t]his exception [of admitting preliminary hearing testimony]
has been explained as arising from practical necessity and justified on the ground that the
right of cross-examination initially afforded provides substantial compliance with the
purposes behind the confrontation requirement.' 202 Kan. 599, Syl. ¶ 3." Stano, 284 Kan.
at 144.
In State v. Noah, 284 Kan. 608, 613, 162 P.3d 799 (2007), the Kansas Supreme
Court squarely addressed the question of what constitutes a constitutionally adequate
opportunity for cross-examination. The Noah court explained that a defendant must be
given the opportunity to conduct cross-examination but noted that a district court may
still impose reasonable limits on defense counsel's questioning—"'"[T]he Confrontation
Clause guarantees an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense might wish."'
[Citation omitted.]" 284 Kan. at 616 (quoting Delaware v. Van Arsdall, 475 U.S. 673,
679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 [1986]). Ultimately, the Noah court concluded the
determination of whether the opportunity for cross-examination was sufficient is a case-
by-case basis inquiry and depends on the type and extent of limitations placed on the
defendant's cross-examination. 284 Kan. at 616-17.
Waterman had the opportunity to cross-examine Bob at the preliminary hearing.
Waterman's cross-examination focused on Bob's poor memory, including his difficulty
remembering the details of the attack, his inability to recall what happened in the months
following the stabbing, and his failure to recall giving a statement to the police. But the
State objected when Waterman's counsel questioned whether Bob knew "what the term
dementia means." The State argued that there was no foundation to question Bob about
21
dementia and that he was not a medical expert on the subject. The district court sustained
the State's objection, to which Waterman's counsel asked whether he would be permitted
"to examine [Bob's] medical condition that may affect his memory concerning these
events," and asserted, "I'm just trying to make a record of any medical condition that he
has that may affect his ability to recall." The district court clarified that it was permitting
questions about what Bob could remember, but it would not allow questions about Bob's
specific medical condition because they were more properly raised to Bob's doctor.
Despite the district court's limitation on asking about Bob's medical conditions,
Waterman probed the credibility of Bob's version of events through his admitted inability
to remember the particulars of the night of the incident. Through Waterman's cross-
examination, he established that Bob forgot what he had done on the day of the attack.
Bob also admitted that he forgot the timeline of events, nor did he remember exactly what
Waterman told him other than that he said, "I'm here to kill you." Finally, Bob described
going "blank" sometime during the attack and that the next thing he remembered was
being in a nursing home, six months later. In short, the record from the preliminary
hearing, which was eventually read to the jury during trial, displayed that Bob had severe
memory issues—regardless of whether he suffered from a medical condition. Thus, to the
extent that Waterman contends the district court disallowed inquiry into issues of Bob's
memory, and therefore his credibility about the stabbing, his argument fails.
The sole line of inquiry the district court denied to Waterman during his cross-
examination was whether Bob suffered from a medical condition such as dementia.
While Waterman's cross-examination was restricted, he was not prevented from probing
Bob's memory of the events. The district court also did not deprive Waterman of the
opportunity of introducing evidence about whether Bob suffered from dementia at a later
date. Waterman could have questioned Bob's doctor about any possible medical issues
impacting Bob's cognitive abilities or called him at trial, but he did not do so. The record
shows that Waterman could ask detailed questions about Bob's memory and recollection
22
of events, even if he could not confirm whether Bob suffered from dementia. As such, we
conclude that Waterman had an opportunity for effective cross-examination of Bob at the
preliminary hearing sufficient to satisfy the requirements of the Confrontation Clause.
DID THE DISTRICT COURT ERR IN FAILING TO
GIVE AN INSTRUCTION ON CRIMINAL RESTRAINT?
Waterman next argues the district court erred by not giving an instruction on
criminal restraint as a lesser included offense of aggravated kidnapping. Interestingly,
Waterman did not seek an instruction for the lesser offense of kidnapping, but he
requested an instruction for the lesser offense of criminal restraint. The State responds
that an instruction on criminal restraint was legally appropriate and "may have been"
factually appropriate, but any error in not giving the instruction was harmless.
This court analyzes claims of jury instruction errors using a three-step process to
determine whether: (1) there is a lack of appellate jurisdiction or a failure to preserve the
issue for appeal; (2) the instruction was factually and legally appropriate; and (3) any
error requires reversal. State v. Crosby, 312 Kan. 630, 638-39, 479 P.3d 167 (2021).
Here, Waterman requested the district court provide a jury instruction on criminal
restraint. As such, if this court finds that the court erred in not giving the instruction, it
must determine whether the error was harmless—that is, whether there is no reasonable
possibility that the error contributed to the verdict. State v. Holley, 313 Kan. 249, 256-57,
485 P.3d 614 (2021). The burden is on the State to prove harmless error. 313 Kan. at 257.
Jury instructions on lesser included offenses are generally legally appropriate.
State v. Gentry, 310 Kan. 715, 721, 449 P.3d 429 (2019). And criminal restraint is a
lesser included offense of aggravated kidnapping. State v. Simmons, 282 Kan. 728, 742,
148 P.3d 525 (2006). Thus, as both parties agree, a jury instruction on criminal restraint
at Waterman's trial would have been legally appropriate. But we observe that in our
23
stepladder approach to instructing the jury on lesser included offenses, the district court
would have instructed on criminal restraint only after instructing on kidnapping, and
Waterman did not even request an instruction on kidnapping.
Turning to whether a criminal restraint instruction was factually appropriate, a jury
instruction for a lesser included offense must be given "[i]n cases where there is some
evidence which would reasonably justify a conviction of some lesser included crime . . .
the judge shall instruct the jury as to the crime charged and any such lesser included
crime." (Emphasis added.) K.S.A. 2022 Supp. 22-3414(3). Alongside this statutory
directive, Kansas courts have repeatedly held that "[a] district court has a duty to instruct
the jury on any lesser included offense established by the evidence, even if that evidence
is weak or inconclusive." State v. Nelson, 291 Kan. 475, Syl. ¶ 1, 243 P.3d 343 (2010).
