This аppeal arises under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. A civil jury declared Robert Ontiberos a sexually violent predator and determined he should be committed for treatment until he is safe for release. The Court of Appeals vacated the commitment and remanded for a new trial because it held that Ontiberos received ineffective assistance of counsel and that the State’s attorney committed misconduct during the trial. In re Care b Treatment of Ontiberos,
We hold that due process guarantees a person facing civil commitment under the KSVPA a right to counsel at trial, and that person may challenge the effectiveness of his or her trial counsel on direct appeal or under K.S.A. 60-1501. Based on those holdings, Ontiberos’ constitutional claim lacks merit. We also hold that his trial counsel was ineffective and that the State committed misconduct. These holdings require remand for a new trial.
Factual and Procedural Background
Ontiberos has two convictions for sexually violent offenses as defined by the KSVPA. He was convicted of attempted rape in 1983 and aggravated sexual battery in 2001. Ontiberos was charged with lewd and lascivious behavior in 1991, but that was dropped in exchange for a guilty plea for possession of cocaine. Therе were also two uncharged incidents of alleged sexual misconduct in 1991 and 1999.
Before Ontiberos was released from prison for the aggravated sexual battery conviction, the State filed a petition alleging he could be a sexually violent predator as defined by the KSVPA and should be civilly committed for treatment. Greg Barker was appointed to represent Ontiberos. The State was represented by a special assistant attorney general appointed from tíre Sedgwick County District Attorneys Office. The parties stipulated to probable cause, so the matter proceeded to trial.
The Parties’ Stipulation
Over 3,500 pages of discovery documents were compiled, but most are irrelevant to the KSVPA proceedings. The pertinent documents include: (1) police reports and witness statements from the three alleged offenses that did not result in convictions; (2) a 2006 discharge summary from a sexual offender treatment program On-tiberos participated in while imprisoned that contained a Static-99 test result concluding Ontiberos was a “lower risk” to reoffend; (3) the results from a penile plethysmograph test administered to On-tiberos in 2005 as part of a sexual offender treatment program; and (4) documents completed
The parties agree that they orally stipulated as to how Exhibit 1 would be used at trial, but now dispute the scope of what was agreed to, including whether the State was permitted to cross-examine Ontiberos with documents from Exhibit 1. There is no written stipulation. The parties agree they stipulated that all documents within Exhibit 1, including clinicians’ reports: (1) could be reviewed by the expert witnesses when forming opinions; (2) could be used to examine those expert witnesses at trial; and (3) would be included in the appellate record. The district court did not take possession of the records comprising Exhibit 1, none of the documents referenced at trial were separated and made into another exhibit for more convenient reference in the record, and none of the documents were provided to the juiy for its review.
The Experts’ Reports/Testimony
. Prior to trial, the district court ordered a state psychologist to evaluate Ontiberos as authorized by K.S.A. 59-29a05(d). Consistent with the parties’ stipulation, the state’s psychologist, Dr. Deborah McCoy, reviewed all the discovery documents contained within what became Exhibit 1. She also interviewed Ontiberos. She diagnosed him with paraphilia not otherwise specified, with themes of exhibitionism and nonconsent, as well as a personality disorder not otherwise specified, with antisocial features, polysubstance dependence, and sexual abuse of an adult. The “not otherwise specified” diagnosis means the conditions do not fit into specific diagnostic categories found in the Diagnostic and Statistical Manual of Mental Disorders, DSM—IV. Dr. McCoy concluded that Onti-beros met the criteria of a sexually violent predator under the KSVPA based upon two actuarial risk assessment tests she administered—the Minnesota Sex Offender Screening Tool Revised (MnSOST-R) and the Static-99.
The MnSOST test results placed Ontiberos in a moderate risk category. Under that test, 29 percent of individuals with similar risk factors were rearrested for a new sex offense within 6 years. But Dr. McCoy concluded that Ontiberos fell within the high risk category for sexual recidivism under the Static-99. Dr. McCoy testified Ontiberos’ chances of reconviction under that test were 39 percent after 5 years, 45 percent after 10 years, and 52 percent after 15 years. In her report, Dr. McCoy noted her results were different than some previously administered Static-99 assessments, and she indicated she did not know what caused the difference. At trial, Ontiberos’ counsel did not ask Dr. McCoy about any test results that conflicted with her findings, including the test results from the 2006 discharge summary included in Exhibit 1.
Dr. Robert Barnett, also a clinical psychologist, examined On-tiberos as a defense expert. Dr. Barnett reviewed Ontiberos’ records “that were provided to [him]” and met with Ontiberos’ counsel about the case. Dr. Barnett did not administer the Static-99 or the MnSOST-R because he considered them to be controversial instruments. Pie explained this by noting that both tests purport to predict the percentage likelihood to reoffend, but if only half of the people Hice Ontiberos reoffended “[t]here’s no way—simply no logical way to say which group [Ontiberos] would fall in[to].” Dr. Barnett also testified the Static-99 and MnSOST-R tend to produce different scores, even though they are supposed to measure the same thing.
