IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 97,139
TOD A. PABST,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1. The legislature has authorized a prosecuting witness to employ an attorney to act as an associate counsel to the county attorney, or other public prosecutor, and to assist in the performance of the prosecutorial duties in any criminal proceeding in this State. The associate counsel's concurrent representation of the victim in a separate civil action does not create a per se violation of the defendant's due process rights, but rather the prejudicial effect of the conflict of interest must be determined based upon the facts and circumstances of each case.
2. Under K.S.A. 19-705, a county attorney is prohibited from being concerned as attorney or counsel for either party other than the state or county, in any civil action depending upon the same state of facts upon which any criminal prosecution, commenced but undetermined, shall depend. An associate counsel employed pursuant to K.S.A. 19-717 is subject to the same prohibition. However, an associate counsel's violation of K.S.A. 19-705 is not structural error, but rather is subject to the statutory harmless error rule.
3. To obtain a reversal of a conviction based upon ineffective assistance of trial counsel, it is insufficient to surmise, with the benefit of hindsight, that another attorney would have tried the case differently. Rather, the defendant must first establish that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Then, the defendant must establish that counsel's deficient performance prejudiced the defense by showing that counsel's errors were so serious as to deprive the defendant of a fair trial.
4. Where the defendant has been granted an evidentiary hearing on the issue of ineffective assistance of counsel, but chooses not to call the allegedly ineffective attorney as a witness to provide an opportunity for the challenged attorney to explain his or her actions, a reviewing court should afford considerable deference to the challenged counsel, presuming when there is no contrary evidence that the attorney's conduct fell within the wide range of reasonable professional assistance.
5. Defense counsel is not constitutionally ineffective for failing to attempt to impeach the State's expert witness through the use of extrinsic evidence on collateral matters which have no relevance to the expert's qualifications and knowledge, or upon the bases for the expert's opinions.
6. The provision of K.S.A. 60-215(a) providing a party the right to amend a pleading once as a matter of course at any time before a responsive pleading is served does not apply to a motion for relief under K.S.A. 60-1507.
7. An amendment to a motion for relief under K.S.A. 60-1507 that asserts a new ground for relief which is supported by facts that differ in both time and type from those grounds set forth in the original motion does not relate back to the date of the original motion, so as to circumvent the 1-year limitation of K.S.A. 60-1507(f)(1).
Appeal from Thomas district court; GLENN D. SCHIFFNER, judge. Opinion filed September 19, 2008. Affirmed.
Richard Ney, of Ney, Adams & Sylvester, of Wichita, argued the cause and was on the briefs for the appellant.
Jared S. Maag, deputy solicitor general, argued the cause and was on the brief for the appellee.
The opinion of the court was delivered by
JOHNSON, J.: Tod A. Pabst appeals the denial of his K.S.A. 60-1507 motion for postconviction relief from his conviction for premeditated first-degree murder. Pabst raises a number of issues, none of which require us to reverse his conviction.
FACTUAL AND PROCEDURAL OVERVIEW
In 1997, Pabst was first convicted of premeditated first-degree murder in the shooting death of his fiancée, Phoebe Harkins. However, that conviction was overturned by this court because the prosecutor's remarks in closing argument denied Pabst a fair trial. See State v. Pabst, 268 Kan. 501, 511, 996 P.2d 321 (2000).
Upon the retrial in 2000, the victim's parents hired a private attorney, Pedro Irigonegaray, to act as associate counsel to assist the prosecutor, pursuant to K.S.A. 19-717. Irigonegaray actively participated in the murder trial. At the time, he was also employed to assist with civil litigation which would be impacted by the outcome of the criminal trial. The jury again convicted Pabst of premeditated first-degree murder, and that conviction was affirmed by this court in State v. Pabst, 273 Kan. 658, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002).
Approximately a year and a half later, on October 15, 2003, Pabst filed a K.S.A. 60-1507 motion through a retained attorney which alleged 11 grounds for relief. However, for his last ground, Pabst's attorney stated that, because of the applicable statute of limitation, he had filed the motion prior to a full investigation and review and informed the court that Pabst intended to file supplemental pleadings, with leave of court, after an examination of the record. Inexplicably, there was no activity on the motion until September 2, 2004, when Pabst's attorney withdrew as counsel.
