Geist v. State ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,856
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DAVID GEIST,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed December
23, 2020. Affirmed.
Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE, J., and MCANANY, S.J.
PER CURIAM: David Geist appeals the district court's denial of his K.S.A. 60-1507
motion. Geist maintains that his trial counsel provided unconstitutionally ineffective
assistance of counsel by failing to call an expert witness to testify at his criminal trial, and
he asserts that the district court erred in finding that he had no right to relief on this claim.
Finding no error, we affirm the district court's judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
In March 2012, a jury convicted Geist of two counts of aggravated indecent
liberties with a child. The victims were his two daughters, A.G. and E.G. State v. Geist,
No. 108,257, 2014 WL 801854, at *1 (Kan. App. 2014) (unpublished opinion). Both girls
testified at the trial and the State admitted into evidence interviews of the girls conducted
at Sunflower House. The district court sentenced Geist to a controlling term of life
without the possibility of parole for 25 years. Geist filed a direct appeal, and this court
affirmed his convictions and sentence. 2014 WL 801854, at *1. The Kansas Supreme
Court denied his petition for review on June 29, 2015, and the Clerk of the Appellate
Courts issued the mandate on July 2, 2015.
On June 29, 2016, Geist timely filed a K.S.A. 60-1507 motion in district court.
Geist raised many issues in the motion; as relevant to this appeal, he argued that his trial
counsel, David Magariel, was ineffective because of "his failure to retain an expert
witness on the issue of appropriate child interview techniques." He asserted that Magariel
could have used an expert to attack A.G. and E.G.'s interviews, to present testimony
about forensic interviewing of child sex abuse victims, and to prepare to cross-examine
the investigating officers. Geist claimed that use of expert testimony was crucial to his
case, which he contended Magariel would have known had he adequately investigated.
On August 9, 2017, the State moved to dismiss, arguing that Geist had raised no
issues that warranted an evidentiary hearing because res judicata barred seven of Geist's
claims and the district court should summarily deny the remaining three, including his
ineffective assistance of counsel claims. The State asserted that the motion, files, and
records of the case conclusively showed that Geist was entitled to no relief. Geist
responded to the motion, asserting that his claims were substantial enough to justify an
evidentiary hearing, at least on his claims of ineffective assistance of counsel.
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The district court agreed with Geist and held an evidentiary hearing on September
27, 2018. By the time that hearing occurred, the parties had narrowed the focus of Geist's
K.S.A. 60-1507 motion to whether Magariel's failure to use expert testimony at the trial
resulted in ineffective assistance of counsel that prejudiced Geist.
Magariel testified at the hearing that he had considered hiring an expert on child
interviewing techniques. He spoke with a more experienced defense attorney who
recommended Dr. Greg Sisk, a psychologist. During his sole phone conversation with
Sisk, the date of which Magariel could not remember, he asked Sisk "what things he
would be looking for in reviewing Sunflower House [interviews] and other issues in the
case that would draw his attention." Sisk said that it was important to know whether the
children had made any statements about abuse before the interview because that could be
evidence about the appropriateness of the interviews at Sunflower House. Magariel knew
that both girls had done so, so he "thought that was something that weighed against
[using Sisk's] testimony." Evidence admitted at trial showed that both A.G. and E.G.
separately confided in friends and then adults that Geist had inappropriately touched
them. Sisk also emphasized to Magariel the importance of whether the interviewer had
reinforced certain answers or used leading questions.
Magariel also testified that he did not consider the Sunflower House interviews the
most damaging evidence against Geist. Although Magariel did not identify what he
believed to be the most damaging evidence, a review of the record shows that A.G. and
E.G. both testified at trial that Geist had molested them many times. The State also
admitted into evidence at trial postcards Geist sent his wife and children from jail in
which he admitted he "'made many mistakes in my life with you all,'" he told his wife "'I
know I did you and the kids wrong,'" and he asserted that he "'sure would like to make all
this up to all of you through Jesus.'" 2014 WL 801854, at *3-4. And during an interview
with police, a recording of which was published to the jury, when confronted with A.G.'s
allegations, Geist at first denied touching her but eventually said, "'If she said it
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happened, it happened.'" 2014 WL 801854, at *1. Moreover, when the detective asked
Geist during the interview "whether he did it, Geist responded, 'Yes.'" 2014 WL 801854,
at *1.