For a rational fact-finder to find Waterman guilty of criminal restraint, it would
have to find that he "knowingly and without legal authority restrain[ed] another person so
as to interfere substantially with such person's liberty." K.S.A. 2022 Supp. 21-5411(a).
Waterman argues that a jury instruction on criminal restraint would have been factually
appropriate because the evidence on confinement "was minimal" and disputed. He points
out there was some evidence that he never locked the door at Bob's residence but even if
he did, that level of confinement "was not severe enough to warrant a conviction for
kidnapping."
We are not convinced that a jury instruction on criminal restraint would have been
factually appropriate here. But if an instruction on criminal restraint would have been
factually appropriate, we agree with the State that any error in failing to give the
instruction was harmless. The difference between criminal restraint and aggravated
kidnapping is that aggravated kidnapping required Waterman to confine Bob by force
with intent to hold Bob to inflict bodily injury on him and bodily harm was inflicted on
him. The State presented overwhelming evidence that Waterman confined Bob by force
24
to inflict bodily injury on him and, after stabbing Bob 17 times, Waterman stayed in the
room "to watch him bleed out." The weight of the evidence presented at trial leaves little
doubt that the jury would have convicted Waterman of aggravated kidnapping even if an
instruction on criminal restraint had been given. We are comfortable in finding the State
has shown there is no real possibility that any error contributed to the verdict. Thus, we
conclude that any error in failing to instruct the jury on criminal restraint was harmless.
DID THE DISTRICT COURT ERR IN DENYING WATERMAN'S MOTION TO DISMISS BASED ON
THE STATE'S ACCESS TO CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATIONS?
Waterman contends the district court abused its discretion by refusing to dismiss
the charges against him because his right to counsel was violated through a breach of his
attorney-client relationship by the State's handling of his casefile after it was left with the
county attorney's office by his former attorney. He argues that the district court should
have at least disqualified the Cherokee County Attorney's Office for the alleged violation.
In his pro se brief, Waterman also claims the district court erred in denying his motion to
dismiss based on a breach of attorney-client communications. Waterman alleges the State
used the confidential communications from his casefile to formulate its trial strategy—he
does not provide record citations to support his conclusory allegations. In response, the
State argues the district court did not abuse its discretion in denying the motions because
the county attorney's office properly dealt with the casefile after realizing it contained
confidential materials and its actions did not prejudice Waterman in any meaningful way.
Appellate courts review a district court's decision on whether to dismiss criminal
charges for an abuse of discretion. State v. Bolen, 270 Kan. 337, 342-43, 13 P.3d 1270
(2000). Similarly, a court's decision on whether to disqualify an attorney is reviewed for
an abuse of discretion. This court will only find an abuse of discretion if the district
court's ruling was based on an error of fact, an error of law, or if no reasonable person
would agree with its decision. State v. Miller, 308 Kan. 1119, 1148, 427 P.3d 907 (2018).
25
After finding out that his former attorney had left his casefile with the county
attorney's office, Waterman moved to dismiss. He alleged that the casefile contained
confidential communications and the State prejudiced his case by failing to promptly
return the casefile. His motion asserted a violation of his right to due process, not his
right to counsel—although he later moved to suppress and alleged the State's actions
violated his rights under the Sixth Amendment to the United States Constitution.
In Bolen, the Kansas Supreme Court discussed the standards for dismissing a
criminal case based on the State's misconduct. The Bolen court noted that while a district
court has discretion to dismiss criminal charges, such a ruling should be made with
caution, and only when no other remedy will serve the ends of justice. 270 Kan. at 342-
43. For the State's actions to merit such a remedy, it must be shown that intentional
misconduct occurred, that the misconduct prejudiced the defendant, and that no lesser
sanction would suffice. 270 Kan. at 342-43. The United States Supreme Court has
similarly found that a mere intrusion into an attorney-client relationship, standing alone,
cannot constitute a Sixth Amendment violation. Weatherford v. Bursey, 429 U.S. 545,
550-58, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977) ("There being no tainted evidence in this
case, no communication of defense strategy to the prosecution, and no purposeful
intrusion[] . . . there was no violation of the Sixth Amendment . . . .").
Waterman contends the district court applied the incorrect standard when
addressing the claims within his motion to dismiss, citing several cases in which other
jurisdictions have presumed prejudice to a defendant where the State has intruded into the
attorney-client relationship. See Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir.
1995); United States v. Costanzo, 740 F.2d 251, 254 (3d Cir. 1984); State v. Bain, 292
Neb. 398, 418-19, 872 N.W.2d 777 (2016); State v. Lenarz, 301 Conn. 417, 435-37, 22
A.3d 536 (2011). But these cases are distinguishable as each centered on intentional
intrusions into the attorney-client relationship by the government. The facts here do not
26
support Waterman's claim that the State's actions in handling Waterman's casefile were
intentional.
Although Waterman insists that the State nefariously searched his casefile and
used his confidential communications to thwart his defense, the record does not support
this conclusion. At the hearing, the State presented the testimony of the legal assistant
who inventoried the box, believing it to be discovery—she was the sole person in the
county attorney's office to handle the casefile. She stated that when she found letters with
Waterman's former attorney's letterhead, she did not review them. She also explained that
she did not make any copies or documentation of the letters, and simply returned them to
the box, which she then provided to Waterman's attorney.