Pabst requested appointed counsel on November 19, 2004, but apparently never returned the requisite paperwork. He then hired current counsel, Richard Ney, who entered an appearance on March 1, 2005, and several months later filed a pleading entitled, "Amended Petition Pursuant to K.S.A. 60-1507." The pleading set forth 16 grounds for relief, 10 of which differed from the original motion. Pabst had not sought or obtained leave of court to file a supplemental pleading.
The State, after obtaining a continuance, filed an answer which, inter alia, sought to dismiss those claims which were not raised in the original 60-1507 motion because the new claims were barred by the new limitation period in K.S.A. 60-1507(f). In a reply and a separate motion to strike, Pabst argued that, under K.S.A. 60-215, he had the right to amend his motion as a matter of course at any time prior to the State filing a responsive pleading; that the claims made in both pleadings were of the same type, permitting the later claim to relate back; and that the State had failed to specifically plead a statute of limitations defense as required by the Rules of Civil Procedure.
At an evidentiary hearing on March 15, 2006, the parties first presented arguments on the statute of limitations issue. The district court ruled that Kansas law does not require the State to answer or otherwise plead to a convict's 60-1507 motion in order to refute the motion or the evidence offered in support of the motion; that it is presumed that when a movant sets out grounds for relief under K.S.A. 60-1507, he or she has listed all of the grounds upon which he or she is relying; and that a movant cannot avail himself or herself of the relation-back standard by raising an ineffective assistance of counsel claim in the original petition and then amending the petition to assert another ineffective assistance claim based on a distinct type of attorney malfeasance. The district court dismissed the allegations found in (d), (e), (f), (g), (h), (i), (j), (l), (m), and (p) of the amended "petition." The district court proceeded on the originally filed 60-1507 motion, permitting Pabst to raise the grounds that had been abandoned by the amended "petition."
Pabst and Irigonegaray testified as Pabst's witnesses. Irigonegaray related that he was retained by the victim's sister and parents to be an associate to the attorney general's office under K.S.A. 19-717 to assist with the prosecution of the murder trial. Irigonegaray admitted that he represented the victim's sister and her husband in a termination of parental rights and adoption case involving Pabst's child. At the time of the criminal retrial, Pabst had filed a motion to set aside the termination, and Irigonegaray was involved in the case. Irigonegaray's office was also involved in other civil cases involving the victim's family which were at least prompted by the murder, albeit the record is not altogether clear on the details of those cases or the extent of Irigonegaray's involvement.
Although Irigonegaray admitted involvement in the civil cases, he denied that he ever used information from the civil cases to gain an advantage in the criminal trial. However, he did admit that the murder conviction had some impact on the attempt to set aside his client's adoption of Pabst's child. Further, Irigonegaray did use the fact that Pabst had filed two civil cases involving property to argue for a hard 40 sentence based on murder for financial gain, although the sentencing court rejected the argument and refused to impose the enhanced minimum sentence.
Assistant Attorney General Stephen Maxwell testified on the State's behalf, acknowledging that he was the lead attorney on the case and had assigned the handling of several parts of the trial to Irigonegaray. Specifically, he assigned Irigonegaray the opening statement, 7 out of 25 State witnesses, 1 or 2 of the defense witnesses, and a portion of the closing argument. However, Maxwell asserted that he controlled the case and everything that Irigonegaray did on the case was subject to Maxwell's prior approval.
On July 18, 2006, the district court issued its memorandum decision denying Pabst's 60-1507 motion. Pabst timely appealed.
STANDARDS OF REVIEW
When an evidentiary hearing has been conducted in the district court, the standard of review for an appeal from a K.S.A. 60-1507 motion denial involves determinations of whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007). "The ultimate denial of the 60-1507 motion involves a legal question requiring independent appellate review." Drach v. Bruce, 281 Kan. 1058, 1063, 136 P.3d 390 (2006), cert. denied 167 L. Ed. 2d 317 (2007).