Dr. Barnett testified that research had shown two tests to be reliable for deviant responses—the penile plethysmograph and the Hare Psychopathy Checklist Revised. And he said that he wished Lamed personnel would use the plethysmograph because they have the equipment to conduct that test. Dr. Barnett was apparently unaware that Ontiberos had taken a plethysmograph in 2005, and that the results were contained in Exhibit 1. Ontiberos’ attorney did not ask Dr. Barnett about the 2006 discharge summary’s Static-99 results that conflicted with Dr. McCoy’s test results.
The jury found Ontiberos was a sexually violent predator. He was committed to State custody for treatment until determined to be safe for release. Additional descriptions about the evidence presented and conduct of the trial will be discussed as necessary for the issues presented.
The Ineffective Assistance of Counsel Hearing
Ontiberos timely appealed to the Kansas Court of Appeals and was appointed new counsel, who filed a motion alleging Ontiberos received ineffective assistance of trial counsel and requested remand to the district court for an evidentiaiy hearing under State v. Van Cleave,
Once back in the district court, Ontiberos argued that his right to effective assistance of counsel arising from the Sixth Amendment to the United States Constitution was violated due to his attorney’s performance errors. He cited the test used to examine ineffective assistance of counsel claims in criminal cases, which was developed under Strickland v. Washington,
Regarding the stipulation, Bennett admitted that statements in the police reports in Exhibit 1 would have been hearsay under the rules of evidence, but he claimed he could have gotten them admitted by calling the necessary witnesses: court clerks, a Department of Corrections records custodian, and a Lamed records custodian. Bennett explained that Ontiberos’ counsel agreed to the stipulation because “there was no sense in jumping through all those [procedural] hoops when I could get it in irrespective.” Bennett also testified that he believed the police reports were admis1 sible business recoi'ds under the hearsay exception in K.S.A. 60-460m. In the alternative, Bennett added that he could have called the individual police officers who were at the scene, specifically mentioning an officer from Ontiberos’ 2001 conviction. Bennett further testified that he could have avoided double hearsay problems in the police reports by calling the victims and witnesses to each crime to testify. He said he specifically talked to Ontiberos’ mother-in-law, who was the victim of the 2001 aggravated sexual battery conviction, but did not issue
As to a corrections department discipline report regarding the alleged knife incident the State raised at trial while questioning Ontiberos’ expert, Ontiberos testified on remand that he was never disciplined for possessing a weapon. Bennett testified that he perused the 3,500 page record for 20 minutes before the Van Cleave hearing and could not find any reference to an incident involving a knife. But he added that he “wouldn’t have asked [a question about it] if it didn’t come from somewhere.”
Ontiberos’ trial attorney, Barker; testified that he considered “very thoroughly” whether to stipulate to the documents comprising Exhibit 1 and agreed because he did not want the entire exhibit given to the juiy to peruse or have multiple prosecution witnesses piling on cumulative evidence about things contained within the documents. Barker also testified he was unaware of this court’s Gonzalez decision regarding restrictions on an expert witness’ ability to rely on hearsay evidence when forming an opinion. He further testified he could not recall whether he was aware during the original trial that Ontiberos had taken the Static-99 on different occasions with different results, but said he had reviewed the entire disсovery record before trial and did not see anything that would help Ontiberos. He described his trial strategy as:
"to attack the very validity and accuracy of these tests. Therefore, I could not hardly attack one score based upon an invalid system then come in front of the jury with this one you just showed me and say, Oh look, here’s a good one. It’s either a reliable system or it isn’t, and we all have to chose tactics in our trials. I chose the tactic of attacking the very validity of the Static-99 itself. I would agree that the variation between this test and the one Dr. McCoy did might arguably support that, but I simply chose to attack the primary through Dr. Barnett’s expertise.” (Emphasis added.)
While ruling from the bench on Ontiberos’ ineffective assistance of counsel claim, the district court held that even though this was a civil case, the court believed criminal caselaw was applicable and recited the two-part Strickland test. The district court further held that Ontiberos received effective assistance of counsel and that neither of the Strickland prongs was satisfied. A journal entry from the Van Cleave hearing was added to the appellate record at the Court of Appeals’ request.
The Court of Appeals Decision
On appeal, Ontiberos argued the KSVPA was unconstitutional because it did not provide an explicit mechanism to challenge trial counsel’s effectiveness. He also argued that he received inеffective assistance of trial counsel and that the State’s attorney committed misconduct so egregious that reversal was required.