In ruling on the motion to dismiss, the district court implicitly found the State's
evidence more credible than Waterman's testimony. The district court found that it was
reasonable for the State to assume that Waterman's former attorney had delivered a box
of discovery upon his withdrawal from the case and that it was reasonable for the State to
ensure that the discovery materials were complete before providing them to Waterman's
new counsel. The district court found that Waterman had made no showing that any of
the State's attorneys had reviewed the material—the only person in the county attorney's
office who went through the casefile was the legal assistant, who upon finding what
appeared to be confidential communications quarantined them without review. Finally,
the district court found that Waterman had not shown that he was prejudiced in any way
by the State's inadvertent receipt of the casefile.
The district court's factual findings are supported by the record. It is undisputed
that the State only received the casefile inadvertently when Waterman's former attorney
gave it to them. No evidence supports Waterman's claim that the State's actions were
intentional or designed to discover Waterman's trial strategies. Waterman could not show
that the State's actions prejudiced him in any way. And any potential risk of prejudice at
27
trial was negated by the district court's decision to permit Waterman to raise objections at
trial should the State attempt to use any information derived from his confidential
communications. After his initial motion to dismiss was denied, Waterman moved to
suppress any materials found in his casefile as being obtained in violation of his attorney-
client privilege, and in the alternative to dismiss the case. The district judge declined
Waterman's request to dismiss the case or make any suppression ruling at that time, but it
ruled: "In the event during the trial the State attempts to introduce evidence from your
file that you think is prejudicial, you may at that time object, and I will rule on it."
Despite this ruling, Waterman raised no such objection during the trial.
Waterman did not provide any communication, transcript, or documentation
showing that the State obtained any evidence or content from his casefile, let alone that it
used such information. He merely provides conclusory and speculative accusations that
the State engaged in intentional and egregious illegal conduct. The record provides no
basis from which this court can presume that he suffered any prejudice.
The district court did not abuse its discretion in denying Waterman's motion to
dismiss. While the county attorney's office's handling of the casefile after it became clear
that there were privileged materials could have been more forthcoming, the record does
not support that Waterman suffered any prejudice. Waterman has not shown that the
district court's ruling on his motion was based on an error of fact or law, and, considering
the extreme remedy Waterman sought, it cannot be said that no reasonable person would
agree with the district court's denial of his motion to dismiss.
Waterman also alleges the district court abused its discretion by denying his
motions seeking the disqualification of the lead prosecutor. In his motions, he argued that
the only way to ensure that the State did not use the private communications and trial
strategies found in his casefile was to disqualify the prosecutor. As with his arguments
about the denial of his motion to dismiss, Waterman makes conclusory allegations that
28
are not supported by the record. As noted above, the only person within the county
attorney's office that handled Waterman's casefile was a legal assistant. She testified that
she did not review any items that she thought could be confidential communications, and
that no one else in the office—including the prosecutor whom Waterman argues should
have been disqualified—reviewed the materials either. Waterman could object at trial if
he believed the State was trying to use any information derived from its exposure to
confidential communications, but he raised no objections. The district court did not abuse
its discretion by denying the motions to disqualify the prosecutor.
DID THE DISTRICT COURT ABUSE ITS DISCRETION BY
REFUSING TO PERMIT WATERMAN'S TRIAL COUNSEL TO WITHDRAW?
Waterman contends the district court abused its discretion when it denied his
pretrial request for new counsel due to a deterioration of his relationship with Campbell,
the seventh attorney assigned to represent him. The State asserts that the district court did
not abuse its discretion when it refused to permit Campbell to withdraw. The State argues
that the district court sufficiently inquired about any conflict and found that the
deterioration in the relationship between Waterman and Campbell was not complete.
Both the federal and Kansas Constitutions guarantee indigent criminal defendants
the right to effective assistance of counsel. But neither guarantees the right to choose
which attorney will be appointed to represent him or her. State v. Breitenbach, 313 Kan.
73, 90-91, 483 P.3d 448, cert. denied 142 S. Ct. 255 (2021). The rules governing a
defendant's motion for substitute counsel are well established:
"'[T]o warrant substitute counsel, a defendant must show "justifiable dissatisfaction" with
appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest,
an irreconcilable conflict, or a complete breakdown in communications between counsel
and the defendant. But ultimately, "'[a]s long as the trial court has a reasonable basis for
believing the attorney-client relation has not deteriorated to a point where appointed
29
counsel can no longer give effective aid in the fair presentation of a defense, the court is
justified in refusing to appoint new counsel.'"
"Further, when the defendant's dissatisfaction emanates from a complaint that
cannot be remedied or resolved by the appointment of new counsel—such that
replacement counsel would encounter the same conflict or dilemma—the defendant has
not shown the requisite justifiable dissatisfaction. [Citations omitted.]" 313 Kan. at 90-91.
After receiving many substitute counsel appointments, Waterman filed two pro se
motions to remove Campbell—the first was titled "Conflict of Interest On Counsel" and
the second, "Motion to Recuse James Campbell." Waterman alleged that the attorney-
client relationship was no longer workable, and that Campbell was refusing to litigate on
his behalf. He also claimed that Campbell was conspiring with the State and the district
court to deny him his fundamental rights (an accusation he made against his prior
attorneys), and that he had filed a civil complaint against Campbell. Waterman did not
ask the district court to allow him to proceed pro se; instead, he insisted that the district
court appoint another attorney to represent him in the case. Campbell filed his own
motion to withdraw, explaining that he and Waterman had a contentious relationship and
that Waterman refused to communicate with him.
The district court held a hearing on the motions. Campbell explained that
Waterman did not believe that he was working on his behalf and outlined the difficulties
in his representation. The district judge made these comments before taking the matter
under advisement:
"Here is the—here is the problem I have. I'm not sure I've got the order correct
but I think Mr. Campbell is your eighth attorney, and I know Candace Brewster was the
first. I think Robert Myers was the second. I don't know the sequence after that. Steve
Stockard was your attorney, Forest Lowry was your attorney, Sara Beezley was your
attorney, Rick Smith—and I think I'm leaving out someone. That's because a—and then
Mr. Campbell would be seventh and I think you've had eight attorneys.
