Bledsoe v. State

  Kansas Opinions   | Finding Aids: Case Name � Supreme Court or Court of Appeals | Docket Number | Release Date |

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 95,396

FLOYD S. BLEDSOE,

Appellant,

v.

STATE OF KANSAS,

Appellee.

SYLLABUS BY THE COURT

1. When reviewing a district court's ruling after an evidentiary hearing on a motion under K.S.A. 60-1507, an appellate court is charged with determining whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support the district court's conclusions of law. Substantial evidence is evidence that possesses both relevance and substance and that furnishes a substantial basis of fact from which the issues can reasonably be resolved. An appellate court must accept as true the evidence and all inferences drawn from the evidence that tend to support the findings of the district judge.

2. Prosecutorial misconduct may be properly raised on direct appeal, despite lack of contemporaneous objection at trial. It is not properly raised in a collateral proceeding under K.S.A. 60-1507 unless it affected constitutional rights and there is a showing of exceptional circumstances excusing the failure to appeal on that issue.

3. The United States Constitution's Sixth Amendment right to counsel is the right to effective assistance of counsel.

4. To support a claim of ineffective assistance of counsel, it is incumbent upon a defendant to prove that (1) counsel's performance was deficient, and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

5. 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 of 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 the 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.

6. In an appeal based on ineffective assistance of counsel, once a defendant has established deficient performance, he or she 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 the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.

7. An appellate court reviews de novo the district court's analysis of the two prongs of the ineffective assistance of counsel inquiry, which involves mixed questions of law and fact.

8. Under the facts of this case, counsel's performance was objectively unreasonable and constitutionally deficient where counsel professed to have been engaged in "strategy" in introducing an exculpatory but nevertheless unreliable and incompetent hearsay statement of a 2-year-old, which opened the door to the child's damaging hearsay statement. However, these inconsistent hearsay statements and counsel's other errors did not result in prejudice, and we cannot say that there is a reasonable probability that the outcome would have been different.

Appeal from Jefferson district court; GARY L. NAFZIGER, judge. Opinion filed February 2, 2007. Affirmed.

Richard Ney, of Ney, Adams, & Sylvester, of Wichita, argued the cause and was on the brief for appellant.

Jared S. Maag, assistant attorney general, argued the cause, and Kristafer R. Ailslieger, assistant attorney general, and Phill Kline, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Floyd Bledsoe was convicted of first-degree murder, aggravated kidnapping, and aggravated indecent liberties with a child; this court affirmed his convictions. See State v. Bledsoe, 272 Kan. 1350, 39 P.3d 38 (2002). This is an appeal from the district court's denial of his K.S.A. 60-1507 motion after a full evidentiary hearing on his claims of prosecutorial misconduct and ineffective assistance of counsel.

 

At the time of her disappearance, the victim, Floyd Bledsoe's 14-year-old sister-in-law, C.A., was living with Floyd and his wife, Heidi, and their two sons, Cody and Christian, near Oskaloosa, Kansas.

At about 4:20 p.m. on Friday, November 5, 1999, the school bus dropped C.A. off at the Bledsoes' trailer home. A friend of C.A.'s stopped by about 5 p.m., but C.A. was not home.

A hunter testified that at about 5:30 p.m. he heard a woman scream and the words "please don't hurt me, somebody help, please don't hurt me" coming from near the dairy where Floyd worked. The hunter testified he did not hear any gunshots.

Tom Bledsoe, Floyd's brother, turned himself in to police on Sunday, November 7, and, through his attorney, led investigators to C.A.'s body on Monday, November 8. C.A. had been buried in a trash dump on the property of the Bledsoes' parents, also near Oskaloosa, where Tom lived. The body was under a pile of dirt, with several sheets of plywood and some clothing on top. C.A.'s shirt and bra were pulled up above her breasts. She had been shot once in the back of the head and three times in the chest.