As to the first point, the Court of Appeals held that Ontiberos had a statutory right to counsel and that an ineffective assistance of counsel claim could be raised through the Van Cleave procedure. For those reasons, it denied Ontiberos’ claim that the KSVPA was unconstitutional. Ontiberos,
As to the second and third claims, the panel held that the appropriate standard of review required determination as to whether Ontiberos’ right to- a fair trial was violated; and then using that standard, it held Ontiberos was denied a fair trial. The court also held that the State’s attorney committed misconduct by improperly using portions of Exhibit 1 to cross-examine Ontiberos and by mis-characterizing evidence regarding the “knife incident.”
The State filed a petition for review with this court and Onti-beros cross-petitioned. This court has jurisdiction under K.S.A. 20-3018(b) (review of Court of Appeals decision).
Analysis
In his cross-petition, Ontiberos continues to assert the KSVPA is unconstitutional because it lacks a mechanism for persons committed under the act to challenge their trial counsel’s performance. In the alternative, he argues his civil commitment must be reversed because he received ineffective assistance of counsel and the State’s attorney committed misconduct at trial. We address Onti-beros’ constitutional arguments first.
The threshold question is whether Ontiberos has a right to counsel arising from the KSVPA, the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution, or Section 18 of the Kansas Constitution Bill of Rights. We hold he has a right to counsel under the federal and state constitutional due process provisions, but we begin by examining the KSVPA.
Background
The KSVPA is a comprehensive statutory sсheme for the civil commitment of sexually violent predators originally enacted in 1994. L. 1994, ch. 316, sec. 1. The United States Supreme Court twice approved challenged procedures set out in the act. See Kansas v. Crane,
Like the procedure used in this case, the State usually initiates KSVPA civil commitment proceedings when an inmate is nearing release for a criminal offense qualifying for commitment under the act. The KSVPA requires that the agency with authority over release of individuals who may meet statutory criteria notify the attorney general 90 days prior to release. K.S.A. 59-29a03(a). The attorney general then has the person’s records studied by a prosecutor’s review committee to make an initial determination whether the person meets the sexually violent predator definition. K.S.A. 59-29a03(e). Based on that assessment, the attorney general may file a petition in the county where the person was convicted, alleging that the person is a sexually violent predator and stating sufficient facts to support thе allegation. K.S.A. 59-29a04(a). Once the petition is filed, a judge must determine whether probable cause exists to believe the person is a sexually violent predator and should be taken into custody. K.S.A. 59-29a05(a). Once in custody, a probable cause hearing is required within 72 hours. K.S.A. 59-29a05(b). The detained person has a statutory right to be represented by counsel at the probable cause hearing. K.S.A. 59-29a05(c)(l).
If probable cause is determined to exist and the matter proceeds to trial, the KSVPA provides that a determination that a person is a sexually violent predator must be made beyond a reasonable doubt. K.S.A. 59-29a07(a). And when a court or jury is satisfied beyond a reasonable doubt that person must be committed to the custody of the secretary of social and rehabilitation services “for control, care and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large,” the person is committed indefinitely. K.S.A. 59-29a07(a).
Of interest in this case, K.S.A. 59-29a06(b) provides that “[a]t all stages of the [KSVPA] proceedings . . . any person subject to K.S.A. 59-29a01 et seq., and amendments thereto,
Right to Effective Counsel at the KSVPA Trial
This court has held that when there is a right to counsel there is necessarily a correlative right to effective counsel—regardless of whether the right derives from a statute or the constitution. See Albright v. State,
But the conclusion that K.S.A. 60-29a06(b) establishes a statutory right to counsel is diminished by K.S.A. 59-29a06(e), which follows up the recitation of that requirement by stating “[t]he provisions of this section are not jurisdictional, and failure to comply with such provisions in no way prevents the attorney general from proceeding against a person otherwise subject to the [KSVPA].” (Emphasis added.) Arguably, this language could be read to mean that the failure to comply with the statute regarding assistance of counsel is not a barrier to proceeding against a person under the KSVPA. If so, the provision for counsel in subsection (b) is made less certain by the subsequent subsection (e) in the same statute. And since the Court of Appeals expressly held there is no constitutional right to counsel for KSVPA proceedings, this equivocation in K.S.A. 59-29a06 increases in importance for the issue presented. This compels us to address whether a person is entitled to counsel in a KSVPA proceeding under the constitution.
In holding that Ontiberos does not have a constitutional right to counsel, the Court of Appeals relied on an analogy to this court’s K.S.A. 60-1507 caselaw, particularly Brown,
K.S.A. 60-1507 motions are procedurally distinguishable because prisoners in 1507 proceedings have already been afforded exercise of their Sixth Amendment right to counsel at trial and their direct appeal. And the cases Brown cited, particularly the United States Supreme Court’s Finley decision, did not rely on the civil nature of a defendant’s collateral attack upon a conviction when they held that a defendant does not have a constitutional right to counsel in those proceedings.