30
"And just by way of background, and for your information because in your letter
to me requesting that Mr. Campbell be recused, you refer to him as Judge Lynch's lawyer,
and you say Judge Lynch assigned him.
"That's not the case. If you remember, we were set to try this case, there were 97
jurors I think here ready to be voir dired and we had a meeting in chambers with the State
and you and your attorney, Rick Smith, and you were in the same position with Mr.
Smith it appears you are in now with Mr. Campbell.
"And so I, at your request, granted a continuance, relieved—let Mr. Smith out of
the case. And then I called the lady that was in charge of the Board of Indigent Defense
Service, she's since retired, but her name was Patricia Scalia. And I told her that you had,
I think, seven attorneys, and there wasn't anybody in Southeast Kansas that I would think
would agree to take this. And I just said can you appoint somebody.
"And she called me back later and said I'm going to appoint James Campbell,
he's—he has a reputation for being a topnotch trial lawyer and he has experience in
dealing with difficult clients and he's tried over 100 jury trials.
"So that's how Mr. Campbell was selected. It didn't have anything to do with
Judge Lynch. And I'm concerned now that if I allow him to withdraw, I don't know who I
can get to represent you. And so there is a new director at BIDS, and so what I think I'm
going to do is take this motion under advisement and contact that person tomorrow . . . ."
The parties reconvened for another hearing two weeks later, and the district court
announced its ruling on the motions. The district court began by finding that neither
Waterman nor Campbell had established that the issues between them were affecting the
quality of Campbell's representation. The district court continued:
"The fact is, from my observations, the defendant has been provided—well, with
the last two attorneys he's had, Mr. Campbell and Mr. Smith, both of whom provided, in
my judgement, professional and effective assistance. But defendant—I think the problem
is he couldn't get along with either of them and apparently couldn't get along with the
ones who preceded him.
"And that's—not being able to get along with someone is not grounds to have a—
to support your motion, Mr. Waterman, or Mr. Campbell's motion to withdraw.
....
31
"So I find as follows: The fact that defendant refuses to cooperate with Mr.
Campbell and aide in his defense is his doing—Mr. Waterman's doing. Mr. Campbell is,
from my observation and from what I understand from others, highly qualified. He has to
date—and I think would likely in the future—continue to represent Mr. Waterman in a
manner and custom consistent with the highest degree of professional norms in the State
of Kansas.
"Not one thing about Mr. Campbell's performance in my judgment has adversely
affected Mr. Waterman's status in this case to date.
"Now, I'm mindful, Mr. Campbell, of your concerns about ethical issues. I don't
know specifically what they are, but, as I indicated, that's just something you will have to
deal with.
"Mr. Waterman has already had either seven or eight, I have forgotten, lawyers.
And I think it is unlikely that any other lawyer would be—turn out to be satisfactory with
you, Mr. Waterman.
"So the bottom line is, Mr. Waterman, your motion to disqualify Mr. Campbell,
and Mr. Campbell, your motion to withdraw, are each denied."
On appeal, Waterman insists that (1) the district court failed to make an
appropriate inquiry into his concerns about Campbell's continued representation and (2)
he established a breakdown in communication and Campbell had a conflict of interest
because he had filed a complaint and a civil suit against him. We review a claim that a
district court erred by refusing to appoint new counsel to a criminal defendant for an
abuse of discretion. Breitenbach, 313 Kan. at 90. The defendant bears the burden of
showing an abuse of discretion. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011).
Waterman's adequacy-of-the-inquiry argument focuses on his contention that the
district court allegedly neglected to address the potential conflict and communication
breakdown between himself and Campbell. He contends that the district court refused to
allow him to present evidence during the hearing and did not inquire into the nature of the
disciplinary complaint or lawsuit he filed against Campbell.
32
If a defendant provides an articulated statement of attorney dissatisfaction, the
district court has a duty to make an inquiry into the matter to ensure the defendant's right
to counsel is honored. State v. Brown, 300 Kan. 565, 575, 331 P.3d 797 (2014). "A
district court abuses its discretion if it becomes aware of a potential conflict of interest
between a defendant and his or her attorney but fails to conduct an inquiry." State v.
Pfannenstiel, 302 Kan. 747, Syl. ¶ 5, 357 P.3d 877 (2015). "An appropriate inquiry
requires fully investigating (1) the basis for the defendant's dissatisfaction with counsel
and (2) the facts necessary for determining if that dissatisfaction warrants appointing new
counsel, that is, if the dissatisfaction is 'justifiable.'" 302 Kan. at 761.
Relevant here, the court's inquiry does not require "a detailed examination of every
nuance of a defendant's claim of inadequacy of defense and conflict of interest." State v.
Staten, 304 Kan. 957, 972, 377 P.3d 427 (2016). Rather, the Kansas Supreme Court has
found that "'[a] single, open-ended question by the trial court may suffice if it provides
the defendant with the opportunity to explain a conflict of interest, an irreconcilable
disagreement, or an inability to communicate with counsel.'" State v. Toothman, 310 Kan.
542, 554, 448 P.3d 1039 (2019).
We find the district court made a sufficient inquiry into the basis for Waterman's
dissatisfaction with Campbell. The record reflects that the district court had read the
motions filed by Waterman and Campbell, and the court was aware of the stated
concerns. The district court held a hearing, and Waterman and Campbell were allowed to
elaborate on their problems. The district court also was aware of Waterman's purported
civil claim against Campbell and the alleged ethical complaint. The district court made
findings on all these matters in denying the motions for substitute counsel.