Two days after his arrest, Tom made a statement to police, implicating Floyd. Tom said that while he was on his way to work on Saturday, November 6, he saw Floyd's car and stopped to talk. Tom testified that Floyd laid his head on the steering wheel and looked a little nervous. When Tom asked him what was wrong, Floyd said C.A. was dead. Tom said Floyd was mumbling, but he heard him say "accidentally shot her." Tom asked, "What?" Floyd said, "She's dead, accidentally shot her." Tom testified that he asked Floyd why she was dead. Floyd shook his head and shrugged his shoulders. Tom also said that he asked Floyd whether he had raped C.A. or sexually abused her. Floyd responded, "Yes, no, I don't know." Floyd told Tom that he recalled her shirt and bra were above her breasts and that he used Tom's pistol to shoot C.A. Tom said he reached behind the truck seat and felt his pistol in the case. He said Floyd knew he kept a gun in his truck. Tom testified that Floyd told him he shot C.A. once in the back of the head and twice in the chest. When Tom asked where C.A. was, Floyd told him she was in the trash dump behind their parents' house underneath plywood, trash, and dirt.

Tom also said that Floyd had told him not to tell anyone, that Tom should take the blame, and that if he did not, Floyd would tell people about Tom's past. At trial, Tom acknowledged that Floyd had threatened him in this way in the past to get what he wanted. Tom thought Floyd would reveal to members of his church that he had tried to have sex with a dog, had been caught with dirty magazines, and had played with himself while watching dirty movies.

Tom testified at trial that when he got off work on Saturday night, he went home to "make sure if what [Floyd] told [him] was true." He had driven out to the trash dump and looked around; he had not seen C.A.'s body but had noticed that items in the dump and dirt had been displaced. Tom then went home and put his gun in his dresser drawer. He turned himself in the next day after leaving messages on the answering machine of the minister at his church. In the messages, Tom said he was sorry and would "pay for the rest of [his] life for what [he had] done." He did not say that he had killed C.A. However, Tom told officers he had shot C.A.

Tom testified at Floyd's trial that he turned himself in for something he did not do because he did not want people to know about his past. He said he also thought about wanting Floyd's children to grow up with a father in the home. A day or two after his arrest, Tom was "ashamed" about lying and talked with police again, implicating Floyd. He testified that he could not live with himself because Floyd had told him where C.A.'s body was.

Officers interviewed the brothers together and eventually arrested Floyd and released Tom. Detective Randy Carreno testified at trial that when the brothers were in the room together, Tom stated that "[Tom] wanted [the officer] to know the truth, he wanted everybody to know the truth, and that he wasn't going to hide the truth anymore, and . . . the information that he gave [the officer] was that it was Floyd Bledsoe that killed [C.A.]." 272 Kan. at 1364.

Sheriff Roy Dunnaway testified that, during the search effort, after C.A. disappeared and before her body was discovered, Floyd asked him: "She's dead isn't she? Do you know if she's dead?" When asked if these statements were consistent with the usual reaction in the disappearance of a 14-year-old, possibly a runaway case, Dunnaway said, "I think most people put them thoughts out of their mind and still have hope that she was going to be found, which I had hopes that she would be found, be, be alright. [Floyd's reaction] to me is unusual, yes."

Detective Troy Frost testified regarding Floyd's interrogation. He said that Floyd "got real emotional" and said that he had stopped at the trailer the afternoon C.A. disappeared. Later, and on a number of other occasions, Floyd denied having stopped by the trailer that day. Floyd also told Frost that he loved C.A. When the prosecutor asked, Frost said he believed Floyd had gone to the trailer and that Floyd was genuine about his feelings for C.A.

Detective Kirk Vernon testified that C.A.'s mother, Tommie Arfmann, told Vernon she had gone to look for Floyd at the dairy where he worked at about midnight on Friday, the night C.A. disappeared, and that Floyd was not there. On cross-examination, the prosecutor suggested that Arfmann told other law enforcement officers that it was much earlier than midnight when she was at the dairy.