When determining what due process protections are required in a particular proceeding, this court follows the same three factor test used by the United States Supreme Court. We examine: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens the additional or substitute procedural requirements would entail. In re J.D.C.,
Due process is not a technical concept with fixed content unrelated to time, place, and circumstances. Instead, its requirements are “ ‘flexible and [call] for such procedural protections as the particular situation demands.’ ”
The Court has not addressed the right to counsel in a sexually violent predator proceeding, but it has addressed this right in a civil commitment proceeding based on a mental disease. Vitek v. Jones,
A majority of the Vitek Court recognized that the transfer to a mental hospital “implicates a liberty interest protected by the Due Process Clause.”
While Vitek is not dispositive of the issue in this case, it is strong authority for finding that Ontiberos has a due process right to counsel. And it has been used by other courts considering the same issue raised by Ontiberos to hold that such a right exists. For example, the Virginia Supreme Court determined that sex offenders have a due process right to counsel at all stages of the proceeding, including the appeal, based upon
The first factor—the private interest affected by the KSVPA proceedings—supports holding that a due process right exists. Onti-beros’ liberty is the private interest affected, and stronger due process rights attach to liberty interests. Indeed, it is difficult to conceive of a stronger liberty interest because Ontiberos’ confinement has the potential of being indefinite and it includes participation in a sex offender treatment program while committed to state custody. Ontiberos’ interest is certainly greater than the prisoner’s interest in Vitek because Ontiberos would be free from state custody were it not for the KSVPA proceeding, whereas Vitek would have been transferred back to prison. Therefore, Ontiberos’ private interest is substantially constricted by the KSVPA proceedings.
The second factor—the risk of the erroneous deprivation of that interest—does not weigh as strongly in Ontiberos’ favor as the first. The KSVPA provides several protections to ensure that persons are not wrongly determined to be sexual predators and committed under the Act. See K.S.A. 59-29a05 (right to probable cause hearing with counsel and the opportunity to present evidence); K.S.A. 59-29a06(b) (right to counsel “[a]t all stages of the proceedings” and access to a qualified expert at the State’s expense); K.S.A. 59-29a07 (must prove beyond a reasonable doubt). One important consideration- is whether the State is represented by counsel at the KSVPA commitment proceeding. See Turner,
The third factor is the government’s interest in the proceedings and the fiscal and administrative burdens appointment of counsel would entail. The burden of providing counsel is small when compared to the substantial liberty issue at risk here. In addition, the various protections and provisions benefiting a person subject to these proceedings that are provided by the KSVPA certainly imply that the legislature perceived a person’s substantial stake in the process and its outcomes.
We hold that the caselaw and the Mathews factors support a holding that Ontiberos has a due process right to the appointment of counsel at the KSVPA trial. The Court of Appeals erred by holding otherwise. And since we have held that there is a constitutional right to assistance of counsel in KSVPA proceedings, our caselaw instructs that this right carries with it a correlative right to competent, effective counsel. Mbright,
Ability to Challenge Effectiveness of KSVPA Trial Counsel
Ontiberos argues there is no way to challenge ineffective assistance of counsel on direct appeal and argues further that ineffective assistance cannot be the subject of a collateral attack through the habeas corpus statute, K.S.A. 60-1501. The State points out that Ontiberos, in fact, did bring such a claim on direct appeal. Onti-beros counters that the Court of Appeals had no authority to grant his motion for a Van Cleave-type hearing.
In Van Cleave, the defendant received new counsel to directly appeal his criminal conviction, and his appellate counsel argued for the first time on appeal that Van Cleave’s trial counsel was ineffective. This court held that allegations of ineffective assistance of counsel would not be considered for the first time on appeal because the trial court, which observed counsel’s performance and knew the trial strategy, was in a better position than the appellate courts to consider counsel’s competence.
The obvious distinction from Van Cleave is that K.S.A. 60-1507 would not apply to a KSVPA proceeding. See K.S.A. 60-1507(a) (defining statute’s scope as extending to a prisoner in custody under a sentence). But the State argues that K.S.A. 60-1501 applies to persons committed under the KSVPA. It cites Johnson v. State,
Ontiberos’ claim lacks merit because it contradicts the plain language of the 60-1501 statute and is premised mostly on the fact that Ontiberos is the first litigant to attempt to raise 60-1501’s application to issues not premised on conditions of confinement. But novelty is not infirmity. The relevant portion of K.S.A. 60-1501(a) stаtes:
“Subject to the provisions of K.S.A. 60-1507. . , any person in this state who is detained, confined, or restrained of liberty on any pretense whatsoever,... physically present in this state may prosecute a writ of habeas corpus in the supreme court, court of appeals or the district court of the county in which such restraint is taking place.” (Emphasis added.)