To the extent that our decision turns on Pabst's due process claim or on our interpretation of statutes, we have an unlimited review. See State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006).
CONFLICT OF INTEREST
In his original motion, Pabst asserted that his "rights were denied" when a special prosecutor hired by the victim's family usurped the role of the State, "thereby placing the Petitioner in the position of being prosecuted by victims of the crime." In the "Amended Petition," filed by Ney, Pabst argued that his trial was rendered fundamentally unfair by Irigonegaray's participation because of a conflict of interest, and that the existence of the conflict of interest violated the Due Process Clause of the 14th Amendment.
The district court first determined that there were two reasons why the issue was not properly before the court on a 60-1507 motion. Pointing to Supreme Court Rule 183(c)(3) (2007 Kan. Ct. R. Annot. 243) and Johnson v. State, 271 Kan. 534, 24 P.3d 92 (2001), the district court noted that K.S.A. 60-1507 cannot be used as a substitute for an appeal or as a second appeal of mere trial errors, unless those errors affect constitutional rights and there were exceptional circumstances excusing the failure to appeal them. The district court found no exceptional circumstances excusing Pabst from raising the issue in his direct appeal. Further, the district court specifically found that trial counsel knew of the potential conflict of interest issue and failed to timely object or raise the issue before the district court, thereby failing to preserve the issue for appeal.
However, in the alternative, the district court reviewed cases which had dealt with the issue of prosecutors with a conflict of interest. The court found this case to be factually distinguishable from the others, principally because Pabst did not seek disqualification before the trial court and because Irigonegaray was not the sole or controlling prosecutor, but rather participated under the direct supervision of the assistant attorney general. Moreover, the district court concluded that it is not structural error when a private attorney, retained under K.S.A. 19-717, has a conflict of interest "unless the private attorney effectively controlled critical prosecutorial decisions." In this case, the district court found that any error that may have occurred was subject to a harmless error analysis.
On appeal, Pabst's first four issues involve the alleged conflict of interest of Irigonegaray. First, he argues that Irigonegaray's participation in the prosecution while laboring under a conflict of interest violated K.S.A. 19-705 and the Due Process Clause of the 14th Amendment, rendering his trial fundamentally unfair. Next, Pabst challenges the district court's holding that he could not raise the issue in a 60-1507 motion, arguing in the alternative that (1) the conflict of interest constituted structural error which could be raised for the first time in a 60-1507 motion; or (2) the ineffective assistance of appellate counsel in failing to raise the issue on the direct appeal provides the requisite exceptional circumstances for first-time review. Finally, in separate issues, Pabst complains that his trial counsel should have moved for the disqualification of Irigonegaray and that his appellate counsel should have raised the conflict of interest issue on direct appeal.
Statutory Provisions
Pabst's initial complaint about being placed in a position to be prosecuted by the victims is refuted in some measure by a specific statute authorizing a victim to be represented in the prosecution. K.S.A. 19-717 provides:
"That the prosecuting witness in any criminal action or proceeding may, at his own expense, employ an attorney or attorneys to assist the county attorney to perform his duties in any criminal action or proceeding under any of the laws of the state of Kansas, and such attorney or attorneys shall be recognized by the county attorney and court as associate counsel in such action or proceeding, and no prosecution shall be dismissed over the objection of such associate counsel until the reason of the county attorney for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel, and fully considered by the court."
It is noteworthy that the statute contemplates that the outside attorney will be employed and paid by the prosecuting witness, obviously suggesting an attorney/client relationship between the victim and one of the prosecutors. See State v. Dressel, 241 Kan. 426, 434, 738 P.2d 830 (1987) (the complaining witness is the client of an attorney hired under K.S.A. 19-717). Further, leave of court is not required, but rather the judge, as well as the county attorney, "shall" recognize the victim's attorney as an associate prosecutor. Moreover, the victim's employment of an associate counsel places some restrictions on the county attorney's discretion to dismiss the case, which is ordinarily unrestrained. See State v. Williamson, 253 Kan. 163, Syl. ¶ 1, 853 P.2d 56 (1993) (county or district attorney controls criminal prosecutions and is the person who has the authority to dismiss any charge).