The murder weapon, a 9 mm semiautomatic pistol found in Tom's bedroom, belonged to Tom. He had purchased the gun about 2 weeks before the murder. Shells matching those fired from Tom's gun were found in his bedroom. No fingerprints were found on the gun.

Dr. Erik Mitchell testified concerning the forensic evidence admitted at trial: (1) The shot fired to the back of C.A.'s head was a contact shot and was not fired at the location where she was found; (2) she had been placed in the burial site and then shot in the chest; and (3) based on the position of the shots fired in her chest in relation to her clothing, her shirt was raised up before the shots were fired. Mitchell opined that, based on the position and folds of C.A.'s shirt and bra, it appeared that her clothes had been intentionally lifted rather than moved up by post-mortem dragging or sliding of her body. 272 Kan. at 1362.

A safety plan instituted by the district court required Floyd to wear a bulletproof vest under his clothes throughout the trial.

The defense theory of the case was that Tom committed the murder, and testimony centered on the alibis of Floyd and Tom during the time between C.A.'s disappearance and the discovery of her body. Testimony also focused on the relationship each of the brothers had with C.A., and their various statements to police.

Testimony revealed that Floyd loved C.A., that he had considered pursuing a sexual liaison with her, and that he wanted to know what her plans were going to be when Floyd and his wife divorced, which they were in the process of doing. Testimony from Rosa Bolinger and Brandi Wampler suggested that C.A. was afraid to be alone at night at the trailer with Floyd.

Testimony at trial also included recitations of statements made by Floyd's 2-year-old son, Cody, which implicated Tom and Floyd alternatively. Cody did not testify at trial. His statements developed in the following manner:

Floyd 's wife, Heidi, dropped her sons off at a babysitter's house on Friday afternoon, November 5. The babysitter watched the boys until 12:45 a.m., when Floyd picked them up. Floyd brought them back to the babysitter around 2:45 a.m., and he returned at 8:30 a.m. on Saturday morning. On Monday night, after C.A.'s body was discovered, Cody told Heidi that Tom had killed C.A. Bolinger, who attended the same church as C.A., testified on cross-examination by defense counsel that she heard Cody telling a story about Tom shooting C.A. Bolinger told police that on Monday, November 8, Cody said: "Tom shot [C.A.], boom, boom, boom, boom, and dumped her in the water. Tom put his, Cody's, blanket around [C.A.] and also put [C.A.'s] blanket around her. . . . Tom closed [C.A.'s] eyes and he kissed her cheeks." Bolinger said that sometime after that, but before the body was discovered, Cody first told her Tom put [C.A.] in a dump truck, but later Cody said that it was not a dump truck but a dump. On redirect, Bolinger indicated that, based on her perceptions, she did not think that someone told Cody these things, she believed he had actually seen them. Heidi also testified about Cody's statements. Called by the State, she testified that she and Bolinger witnessed Cody describe Tom shooting C.A., wrapping her in a blanket, and putting her in the dump. A few days after Floyd's arrest, however, according to Heidi, Cody's statements changed; Cody started saying "Daddy" killed C.A.

Floyd was convicted of first-degree murder, aggravated kidnapping, and aggravated indecent liberties with a child. He filed a direct appeal of his convictions, challenging the sufficiency of the evidence, the admission of Cody's hearsay statements as a violation of the Confrontation Clause, and the admission of certain testimony of Carreno as vouching for Tom's credibility. This court affirmed the convictions, concluding that, although the evidence was entirely circumstantial, it was sufficient to support the convictions. We further held that, because the defense first introduced them into evidence, Cody's hearsay statements did not violate the Confrontation Clause. We also held that the officer was not "vouching for Tom's credibility." 272 Kan. at 1364.

In January 2003, Floyd filed the petition underlying this appeal, alleging ineffective assistance of trial counsel. Depositions were taken of John Kurth, Floyd's appointed trial counsel, and Jimmie Vanderbilt, the county prosecutor on the case.