The statute’s plain language provides a remedy to any detained person who is excluded from K.S.A. 60-1507’s provisions. And while Ontiberos is correct that Johnson can be distinguished because it involved prisoners challenging conditions of confinement, it is nevertheless strong support that persons detained under the KSVPA may utilize 60-1501 to challenge the effectiveness of trial counsel. The Court of Appeals interpreted Johnson to hold that a sexually violent predator may seek relief under K.S.A. 60-1501 for any challenges to the legal process due, including the effective assistance of counsel. Ontiberos,
We hold that a person detained under the KSVPA may raise an ineffective assistance of trial counsel claim on direct appeal using the Van Cleave remand procedure or through a collateral attack using K.S.A. 60-1501. Ontiberos’ claim that the KSVPA is unconstitutional is without merit. We next consider whether Ontiberos received the effective assistance of counsel to which he was entitled at his KSVPA trial.
Application of Strickland
Ontiberos cites numerous triаl errors amounting to the ineffective assistance of counsel, but the threshold question is what test applies to his claim. The State urges us to adopt the two-prong ineffective assistance
We hold that the two-prong Strickland test applies because On-tiberos’ right to counsel arises from a constitutional right similar to the rights attendant to a criminal trial. We begin by explaining why we decline to adopt the fair trial framework for Ontiberos’ ineffective assistance of counsel claims, and then we address the misconduct allegations.
In Smith v. Blakey, Administrator,
This same fair trial standard has been applied in subsequent cases when a civil litigant alleged opposing counsel committed misconduct. See McKissick v. Frye,
The State urges us to adopt tire Strickland standard applicable in criminal cases because it is well-known and easy to apply. Numerous other jurisdictions use Strickland for claims of ineffective assistance of counsel raised by persons committed under that state’s sexually violent predator law. See, e.g., Jenkins,
Most of these cases lack any significant analysis as to why Strickland was adopted, but the Washington Court of Appeals explained that it found the Strickland analysis appropriate in civil commitment proceedings, even though it is “rooted in Sixth Amendment protections,” in part because tire Strickland standard is well known, supported by a well-developed body of caselaw, and the majority of jurisdictions follow it. In re Detention of T.A.H.-L,
In the Montana case, the civil litigant was involuntarily committed after a court determined she had a mental disorder and was a
The KG.F. court considered five factors, which it adopted from portions of the National Center for State Courts’ Guidelines for Involuntaiy Civil Commitment, as to whether: (1) competent counsel was appointed; (2) counsel conducted a thorough review of all records; (3) counsel knew what the client wanted to occur; (4) the client knowingly and voluntarily talked to the clinicians and/or was the client advised of the right to remain silent or attend the examination; and (5) counsel vigorously advocated for his or her client.
The Montana court’s criticism of Strickland appears partially based on the abbreviated, 2-day time frame in which persons found to be a danger to themselves are civilly committed under Montana’s commitment statutes.
Notably, no other jurisdiction follows the Montana court’s approach. See In re Daryll C.,
Although there is some merit to applying the fair trial rubric this court adopted in Smith,
Ineffectiveness of Trial Counsel
Ontiberos argues his trial counsel was ineffective because he: (1) failed to use evidence corroborating Ontiberos’ expert’s testimony
Standard of Review
The same standard of review adopted to review a criminal defendant’s ineffective assistance of counsel claim applies here. Ineffective assistance of counsel claims involve mixed questions of law and fact requiring de novo review. Thompson v. State,
“The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate die distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation omitted.]
“Once a defendant has established counsel’s deficient performance, tire defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in tire outcome. A court hearing an ineffectivеness claim must consider tire totality of the evidence before the judge or jury. [Citation omitted.]” Bledsoe v. State,283 Kan. 81 , 90-91,150 P.3d 868 (2007).
Since the district court conducted an evidentiary hearing on On-tiberos’ motion, we review any factual findings for substantial competent evidence and evaluate whether those findings support the trial judge’s conclusions of law. See Thompson,
Failure to Introduce Corroborating Evidence
Exhibit 1 contains results from a Static-99 administered to On-tiberos in 2006 as part of Ontiberos’ sexual offender treatment program. Those 2006 results showed Ontiberos had only a 9 percent chance of reconviction in 16 years and concluded he was a lower risk to re-offend. The 2006 results contradicted the results from the Static-99 administered by the State’s witness, Dr. McCoy. She testified that Ontiberos fell into the high risk category for sexual recidivism in part because Ontiberos had a 52 percent chance of reconviction in 15 years. Ontiberos argues his trial counsel was ineffective because he failed to admit into evidence the 2006 Static-99 test results, so the jury was never made aware of it. And even if the lower score was not independently relevant, Ontiberos argues the contradictory results would have supported his trial strategy of discrediting the test’s general reliability. The State argues the omission of the more favorable 2006 Static-99 test results would have contradicted Ontiberos’ trial strategy.