Waterman also argues that the district court abused its discretion in finding he did
not establish a justifiable dissatisfaction supporting the appointment of new counsel
because he established both a breakdown of communication and a conflict of interest.
33
The Kansas Supreme Court has noted that disagreements or a lack of communication
between a defendant and counsel will not always rise to the level of justifiable
dissatisfaction. State v. Brown, 305 Kan. 413, 425, 382 P.3d 852 (2016). "'"[A]s long as
the trial court has a reasonable basis for believing the attorney-client relation has not
deteriorated to a point where appointed counsel can no longer give effective aid in the
fair presentation of a defense, the court is justified in refusing to appoint new counsel."'
[Citation omitted.]'' State v. Bryant, 285 Kan. 970, 986-87, 179 P.3d 1122 (2008).
Waterman and Campbell both alleged a breakdown in communication. Although
Campbell asserted that his relationship with Waterman was contentious and stated he was
unsure if he could continue effectively representing Waterman, he explained that over the
two years of his representation they had been able to correspond and meet about the case
and various motions. Campbell classified Waterman's displeasure with his representation
to be "both real and perceived." He clarified that Waterman simply did not want to
communicate and did not trust him because he believed Campbell worked for the court
and the State's interests. Despite Campbell's own request to withdraw, the district court
focused on the fact that Campbell had continued to provide effective representation,
which had not been adversely affected by the communication issues.
After going over the difficulties of Waterman and Campbell's relationship, the
district court explained that Waterman's inability to get along with Campbell was not
sufficient to constitute justifiable satisfaction. It noted that Waterman had displayed a
pattern of such behavior with all his other appointed attorneys. The district court found
that it was unlikely that Waterman could get along with a different attorney even if it
could find substitute counsel and permitted Campbell to withdraw. The Kansas Supreme
Court has noted that "when the defendant's dissatisfaction emanates from a complaint that
cannot be remedied or resolved by the appointment of new counsel—such that
replacement counsel would encounter the same conflict or dilemma—the defendant has
not shown the requisite justifiable dissatisfaction." Breitenbach, 313 Kan. at 90-91.
34
Waterman's claim of a communication breakdown was a recurring problem with
all the attorneys appointed to represent him—the record suggests that Waterman would
likely have developed the same communication problems with any attorney representing
him. The district court did not abuse its discretion in finding that Waterman's complaints
did not rise to the level of a complete breakdown of communication.
Waterman also alleges that he established he and Campbell had a conflict that
necessitated the appointment of substitute counsel. His argument mainly relies on the fact
that he sued Campbell and filed a disciplinary complaint against him.
A conflict of interests exists when an attorney is put in a position where divided
loyalty is likely, "and can include situations in which the caliber of an attorney's services
'may be substantially diluted.'" Pfannenstiel, 302 Kan. at 758. Ultimately, "[c]onflict of
interest and divided loyalty situations can take many forms, and whether an actual
conflict exists must be evaluated on the specific facts of each case." 302 Kan. at 758.
In his initial motion, Waterman asserted a far broader claim of conflict of interest
than against merely Campbell. He argued that essentially everyone involved in the case
was conflicted because he had "civil suits pending against the entire county." His main
complaint against Campbell was that he "has refused an[d] will not provide or secure
relevant evidence or information in my best interest." He later stated that he sued
Campbell and filed a disciplinary complaint against him and threatened to do so again
when the district court stated it was inclined to deny his motion for substitute counsel.
Even though Waterman may have initiated litigation and filed complaints against
Campbell, this court has previously held that a defendant's pending disciplinary case
against their counsel does not automatically create an irrevocable conflict of interest,
depending on the nature of the complaint. State v. Robertson, 30 Kan. App. 2d 639, 644-
49, 44 P.3d 1283 (2002). Waterman is correct that the district court did not ask him to
35
expound on the grounds for his lawsuit or disciplinary complaint against Campbell. Still,
the district court observed that Campbell was highly qualified and had been representing
Waterman "in a manner and custom consistent with the highest degree of professional
norms." Waterman presented no allegations showing that these actions taken against
Campbell affected the quality of Campbell's representation or that the friction between
them resulted in any divided loyalty on Campbell's part.
In sum, Waterman was a difficult defendant who went through seven court-
appointed attorneys and complained that most had conspired with the prosecutor to
secure his convictions. An asserted breakdown in communication will not rise to the level
of justifiable dissatisfaction if the district court's observation is that counsel can still
provide effective representation of the defendant. On this point, we must give substantial
deference to the district court. Here, the district court properly observed that Waterman's
refusal to cooperate with Campbell was a problem of his own making and that any new
counsel would have the same problems with Waterman as Campbell was having. Even a
defendant filing an ethical complaint or a civil lawsuit against counsel will not
automatically create an irrevocable conflict of interest because otherwise any criminal
defendant could always disqualify their lawyer by filing such proceedings. Considering
all the circumstances of Waterman's case, we conclude the district court did not abuse its
discretion by denying the motions for substitute counsel.
DID THE DISTRICT COURT ABUSE ITS DISCRETION
BY FAILING TO ASK JURORS ABOUT THEIR POTENTIAL BIASES?
In his pro se supplemental brief, Waterman argues the district court abused its
discretion by not asking jurors about their relationships to law enforcement, which he
contends deprived him of a fair trial. Waterman raised these concerns at trial when he
filed a pro se "Motion for a Mistrial due to Premeditated prejudice to violate Voir dire."
36
Waterman asked the district court to grant him a new trial or set a new jury although he
offered no details evincing any juror bias beyond alleged friendship with police officers.