Although the district court did not discuss K.S.A. 19-705, Pabst offers that provision as an alternative to his due process arguments. That statute, in its entirety, provides:
"No county attorney shall receive any fee or reward from or on behalf of any prosecutor or other individuals, except such as are allowed by law for services in any prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney or counsel for either party other than the state or county, in any civil action depending upon the same state of facts upon which any criminal prosecution, commenced but undetermined, shall depend; nor shall any county attorney while in office be eligible to or hold any judicial or other county office whatsoever." K.S.A. 19-705.
Due Process
Pabst relies heavily on Young v. United States, ex rel. Vuitton et Fils S.A., 481 U.S. 787, 95 L. Ed. 2d 740, 107 S. Ct. 2124 (1987). There, the federal district court appointed the attorneys who had represented the beneficiary of a permanent injunction in a civil action to prosecute a criminal contempt action against the adverse civil party based upon a violation of the injunction. The United States Supreme Court reversed the criminal convictions. Four justices found that the appointment of an interested prosecutor was a fundamental error that required reversal without regard to the facts and circumstances of the case. 481 U.S. at 809-810. One justice agreed with the reversal because appointment of an interested party's counsel as special prosecutor exceeded the district court's power under Article III of the United States Constitution. 481 U.S. at 815. Three justices found an abuse of discretion but believed a harmless error analysis was proper. 481 U.S. at 825-27. One justice found no error. 481 U.S. at 827.
While acknowledging that it was not the majority decision of the Court, Pabst nevertheless embraces the opinion of those justices who would find that appointing counsel for an interested party to prosecute the criminal proceedings is fundamental error. That opinion's underlying rationale was that a prosecutor represents the sovereignty, the interest of which is not to win the case, but rather to see that justice is done, i.e., "'the twofold aim of which is that guilt shall not escape nor innocence suffer.'" 481 U.S. at 803 (quoting Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 [1935]). However, an appointed prosecuting attorney who is also representing a party with an interest in the outcome of the prosecution would also owe an ethical duty to the non-sovereignty client to advocate his or her interests, i.e., the attorney would be serving two masters whose interests were not identical. The plurality found that regardless of whether the appointment of a conflicted attorney actually results in prosecutorial impropriety, the harm is in "the potential for private interest to influence the discharge of public duty." (Emphasis added.) 481 U.S. at 805.
Pabst also points us to the decisions of other states which have found a due process violation where the prosecuting attorney in a criminal case also represented the victims in a related civil matter. See, e.g., Cantrell v. Com., 229 Va. 387, 394, 329 S.E.2d 22 (1985) (private prosecutor who has a civil interest in the case "so infects the prosecution with the possibility that private vengeance has been substituted for impartial application of the criminal law, that prejudice to the defendant need not be shown"); State v. Eldridge, 951 S.W.2d 775, 782 (Tenn. Crim. App. 1997); and Com. v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992). But cf. Brown v. State, 242 Ga. 536, 250 S.E.2d 438 (1978) (permissible for a victim's family to hire a special prosecutor so long as the special prosecutor was subject to the direction and control of the district attorney; special prosecutor's representation of the victim's family in civil litigation arising from victim's death was not grounds for disqualification). The principal rationale for those foreign decisions was that the conflicted attorney could not simultaneously serve the divergent interests of two clients.
While the argument that concurrently serving two masters is a per se violation of defendant's due process rights has surface appeal, it dissipates upon closer scrutiny. First, defendant is not one of the clients that is directly subjected to the alleged divided loyalties; the alleged conflict is between the private attorney's duty to the victim on the one hand and to the State of Kansas on the other. Except to the extent that Pabst may be a beneficiary of the duties Irigonegaray owed to the State of Kansas, his own legal representation was not conflicted. Moreover, when the integrity of a defendant's own legal representation is called into question because of a conflict of interest, the basis for relief is the 6th Amendment right to counsel, not a 14th Amendment due process violation. See, e.g., State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995).