At the Van Cleave hearing, Ontiberos’ trial counsel testified it would have hurt his trial strategy to admit the contradictory test scores because he could not claim one score
Dr. McCoy’s testimony that Ontiberos fell in the high risk category on the Static-99 was among the more damaging evidence presented at trial because she testified Ontiberos was only in the “moderate risk” category on the MnSOST. Not only would the contradictory 2006 Static-99 test scores support Dr. Barnett’s testimony that those tests are unreliable, but it would diminish the credibility of Dr. McCoy’s conclusion that Ontiberos was a high risk for recidivism. The failure to admit the 2006 test results falls below an objective standard of reasonableness regardless of whether it resulted from what trial counsel characterized as “strategy” or from trial counsel’s after-the-fact rationalization for failing to familiarize himself with the evidence.
We are similarly troubled that Ontiberos’ attorney did not alert his еxpert that Ontiberos was given a penile plethysmograph test as part of a sexual offender treatment program in 2005. Dr. Barnett testified that was a more reliable test, and we cannot be certain how it would have affected his diagnosis or testimony. But as the Court of Appeals held, this omission again calls Barker’s pre-trial preparation into serious question.
Stipulation to Expert’s Review of Evidence
Ontiberos next argues his trial counsel was ineffective for stipulating that Dr. McCoy could review all the discovery contained in Exhibit 1, including hearsay and documents created by other clinicians, when forming her expert opinion on whether Ontiberos was a sexually violent predator.
At the time of Ontiberos’ trial, the KSVPA was silent regarding what evidence experts could rely upon when forming their opinions. That would later change. See K.S.A. 2011 Supp. 59-29a06(c) (effective July 1, 2011, allowing expert witnesses in KSVPA proceedings to consider inadmissible evidence if certain conditions are satisfied). The general statute governing expert opinion testimony, K.S.A. 60-456(b), applied instead. It states:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” K.S.A. 60-456(b).
At that time, this court’s K.S.A. 60-456(b) caselaw clearly precluded experts testifying in KSVPA proceedings from giving an opinion based on facts or data not “ perceived by or personally known or made known’ ” to the expert at trial. State v. Gonzalez,
Emphasizing the clarity of Gonzales, this court criticized the same type of stipulation as entered into at Ontiberos’ trial in another KSVPA case, In re Care ér Treatment of Colt,
“Admission of unreliable statements by out-of-court declarants to prove the truth of tire matter asserted is exactly what the hearsay rule is designed to prevent; this agreement appears to have eliminated any useful purpose our enforcement of the rule might serve; waived any initial objection to the Rosenberg’s reliance on and reference to the records; and, to the extent admission of his opinion was error, invited it.” Colt,289 Kan. at 243 .
During the Van Cleave hearing for Ontiberos, his trial attorney admitted that he was not familiar with Gonzalez, and this failure to familiarize himself with the requirements for expert testimony undoubtedly led him to enter into such an all-encompassing stipulation.
Parties are obviously encouraged to enter into stipulations to avoid undue costs or time consuming litigation when there is no real dispute. Fuller v. Wright,
In light of the caselaw existing at the time, we are skeptical that the State could have admitted all of the information it claims it could have admitted. But we do not need to reach that issue because Barker’s admission that he was unfamiliar with Gonzalez and his decision to grant the State free rein over all evidence—however remote or incomplete—falls below the objective standard of reasonableness for an attorney under these circumstances.
In State v. Rice,
Failure to Object to Cross-examination
Ontiberos argues next that his attorney was ineffective for not objecting when the State improperly cross-examined him by using documents in Exhibit 1 without admitting the documents intо evidence for the jury’s review. We begin by determining whether tire State should have admitted tire documents into evidence. Onti-beros raises numerous instances of what he characterizes as improper cross-examination, but we will focus on those in which our review of the record demonstrates a problem. These generally occur when Ontiberos testified that he could not remember whether the State’s assertions were true or he disagreed with the factual premises underlying a State question. That testimony must be described in greater detail.