Waterman does not cite any portions of the record to support his claim that any
jurors were allegedly biased against him. Nor does he explain why any such jurors could
not have simply been removed for cause under K.S.A. 22-3410 or with a peremptory
challenge under K.S.A. 2022 Supp. 22-3412. Because Waterman has not provided record
citations to bolster his claim or legal support for his argument that it was the district
court's job to address the matter sua sponte, we treat this issue as waived or abandoned.
See State v. Liles, 313 Kan. 772, 783-84, 490 P.3d 1206 (2021).
DID THE STATE INTRODUCE PERJURED TESTIMONY?
Also, in his pro se supplemental brief, Waterman argues this court should order a
new trial because the State knowingly used perjured testimony from Dwayne to secure
his convictions. Waterman cites no authority to support his argument and cites no portion
of the record to support his conclusory allegations. Waterman's argument is best
characterized as an attempt to impeach the credibility of Dwayne's testimony by pointing
out inconsistencies between his testimony at the preliminary hearing and at trial, which
he contends was encouraged by the State.
To show that his due process rights were violated by the State's introduction of
perjured testimony, Waterman would need to show "(1) the prosecution knowingly
solicited the perjured testimony, or (2) the prosecution failed to correct testimony it knew
was perjured." State v. Betts, 272 Kan. 369, Syl. ¶ 5, 33 P.3d 575 (2001), overruled on
other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). Waterman addresses
neither point beyond simply stating that Dwayne was making false statements and the
State knew of the falsity. He has not sufficiently briefed this issue, and an issue not
briefed is waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).
37
DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DENYING WATERMAN'S
MOTION FOR MISTRIAL BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL?
In his supplemental brief, Waterman asserts that he received ineffective assistance
of counsel from his trial counsel, Campbell. The State argues that this court should not
reach this issue because it is being raised for the first time on appeal, but its argument is
misplaced. Waterman filed a posttrial, pro se motion for a mistrial in which he alleged
that his counsel was ineffective. The district court addressed the motion and denied it at a
posttrial hearing on December 28, 2021. Thus, the issue is preserved for appeal.
To briefly review the pertinent facts, six days after the trial, Waterman filed a pro
se "Motion for Mistrial for Ineffective Assistance of Counsel." In his motion, Waterman
argued that a "mistrial" was required for his attorney's deficient performance. He argued
that Campbell should have presented more evidence on the varying sizes of the knife
wounds (which he alleged suggested that Dwayne had stabbed Bob after he did) and that
Campbell did not sufficiently impeach the credibility of Bob and Dwayne's testimony.
Campbell also moved for a new trial on Waterman's behalf based on violation of court
orders relating to the treatment of Waterman during the trial and for improper contact
between the jurors and law enforcement. But because Waterman filed a formal
disciplinary complaint against Campbell and also named Campbell as a party in a federal
lawsuit, Campbell moved to withdraw from the case due to a conflict.
At the hearing on the posttrial motions, the district court first addressed
Campbell's motion to withdraw. Campbell explained to the court that he believed he
needed to request to withdraw because of the disciplinary complaint. In response to the
court's questioning, Campbell stated that he would do his best to continue to zealously
advocate for Waterman. But Campbell also added, "I dispute the allegations that he filed
in his motion for ineffective assistance. I dispute what he alleged in the disciplinary
complaint." The district court denied Campbell's motion to withdraw.
38
Next, the district court addressed Waterman's pro se motion for a mistrial. Without
asking Campbell whether he could argue the motion on Waterman's behalf, the district
court simply asked Waterman to address the motion. Waterman argued the motion
himself, reasserting his claim that he should receive a "mistrial" because of Cambell's
ineffective representation at trial. Waterman focused his argument on Campbell's failure
to highlight the different sizes of the knife wounds Bob suffered. The district court denied
Waterman's motion, finding that Waterman had received "very effective assistance of
counsel" at his trial. Finally, the district court addressed Campbell's motion for new trial
and after hearing arguments from counsel, the district court denied that motion, as well.
On appeal, Waterman's pro se supplemental brief argues only that the district court
abused its discretion in denying his motion for mistrial based on ineffective assistance of
counsel. But the brief filed by Waterman's counsel claims the district court committed
structural error by denying the appointment of conflict-free counsel to argue Waterman's
posttrial motion and requiring Waterman to argue the motion himself. Waterman argues
that at the posttrial hearings, "Campbell was forced to choose to defend himself or his
client. In the end, Campbell stood silent. [Waterman] was left to argue his motion for
ineffective assistance of counsel without the aid of counsel." He asserts "[t]he failure to
appoint new counsel was structural error and cannot be passed over as harmless error."
The State responds that "new counsel should not be required every time a
defendant mentions the words ineffective assistance of counsel." The State asserts that
the allegations in Waterman's pro se motion were conclusory and not supported by the
evidence. As a result, Campbell's performance was not deficient. The State also argues
that "no prejudice occurred because . . . Waterman's confession on the stand and the
incriminating texts and letter unquestionably establish his guilt of attempted murder."
It is the task of the district court to ensure that a defendant's right to counsel under
the Sixth Amendment to the United States Constitution is honored. State v. Sharkey, 299
39
Kan. 87, 96, 322 P.3d 325 (2014). In order to fulfill this duty, when the district court
becomes aware of a possible conflict of interest between an attorney and a defendant
charged with a felony, the court has a duty to inquire further. 299 Kan. at 96. If an
appropriate inquiry is made, the district court's decision is reviewed under an abuse of
discretion standard. 299 Kan. at 96-97. But a district court abuses its discretion when it
makes no inquiry into the nature of the conflict. 299 Kan. at 97.