Secondly, with or without employed counsel, a victim is involved in the criminal prosecution. Granted, we have said that a complaining witness is not a party in the criminal action. Dressel, 241 Kan. at 436. However, the legislature has clearly indicated that the views and concerns of a victim should be considered by the court under appropriate circumstances. See K.S.A. 74-7333 (creating a bill of rights for victims of crime). Moreover, this State has created a crime victims compensation fund, K.S.A. 74-7332, which recognizes that victims may be entitled to financial redress as a result of the defendant's actions. Obviously, that redress may well be sought through a separate civil action.
Finally, K.S.A. 19-717 appears to implicitly set up an inherent conflict, regardless of the existence of concurrent civil litigation. As noted, the statute provides for the prosecuting witness to employ and pay for the "associate counsel." With regard to the loyalties owed because of that employment, we have said "[a]n attorney is obligated to act in the best interests of his or her client which, in the case of an attorney hired pursuant to K.S.A. 19-717, is the complaining witness who retained the attorney's services." Dressel, 241 Kan. at 434. Yet, Dressel also recognized that an attorney retained by the victim pursuant to K.S.A. 19-717 is "hired to assist the prosecution." 241 Kan. at 434. As such, the Dressel court found the victim-retained associate counsel in that case to be subject to at least a portion of the ethical rules explicitly applicable to prosecutors, then designated as DR 7-103 and currently contained in Rule 3.8 of the Kansas Rules of Professional Conduct (KRPC) (2007 Kan. Ct. R. Annot. 525). Dressel recognized that the "peculiar role of an attorney who is privately retained by a complaining witness to assist in a criminal prosecution" would necessitate compromise and a balancing of the interests the attorney represents. 241 Kan. at 434.
Given that K.S.A. 19-717 implicitly authorizes a serving-two-masters scenario, we cannot find that the associate counsel's concurrent representation of the victim in a separate civil action creates a per se violation of the defendant's due process rights. Nevertheless, all attorneys are subject to the KRPC, regardless of what legislative enactments might implicitly permit.
KRPC 1.7(a)(2) generally precludes a lawyer's representation of a client, if "there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer." 2007 Kan. Ct. R. Annot. 440. If the associate counsel's responsibilities in the civil action require that the defendant be convicted in the criminal action, that attorney's representation of the State of Kansas may be materially limited with respect to performing the prosecutor's duty to assure that justice is done. Moreover, if the associate counsel's materially limited ability to properly assist in the prosecution prejudices the defendant's right to a fair and impartial trial, the defendant would have standing to object to the associate counsel's participation in the prosecution. In other words, although not a due process violation, an objectionable conflict of interest may exist under the facts and circumstances of a particular case.
Statutory Conflict
Pabst also argues that Irigonegaray's participation in the criminal proceedings violated the public policy of this State, as expressed in K.S.A. 19-705. Specifically, he contends that the assistant attorney general assigned to prosecute him was subject to the statute's prohibition against acting as an attorney or counsel for a nongovernmental party in a civil action which depends on the same state of facts as the ongoing criminal prosecution. Pabst then argues that the prohibition is imputed to Irigonegaray, as part of the prosecution "firm." He cites to KRPC 1.10, which provides that none of the lawyers associated in a firm shall represent a client when any one of them practicing alone would be prohibited from doing so. 2007 Kan. Ct. R. Annot. 461.
The explicit language of K.S.A. 19-705 makes its prohibitions applicable to a "county attorney." The question becomes whether one hired "to assist the county attorney to perform his duties" under K.S.A. 19-717 is likewise subject to those prohibitions.
In Dressel, the issue was the extent to which an attorney hired under K.S.A. 19-717 was subject to the discovery provisions of K.S.A. 22-3212, which require the "prosecuting attorney" to provide the defendant with access to certain evidentiary items. The Dressel court declared that a K.S.A. 19-717 attorney was not a "prosecuting attorney," as defined by K.S.A. 22-2202(17), so that the discovery requirements of K.S.A. 22-3212 were not explicitly applicable to him or her. Rather, Dressel described the victim-retained attorney as "merely associate counsel, employed to assist the prosecuting attorney, and [who] did not have control over the case." 241 Kan. at 434. Under that rationale, one could opine that the prohibitions on a "county attorney" are not explicitly applicable to a K.S.A. 19-717 associate counsel.