First, the State purported to use a police report from 1999 containing a victim’s statement that Ontiberos approached a woman named Paula and said, “I want some pussy.” Ontiberos was never charged, and he testified at trial that he did not remember making the statement. Then, the State asked, “But you do remember the police contacting you, asking you if you were involved in that, if you’d done that, correct?” And Ontiberos replied, “No, sir.” Finally, the State inquired whether Ontiberos remembered telling the police that he was staying with a friend and he did not know “Paula.” Ontiberos again testified he did not remember anything about the alleged incident. The State did not admit into evidence the police report or any other evidence establishing that these events actually transpired.
“If the police reports indicate ... he made no effort to conceal his genital area and walked up the stairs in a sort of—they call it a strutting manner, do you have any disagreement with that? Is that the way you remember it?”
Ontiberos again testified he remembered leaving, but he thought he had shorts on. The State then asked whether Ontiberos had said, “Charlie’s going to get you,” when the police asked him to get dressed. Ontiberos denied making that statement. The police report was not admitted into evidence or shown to Ontiberos so that he could review it and respond to its version of the alleged events.
Third, the State asked Ontiberos about a time he left a residential drug treatment facility without authorization. Ontiberos admitted he left the facility, but he denied that he was picked up 8 days later at his in-laws’ house. Ontiberos claimed he was only gone 1 day. The State attempted to impeach him by asking, “If the records indicate it was a matter of several days, your memory’s [sic] different than that at least?” And Ontiberos again indicated it had happened the same day. No document was admitted into evidence establishing whether the State was correct.
Fourth, Ontiberos complains the State impeached him with statements he made in 1983 to a corrections department counselor about the attempted rape conviction. Ontiberos testified he remembered being at the victim’s house, taking his clothes off, and walking down the hall, but then he blacked out because of drug use. The State asked whether he remembered telling a psychiatrist the victim picked up a knife. Ontiberos testified he did not remember. The State continued this line of questioning by asking Onti-beros six questions about statements the counselor reported that he allegedly made in 1983, and Ontiberos testified that he could not remember each time. The counselor’s report was never admitted into evidence, and the State now concedes the follow-up questions may have “overreached” because Ontiberos indicated he did not remember.
Fifth, Ontiberos argues the State improperly impeached his expert, Dr. Barnett, in the same fashion. For example, when the State was attempting to show Ontiberos had numerous disciplinary actions in prison and was not truthful about the number of the violations during his interview with Dr. Barnett, the State asked whether Dr. Barnett knew Ontiberos had been in a fight in 2003. Dr. Barnett testified that it would be unusual for someone imprisoned as long as Ontiberos to not have been in a fight, seemingly conceding that the fight occurred. But the State did not admit any evidence that Ontiberos had been in a fight in 2003, effectively impeaching Ontiberos and Dr. Barnett without establishing a basis for it.
Finally, the State asked Dr. Barnett whether Ontiberos reported “that he was Usted in a disciplinary report as having taken duct tape and wrapped it around a pen in order to fashion a crude knife of some kind . . . did he tell you about that?” Dr. Barnett testified Ontiberos had not disclosed that incident, again seemingly conceding that the incident had occurred and that Ontiberos had been dishonest. But as the Court of Appeals opinion thoroughly discusses, Ontiberos was never disciplined for having a knife. And, at trial, the State claimed this incident occurred in 2003, but the discipline report tire State later claimed established the basis for its question was a 1991 report, which actually concluded that Onti-beros had “less dangerous” contraband. There is no mention of a knife. The Court of Appeals rightly found this error to be one of the most egregious concluding “this leading question was not based on fact.” Ontiberos,
In State v. Gauger,
“Where the impeaching statement is written, and the witness, although admitting that he gave a statement, cannot remember the contents thereof, or will neither admit nor deny the same, there is ample foundation for admitting the statement itself or at least the impeaching portion thereof into evidence. . . .
“. . . Counsel may comment on the credibility of a witness where his remarks are based on facts appearing in the evidence; but it is highly improper for the court to permit counsel to read or even refer to the contents of written matter not in evidence for the purpose of impeachment.” (Emphasis added.)200 Kan. at 520 .
In State v. Ward,
“[W]e are troubled by tire State’s failure to complete the impeachment. Once Sheila denied the specific instances of physical abuse, tire State should have offered extrinsic evidence to illustrate that Sheila’s denial of the specific instances of abuse was suspect.”31 Kan. App. 2d at 292 (citing Barbara, Kansas Rules of Evidence with Evidence Objections and Evidentiary Foundations § 3.1 [4th ed. 1997]).
The most recent edition of Barbara, Kansas Law and Practice continues to support the rule that counsel admit extrinsic evidence, either by producing the document or live witness testimony, if the witness denies the impeaching fact. It explains that the purpose of this rule “is to insure against unfair cross-examination where the examiner may misquote or take the statement out of context.” Barbara, Kansas Law and Practice, § 3:1 (5th ed. 2001). These procedures were not followed, preventing the jury from determining whether Ontiberos and Dr. Barnett’s testimony was suspect. And our review of the record establishes at least one instance when the State was misstating the alleged facts—not Ontiberos. We hold that counsel’s performance fell below an objective standard of reasonableness.