On October 22, 2004, the district court held a full evidentiary hearing, at which six witnesses testified: Dr. Marilyn Hutchinson, a child psychologist; Jean K. Gilles Phillips, a University of Kansas Law School criminal law professor and Director of the Defender Project clinic; Tammy Dressler Arfmann, the victim's sister-in-law; Kurth; Vanderbilt; and Floyd.

On March 9, 2005, Floyd moved to amend his petition in order to include the claim of prosecutorial misconduct. The district court granted his motion.

On September 28, 2005, the district court denied Floyd's K.S.A. 60-1507 motion in a memorandum opinion, finding that his counsel was effective and sufficient; that counsel's representation was reasonable considering the circumstances; and that counsel's representation did not prejudice Floyd's right to a defense and a fair trial. The court also concluded that the issue of prosecutorial misconduct was waived because it was not raised at trial or on Floyd's direct appeal, and that there were no exceptional circumstances excusing Floyd's failure to raise the issue earlier.

Standard of Review

Our standard of review on an appeal of a K.S.A. 60-1507 motion after an evidentiary hearing in the district court is well-established and often cited. We are charged with determining whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support the district court's conclusions of law. Graham v. State, 263 Kan. 742, 753, 952 P.2d 1266 (1998). Substantial evidence is evidence that possesses both relevance and substance and that furnishes a substantial basis of fact from which the issues can reasonably be resolved. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). We must accept as true the evidence and all inferences drawn from the evidence that tend to support the findings of the district judge. Graham, 263 Kan. at 753-54.

Prosecutorial Misconduct

In his amended 60-1507 petition, Floyd alleges that the prosecutor committed misconduct by submitting incompetent evidence in the form of Cody's statements, and that this misconduct prejudiced Floyd's constitutional right to a fair trial.

Prosecutorial misconduct may be properly raised on direct appeal, despite lack of contemporaneous objection at trial. See State v. Dixon, 279 Kan. 563, 581, 112 P.3d 883 (2005); State v. Mann, 274 Kan. 670, 688, 56 P.3d 212 (2002). It is not properly raised in a collateral proceeding under K.S.A. 60-1507 unless it affected a constitutional right and there is a showing of exceptional circumstances excusing the failure to appeal on that issue. Supreme Court Rule 183(c) (2006 Kan. Ct. R. Annot. 227); Johnson v. State, 271 Kan. 534, 535, 24 P.3d 92 (2001). As a practical matter, a 60-1507 movant can overcome a procedural default, i.e., a failure to raise an issue at trial or on direct appeal, and demonstrate exceptional circumstances by persuading us that there was (1) ineffective assistance of trial counsel in failing to object regarding an issue; (2) ineffective assistance of direct appeal counsel in failing to raise the issue; or (3) newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and the movant at the time of trial and direct appeal.

Floyd relies on the third method. Although he alleges that Kurth was ineffective, he does not base his ineffectiveness argument on Kurth's failure to allege prosecutorial misconduct at trial. He does not challenge the performance of his counsel on direct appeal. Instead, he argues that exceptional circumstances exist because the prosecutor's misconduct was unknown until the 60-1507 hearing. Specifically, Floyd points to statements by the prosecutor, Jimmie Vanderbilt, that the prosecutor believed Cody to be incompetent to testify and the "Daddy did it" statement to be unreliable. Vanderbilt had been present when a police officer attempted to interview Cody. He testified about his resulting impression: "[B]ased on what I observed I didn't believe that I could successfully sit the boy down on a stand and ask him questions and get him to respond appropriately." Given this impression, Floyd argues, Vanderbilt's presentation of Cody's hearsay statements through the testimony of Bolinger and Heidi was reversible prosecutorial misconduct.

The district court concluded that there were no exceptional circumstances requiring review of this issue. See State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990). We agree. The deposition of Floyd's trial counsel, Kurth, also was admitted into evidence at the 60-1507 hearing. In it, Kurth testified that he also had concerns at the time of trial about the reliability of Cody's statements. He nevertheless sought to introduce the "Tom did it" statement. In this situation, the fact that Floyd learned for the first time at the 60-1507 hearing that the prosecutor shared the concerns of his own counsel and nevertheless introduced Cody's statements does not qualify as an exceptional circumstance excusing failure to raise the prosecutorial misconduct issue earlier. It is plain that Kurth did not raise the issue of Vanderbilt's conduct earlier not because it was unknown to him but because he was engaging in the same conduct.