We begin by finding that Waterman's pro se motion for "mistrial" clearly should
be construed as a motion for new trial alleging ineffective assistance of counsel. "'[P]ro se
pleadings are to be liberally construed to give effect to their content rather than adhering
to any labels and forms used to articulate the pro se litigant's arguments.' [Citation
omitted.]." State v. Gilbert, 299 Kan. 797, 798, 326 P.3d 1060 (2014). And Waterman
filed his motion six days after the trial, so it was timely. See K.S.A. 22-2301(1)
(providing that a motion for new trial generally must be filed within 14 days after the
verdict or finding of guilt). Thus, the issue in this appeal is whether the district court
committed structural error by denying the appointment of conflict-free counsel to argue
Waterman's motion for new trial alleging ineffective assistance of counsel.
The Kansas Supreme Court addressed this issue in Sharkey, 299 Kan. at 91-101.
Sharkey was found guilty by a jury of aggravated indecent liberties with a child. Seven
days after the trial, he filed a pro se motion for new trial based on ineffective assistance
of counsel and also a motion for new counsel. Sharkey's counsel also filed a motion for
new trial. At the hearing, the district court made no inquiry into the nature of the conflict
between Sharkey and his counsel and simply asked Sharkey to argue his own motion,
which the district court denied. Sharkey's counsel also argued his motion for new trial
which the district court denied. On appeal, Sharkey argued the district court should have
appointed conflict-free counsel to assist him in arguing his pro se motion for new trial.
40
Our Supreme Court began its analysis by finding that a timely motion for new trial
is a critical stage of the criminal proceedings, and because Sharkey's motion was timely,
he had a right under the Sixth Amendment to be represented by conflict-free counsel at
the hearing on his pro se motion for new trial. 299 Kan. at 96. Next, the court observed
that the potential of a conflict of interests between Sharkey and his counsel was apparent
because Sharkey was alleging ineffective assistance of counsel. Faced with this conflict,
the trial judge was required to make an appropriate inquiry into the conflict, and the
failure to do so was an abuse of discretion. 299 Kan. at 98.
Our Supreme Court then addressed the effect of the district court's abuse of
discretion and, specifically, whether Sharkey must show he was prejudiced by having to
represent himself on his pro se motion for new trial. In this analysis, the court observed
that there are three categories of ineffective assistance of counsel claims brought under
the Sixth Amendment according to Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct.
1237, 152 L. Ed. 2d 291 (2002). 299 Kan. at 100.
"The first category includes cases in which it is claimed that counsel's performance was
so deficient that the defendant was denied a fair trial. These claims are controlled by
Strickland [v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)]. . . . The second category applies when the assistance of counsel was denied
entirely or denied at a critical stage of the proceedings. United States v. Cronic, 466 U.S.
648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), defines the standard that applies
to these claims. The third category includes situations where the defendant's counsel
'actively represented conflicting interests.' Mickens, 535 U.S. at 166." 299 Kan. at 100.
Our Supreme Court found that Sharkey's situation where he was denied conflict-
free counsel to argue his motion for new trial alleging ineffective assistance of counsel
fell under the second Mickens category—the Cronic exception—where the denial of the
assistance of counsel at a critical stage of the proceedings presented circumstances of
such magnitude that prejudice to the defendant is presumed. 299 Kan. at 100-01. The
41
court found that "[u]nder Cronic, Sharkey was constructively denied his right to counsel
because of his attorney's conflict of interests; he effectively had no legal representation at
the motions hearing. . . . This leads to a presumption of prejudice." 299 Kan. at 101. As a
result, our Supreme Court remanded the case to district court with instructions to hold a
new hearing on Sharkey's pro se motion for new trial with conflict-free counsel appointed
to argue the motion. 299 Kan. at 101. See Fuller v. State, 303 Kan. 478, 495-503, 363
P.3d 373 (2015) (holding the same as Sharkey in a case arising under K.S.A. 60-1507).
Sharkey controls the outcome of Waterman's case. After Waterman was found
guilty at trial, he filed a timely pro se motion for new trial alleging ineffective assistance
of counsel. At the hearing, the district court conducted enough of an inquiry with
Campbell to learn that Waterman had filed a disciplinary complaint against Campbell.
But the district court only seemed concerned with whether Campbell could argue his own
motion for new trial. The district court ignored the more obvious conflict that Waterman
was alleging that Campbell provided ineffective assistance at his trial. On the pro se
motion, the district court simply addressed Waterman and asked him to argue his motion
without the assistance of counsel. Campbell not only stood silent on this motion, but he
argued against it by saying, "I dispute the allegations that [Waterman] filed in his motion
for ineffective assistance." As in Sharkey, Waterman "was constructively denied his right
to counsel because of his attorney's conflict of interests; he effectively had no legal
representation at the motions hearing." 299 Kan. at 101.
The State argues that no prejudice occurred here because Waterman's claims in his
motion were conclusory and because of the overwhelming evidence of Waterman's guilt.
But Waterman's situation falls under the Cronic exception for a claim of ineffective
assistance of counsel. Sharkey, 299 Kan. at 100-01. Because Waterman was denied
conflict-free counsel at a critical stage of his criminal proceedings, he need not show
prejudice to receive relief. We do not dispute the notion that this may be considered a
harsh result. But it is not our court's function at this stage of the proceedings to evaluate
42
the merits of Waterman's motion, nor do we weigh the evidence against him at trial.
Perhaps if the district court had found some procedural reason not to address Waterman's
motion, for instance if the motion had been untimely, then Waterman might not be
entitled to any relief on appeal. But here the district court required Waterman to argue his
timely motion for new trial without the assistance of legal counsel. Under Cronic and
Sharkey, legal precedents that this court is duty bound to follow, this procedure amounted
to structural error and Waterman need not show prejudice to receive relief.
This is not to say that the district court must appoint counsel to represent a
criminal defendant on all pro se motions. In fact, the district court, at its discretion, need
not address every pro se motion filed in a criminal case when the defendant is represented
by counsel. State v. Pollard, 306 Kan. 823, 843, 397 P.3d 1167 (2017). In Kansas, a party
has the right to represent themselves or to be represented by counsel, but they have no
right to hybrid representation. State v. Holmes, 278 Kan. 603, 620, 102 P.3d 406 (2004).