We find it disturbing that the State’s method of cross-examination pervaded the trial without intervention by Ontiberos’ advocate. No evidence was admitted for the jury’s review to determine the accuracy of the facts alleged to underlie the State’s questions, and this was particularly egregious since some of the State’s questions were not supported by the record. This again suggests Ontiberos’ trial counsel lacked sufficient familiarity with the evidence in his case and the rules governing admissibility of evidence. And while the substance of the parties’ stipulation is not entirely clear, we can tell without further detail that it was ineffective assistance of counsel for Ontiberos’ attorney to enter into a stipulation that avoided tlie need to admit evidence that would allow the jury to make these essential determinations.
Failure to Object to State’s Question about a Knife
As discussed above, the State asked Dr. Barnett whether Onti-beros had disclosed that he was disciplined in 2003 for having a knife. Dr. Barnett admitted that Ontiberos had not disclosed it, simultaneously impeaching Dr. Barnett’s evaluation of Ontiberos and suggesting Ontiberos was dishonest. Ontiberos’ attorney did not object to the question, and the State did not admit the alleged discipline record into evidence.
This is the most poignant example of why attorneys must produce extrinsic evidence to avoid misquoting or mischaracterizing a document. Ontiberos’ attorney remained silent while the State questioned Dr. Barnett without producing the discipline report for his verification that the described incident occurred. Presumably Ontiberos’ attorney was unaware that the evidence had been mis-characterized; and based on the stipulation Ontiberos’
Were These Errors PrejudicialP
Having found that error occurred, we must determine whether there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Bledsoe,
To summarize, we have concluded above that counsel’s performance fell below an objective standard of reasonableness because he: (1) failed to introduce evidence that a 2006 Static-99 concluded that Ontiberos was a lower risk to reoffend; (2) entered a stipulation allowing Dr. McCoy to review evidence that was arguably inadmissible without first familiarizing himself with K.S.A. 60-456’s evidentiary requirements and this court’s Gonzalez decision; (3) failed to object when the State impeached Ontiberos and his expert witness without introducing extrinsic evidence to complete the impeachment; and (4) failed to object to the State’s mischaracteri-zation of a corrections department discipline report.
Two themes pervade these errors. The first is counsel’s failure to familiarize himself with the evidence. This is evident by not introducing the more favorable Static-99 test results, failing to inform his expert witness that Ontiberos had taken a penile plethys-mogrаph, and not objecting when the State mischaracterized the discipline report as involving a knife. The second theme is a failure to recognize the evidentiary rules governing expert testimony and cross-examination.
While each individual error may not have required reversal, the accumulation of these errors undermines our confidence in the trial’s outcome. These circumstances precluded the jury from hearing the only evidence corroborating Ontiberos’ expert’s testimony. Here the jury was only informed about one Static-99 test result— the one placing him at high risk to re-offend. And Dr. Barnett’s testimony criticizing the reliability of the tests Dr. McCoy used would have been more credible if the jury was provided an example of the inconsistency. Moreover, counsel’s failure to object allowed the State to impeach both Ontiberos and his expert without establishing a basis for the impeachment. Given the pervasive nature of counsel’s errors, we conclude there is a reasonable probability that the outcome would have been different.
Opposing Counsel’s Misconduct
Finally, Ontiberos argues he is entitled to a new trial because the State’s attorney committed misconduct. And although we would ordinarily not address Ontiberos’ other claimed errors because we are reversing his civil commitment on other grounds, we briefly consider his claim that the state’s attorney committed misconduct by attempting to impeach Ontiberos and Dr. Barnett without admitting evidence to complete the impeachment. We do so because it may arise again on remand. See State v. Hernandez,
Just as it was ineffective assistance of counsel for Ontiberos’ attorney to allow the State to cross-examine Ontiberos and Dr. Barnett without admitting into evidence the documents the State relied on for impeachment, the State committed error by-cross-examining the witnesses in this fashion. By failing to identify and admit into evidence the documents the State relied upon, the State prevented the jury from deciding the facts and properly assessing credibility. It also allowed the State to mischaracterize the KDOC discipline report and insinuate Ontiberos was disciplined while imprisoned for having an unauthorized weapon without support in the record. This is misconduct under any standard. If the State initiates another civil commitment proceeding against Onti-beros, the State must admit extrinsic evidence to complete the impeachment if a trial witness denies making a prior inconsistent statement or the witness claims that he or
The judgment of the Court of Appeals reversing and remanding this case to the district court is affirmed. The judgment of the district court is reversed and remanded.