However, the Dressel opinion did not flesh out its rationale for finding that a K.S.A. 19-717 attorney was not a "prosecuting attorney." The definition of a "prosecuting attorney" included, both then and now, "an assistant county or district attorney and any special prosecutor whose appearance is approved by the court." K.S.A. 22-2202(17). One might find it difficult to grasp the distinction between an assistant county attorney and an attorney hired to assist the county attorney. Moreover, notwithstanding its definitional declaration, Dressel nevertheless required the "associate counsel" to comply with a portion of the prosecuting attorney's discovery obligations under K.S.A. 22-3212 and further subjected that attorney to the ethical obligations set forth in the disciplinary rules then designated as DR 1-102, DR 7-102, and DR 7-103, as if he or she were a prosecuting attorney. 241 Kan. at 434-36.
Granted, we have pointed out that there is an inherent difference between the attorney occupying the public office of prosecutor and an attorney hired by the prosecuting witness to assist the public prosecutor. The public prosecutor is expected to be conflict-free, whereas we have acknowledged that the victim-retained "assistant" comes to the table with built-in divided loyalties. Nevertheless, we need not exacerbate the inherent conflict by absolving the retained attorney of all of the prosecutorial constraints of K.S.A. 19-705. Therefore, we find the K.S.A. 19-717 attorney is subject to the statutory conflict rule of K.S.A. 19-705, i.e., the victim-retained attorney is precluded from representing a party in a civil action that depends on the same state of facts as the ongoing criminal prosecution in which the attorney is assisting the public prosecutor.
Structural Error
In the context of arguing that he could raise the conflict issue for the first time on appeal, Pabst contends that the existence of a conflict of interest for Irigonegaray constitutes structural error. If that contention is correct, our finding of a violation of the statutory conflict rule would not be subject to a harmless error analysis. However, structural errors subject to automatic reversals exist in only very limited cases.
"Structural errors 'are so intrinsically harmful as to require automatic reversal (i.e., "affect substantial rights") without regard to their effect on the outcome.' Neder v. United States, 527 U.S. 1, 7, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999). Automatic reversal is required in limited situations. See, e.g., Johnson v. United States, 520 U.S. 461, 468-69, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 [1963]) (complete denial of counsel); Sullivan v. Louisiana, 508 U.S. 275, 282, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993) (defective reasonable doubt instruction); Vasquez v. Hillery, 474 U.S. 254, 264, 88 L. Ed. 2d 598, 106 S. Ct. 617 (1986) (racial discrimination in selection of grand jury). However, the vast majority of constitutional errors fall within the broad category of trial error subject to harmless error review. People v. Flood, 18 Cal. 4th 470, 499-500, 76 Cal. Rptr. 2d 180, 957 P.2d 869 (1998) (citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 [1967] )." State v. Hill, 271 Kan. 929, 934-35, 26 P.3d 1267 (2001), abrogated on other grounds by State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007).
Pabst does not identify a substantial right that has been unequivocally violated. He cites to a portion of the Young opinion that says the harm in having an interested party bring a contempt prosecution is that it creates "opportunities for conflicts to arise" and creates "at least the appearance of impropriety." 481 U.S. at 806. However, we are directed by K.S.A. 60-261 to "disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." The mere potential for having an effect on substantial rights is not excepted from the harmless error rule.
Moreover, even in the context of the denial of the most fundamental and substantial right to counsel for a criminal defendant, which is ordinarily structural error, a showing of a potential conflict of interest is not always sufficient. "Under Cuyler, in the face of a silent record, where the defendant makes no objection before the trial court, the possibility of a conflict of interest is not sufficient to impugn a criminal conviction. 446 U.S. at 348-50." (Emphasis added.) Jenkins, 257 Kan. at 1084.
In short, we find that the violation of the conflict rule set forth in K.S.A. 19-705 is subject to the harmless error rule.
Harmless Error
Pabst attempts to illustrat