It is only when a defendant's pro se motion alleges a possible conflict of interest between
the defendant and counsel does the district court have a duty to inquire into the nature of
the conflict to determine if substitute counsel is needed. Sharkey, 299 Kan. at 96.
Waterman's pro se motion alleging ineffective assistance of counsel raised a
conflict of interest between Waterman and Campbell, and the district court erred by
requiring Waterman to argue the motion without further inquiry into the nature of the
conflict. As in Sharkey, we must remand this case to district court to hold a new hearing
on Waterman's pro se motion for new trial alleging ineffective assistance of counsel, with
new conflict-free counsel appointed to argue the motion. To be clear, to receive relief at
this hearing, Waterman will be required to show that he was prejudiced by the alleged
ineffective assistance of counsel, as that claim will be controlled by Strickland, 466 U.S.
at 687. If on remand the district court denies the motion, finding no ineffective assistance
of counsel, a new trial is unnecessary. But if the district court grants the motion, finding
ineffective assistance of counsel, a new trial must be held and trial counsel appointed.
43
DID CUMULATIVE ERROR DEPRIVE WATERMAN OF HIS RIGHT TO A FAIR TRIAL?
Waterman argues cumulative error denied him a fair trial. Cumulative trial errors,
when considered together, may require reversal of the defendant's conviction when the
totality of the circumstances establish that the defendant was substantially prejudiced by
the errors and denied a fair trial. Alfaro-Valleda, 314 Kan. at 551-52.
We have identified only two possible trial errors. First, we found that any error in
failing to instruct the jury on the lesser offense of criminal restraint was harmless.
Second, we found the district court committed structural error by requiring Waterman to
argue his pro se motion for new trial without the assistance of conflict-free legal counsel,
and we have granted relief for this error. Even when these errors are viewed collectively,
we find that Waterman is entitled to no relief under the cumulative error rule.
DID WATERMAN RECEIVE AN ILLEGAL SENTENCE?
Waterman argues that his sentence is illegal because the district court improperly
included three prior misdemeanors (which it aggregated into a felony) when calculating
his criminal history score. The State concedes that Waterman's sentence is illegal.
The court may correct an illegal sentence at any time while the defendant is still
serving the sentence. K.S.A. 2022 Supp. 22-3504. An illegal sentence claim may be
raised for the first time on appeal. State v. Dickey, 301 Kan. 1018, 1031, 350 P.3d 1054
(2015). Whether a sentence is illegal under K.S.A. 22-3504 is a question of law subject to
unlimited review. State v. Mitchell, 315 Kan. 156, 158, 505 P.3d 739 (2022).
Waterman raises separate challenges to the inclusion of misdemeanor convictions
from Missouri and Oklahoma that were used to calculate his criminal history score. As
for the Missouri conviction, Waterman argues the conviction was uncounseled and
44
obtained in violation of his Sixth Amendment right to counsel and, therefore, could not
be used in calculating his criminal history score. The Kansas Supreme Court has noted
that "[a]n uncounseled misdemeanor conviction obtained in violation of the
misdemeanant's Sixth Amendment right to counsel may not be collaterally used for
sentence enhancement in a subsequent criminal proceeding." State v. Youngblood, 288
Kan. 659, Syl. ¶ 3, 206 P.3d 518 (2009). Here, the State agrees that based on the current
record, Waterman's Missouri misdemeanor conviction was uncounseled. Thus, the
district court erred by including this conviction in Waterman's criminal history score.
Waterman next argues that his accelerated deferred judgment for domestic assault
and battery from Oklahoma should not have been included in his criminal history score.
He relies on State v. Hankins, 304 Kan. 226, 233-39, 372 P.3d 1124 (2016), in support of
his argument that the Oklahoma offense is a deferred judgment and cannot be included in
his criminal history score. Waterman's reliance on Hankins is misplaced, as it fails to
address the difference between a deferred judgment and an accelerated deferred judgment
under Oklahoma law. In Hankins, the defendant received a deferred judgment, which, as
the Kansas Supreme Court explained, operates similarly to diversion and defers not only
a defendant's sentence but also judgment. A deferred judgment, similar to a diversion
agreement, cannot be included in a defendant's criminal history score. 304 Kan. at 238-
39.
Waterman's conviction was not a deferred judgment, it was an accelerated deferred
judgment under Okla. Stat. Ann. § 991c(G), which operates as a judgment of guilt. The
statute provides: "Upon any violation of the deferred judgment, other than a technical
violation, the court may enter a judgment of guilt . . . ." Okla. Stat. Ann. § 991c(G). Thus,
it appears that Waterman violated the conditions of his deferred judgment and received
an accelerated deferred judgment—that is, a conviction/judgment of guilt. As a result, the
Oklahoma conviction was properly included in his criminal history score.
45
Because the district court improperly included Waterman's uncounseled Missouri
misdemeanor conviction, his sentence is illegal. Thus, we vacate Waterman's sentence
and remand for resentencing using a correct criminal history score.
CONCLUSION AND REMAND ORDER
Waterman's sentence is vacated. We remand this case to district court for
resentencing and to hold a new hearing on Waterman's pro se motion for new trial
alleging ineffective assistance of counsel, with new conflict-free counsel appointed to
argue the motion. If on remand the district court denies the motion, finding no ineffective
assistance of counsel, a new trial is unnecessary and the district court can resentence
Waterman using a correct criminal history score. But if the district court grants the
motion for new trial, finding ineffective assistance of counsel, a new trial must be held
and trial counsel appointed.
Affirmed in part, reversed in part, sentence vacated, and case remanded with
directions.
46