 

The Sixth Amendment right to counsel is the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting standards of Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]).

To support a claim of ineffective assistance of counsel, it is incumbent upon a defendant to prove that (1) counsel's performance was deficient, and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004); see also State v. Davis, 277 Kan. 309, 314, 85 P.3d 1164 (2003); State v. Orr, 262 Kan. 312, 317, 940 P.2d 42 (1997); State v. Rice, 261 Kan. 567, 598-603, 932 P.2d 981 (1997) (quoting Strickland, 466 U.S. at 687). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Chamberlain, 236 Kan. at 656; Gleason, 277 Kan. at 643.

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 the 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. Gleason, 277 Kan. at 644.

Once a defendant has established counsel's deficient performance, the 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 the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. 277 Kan. at 644.

We review de novo the district court's analysis of the two prongs of the ineffective assistance of counsel inquiry, because it involves mixed questions of law and fact. Gleason, 277 Kan. at 644-45; Davis, 277 Kan. 309, Syl. � 4.

Floyd points to what he regards as 23 specific failings by Kurth. These fall into six general categories: failings related to Cody's statements; failing to object to other evidence, to the prosecutor's closing argument, and to the requirement that Floyd wear a bulletproof vest during trial; failing to call witnesses and admit other evidence; pretrial procedural failings; failing to conduct a meaningful voir dire; and cumulative error. We address each in turn. We ultimately conclude that Kurth's performance was constitutionally deficient. His professed "strategy" in introducing an exculpatory but nevertheless unreliable and incompetent hearsay statement of a 2-year old, which opened the door to the child's damaging hearsay statement, was objectively unreasonable. However, because we cannot say that the outcome would have been different had Cody's statements been excluded and Kurth's other errors not occurred, and because our confidence in the jury's verdict is not undermined, we conclude that there was no prejudice.

Failings Related to Cody's Statements

Floyd urges us to recognize five errors of his counsel with regard to Cody's statements: (1) failure to obtain Floyd's consent to introduce Cody's statements; (2) failure to request examination of Cody to determine his competence as witness; (3) failure to present expert testimony concerning child suggestibility and the reliability of Cody's statements; (4) failure to object to the statements as hearsay; and (5) failure to object to the prosecutor's questioning concerning the statements as evidence that Cody was an eyewitness.

Kurth testified at the 60-1507 hearing that he was aware of Cody's "Daddy did it" statement, weighed the risk, and thought it would be to Floyd's benefit to have the "Tom did it" statement come in, even if that meant the "Daddy did it" statement also would come in. It is for this reason that he did not object to the prosecution's use of the "Daddy did it" statement. Kurth had previously determined he was "going to try to get [the "Tom did it" statements] in through [Heidi's testimony]," thought they would be admissible, and thought any attendant risk would be "worth it."

Floyd first argues that Kurth was ineffective for failing to secure his consent to the admission of Cody's statements, and that this failure violated his right to confront the witnesses against him. The admissibility of Cody's statements in relation to the Confrontation Clause was addressed by this court in Floyd's direct appeal; we determined there was no violation where the defense put these statements into evidence. That question need not be addressed again. We need only address the constitutional necessity or lack of necessity for Floyd's consent.

Kurth testified at the 60-1507 hearing that he talked to Floyd about Cody's inconsistent statements, and that he informed Floyd of his strategic decision that it was more worthwhile to get the "Tom did it" statement in than to keep the "Daddy did it" statement out. Floyd, on the other hand, testified that he did not know his son had incriminated him until the prosecutor's opening statement. He also testified that Kurth never sat down with him to explain the ramifications of admitting Cody's statement, and that, if Kurth had told him about the "Daddy did it" statement, he would not have agreed to admission of the "Tom did it" statements.

Regardless, certain decisions relating to the conduct of a criminal case are ultimately for the accused: (1) what plea to enter; (2) whether to waive a jury trial; and (3) whether to testify. Others are ultimately for defense counsel. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. See State v. Ames, 222 Kan. 88, 100, 563 P.2d 1034 (1977). Kurth was not required to obtain Floyd's consent before introducing Cody's statement that "Tom did it."

Floyd's next two arguments are intertwined. He asserts that Kurth was required to hire an expert child psychologist and challenge Cody's competence under K.S.A. 60-417 because, had the district court found Cody was "incapable of expressing himself" or incapable of understanding his duty to tell the truth, "his highly prejudicial 'Daddy did it' statements would not have been able to come into evidence."

Kurth did not hire a psychologist, request to interview Cody, or otherwise attempt to determine his competence to testify, because Kurth had no intention of calling Cody as a witness. On the contrary, Kurth testified that it was his intention to have Bolinger or Heidi relate Cody's statement about Tom, and that he did not even consider consulting a child psychologist. It is obvious that, had Kurth challenged Cody's competence in regard to the "Daddy did it" statement, he would have undermined his ability to get the "Tom did it" statement into evidence. As discussed previously, the decision to admit the statement against Tom was part of Kurth's "strategy." Putting aside for the moment the reasonableness of that "strategy" overall, once that "strategy" had been selected, Kurth did not act unreasonably in failing to seek or introduce testimony that might undermine the impact of the "Tom did it" statements.

Finally, with regard to Cody's statements, Floyd cites as error Kurth's failure to object to questioning that elicited Bolinger's and Heidi's testimony that Cody was a probable eyewitness to the crime. Kurth testified that he had no reason for not objecting, and that he didn't foresee the prosecutor capitalizing on this suggestion that Cody was present when C.A. was killed by introducing evidence that Cody could only have been with his dad. Again, putting aside for the moment the reasonableness of Kurth's "strategy" regarding Cody's statements, his failure to object to this questioning does not constitute error. Having made the decision to admit Cody's statements that Tom did it, Kurth had no reason to object to the prosecutor's further inquiry implying Cody was an eyewitness to Tom's crime.

We now return to the question of whether Kurth's "strategy" concerning Cody's statements was objectively reasonable. See Ferguson v. State, 276 Kan. 428, 446, 78 P.3d 40 (2003). It is true, as the State reminds us, that "'[w]here experienced attorneys might disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective counsel." Crease v. State, 252 Kan. 326, 338, 845 P.2d 27 (1992) (quoting State v. Kandig, 233 Kan. 890, 896, 666 P.2d 684 [1983]). However, even if each of Kurth's actions was logical and consistent with his chosen strategy, the strategy itself must still pass muster.

Phillips testified at the 60-1507 hearing that the failure of defense counsel to object to the "Daddy did it" statement, even if that meant being unable to present the "Tom did it" statement, fell below the due care required of a reasonably competent defense attorney, and, in her opinion, was "a huge mistake." Floyd urges us to agree with Phillips that Kurth's performance falls short when measured against the yardstick of objective reasonableness. See Gleason, 277 Kan. at 644; see also Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000).

According to Kurth, Cody's initial statement that "Tom did it" was an integral element of proof that Tom, rather than Floyd, committed the crime. Kurth testified at the 60-1507 hearing that the decision not to object to Cody's later statement that "Daddy did it" was a risk he weighed, and that he concluded the risk was worth taking.

Considering, as we must, all of the circumstances at the time and granting Kurth all the deference he is due, we nevertheless conclude that his strategy regarding Cody's statements was objectively unreasonable. Cody was only 2 years old when he implicated first his uncle, then his father. In addition, even without Cody's statements, there was considerable evidence pointing to Tom as the perpetrator: His gun was the murder weapon; he had purchased the bullets; he initially confessed to having killed