Magariel testified that his defense theory was that A.G. had made false allegations
because Geist was the "disciplinarian" parent and he had prohibited her from pursuing a
relationship. Magariel "knew early on" that his defense strategy would include an attempt
to discredit A.G. by pointing out that she had recanted her allegations at one point and
then said that the recantation was a lie. Magariel felt that focusing on the changing details
of the girls' allegations was the best defense strategy to pursue. Thus, Magariel testified
he "wasn't sure there was a ton of value in discrediting the interview" and he decided not
to retain Sisk as an expert; he "just didn't think it was going to add much to our defense."
Next, Geist presented expert testimony from clinical psychologist Dr. Robert
Barnette, who had reviewed the trial testimony of Kay Spaniol, the social worker who
was treating A.G. and E.G. Barnette contended that Spaniol did "not really seem to have
any mastery of research that's widely and easily available." He disagreed with her trial
testimony that there are certain general characteristics displayed by sexually abused
children, asserting that there are no such characteristics that do not also occur in children
who were not sexually abused. Barnette also disagreed with Spaniol's trial testimony that
delayed disclosure of sexual abuse is common; he testified that research and literature did
not support that statement. Similarly, although Spaniol testified that children recanting
sexual abuse allegations happens "quite often," Barnette testified that the research did not
support that statement and, in his own experience, recantation was "relatively rare."
Barnette also reviewed the Sunflower House interviews. He testified that the
protocol being used—which he identified as the RATAC or Finding Words protocol—
was not peer-reviewed and the reliability of the protocol was unknown. In Barnette's
opinion, the interviews of A.G. and E.G. were not properly conducted; the interviewers
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asked leading questions, they did not explore alternative hypotheses, and they displayed
confirmatory bias by failing to ask whether the alleged acts had happened. Barnette
identified 60 questions asked during A.G.'s interview and 52 questions asked during
E.G.'s interview that he felt were inappropriately leading or suggestive.
On cross-examination, the State attacked Barnette's qualifications, noting that his
undergraduate degree was in English and theater, his master's degree was in counseling
through the education department, and his doctorate degree was in school psychology.
Barnette acknowledged that he was no longer active in at least two of the professional
organizations identified on his CV and he was unaware whether some organizations in
which he claimed membership still existed. As for the Sunflower House interviews,
Barnette agreed on cross-examination that the interviewers had used some nonleading
questions, although he had not mentioned them in his report. He also conceded that some
of the leading questions he cited referred to disclosures that had been made minutes
before in the interview. And he agreed that "[s]ome leading questions" are acceptable.
In rebuttal to Barnette's testimony, the State called Erin Miller Weiss, a forensic
interviewer at Sunflower House. Weiss testified that at the time of the interviews in
Geist's case, Sunflower House did not use the Finding Words or RATAC protocol; it
most closely followed the National Children's Advocacy Center interview structure. Like
Barnette, Weiss had reviewed A.G. and E.G.'s interviews, but she found the interviews
"solid." According to Weiss, the interviewers allowed the children to narrate freely, they
did not make assumptions, they asked the children to clarify statements in their own
words, and they explored alternative hypotheses when appropriate. Weiss also testified
that based on conducting over 1,200 forensic interviews, she disagreed with Barnette's
assertion that most sexual assault is disclosed within a day or two of happening.
The district court filed its 11-page memorandum decision on January 17, 2019.
The district court made detailed findings of facts and conclusions of law and found that
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Magariel had "made a strategic decision to not retain Dr. Sisk and not to identify him as
an expert witness." The district court also found that even if Magariel had presented
expert testimony at trial criticizing the interview techniques used in this case, "there is no
reasonable probability that a jury would believe that the interviewers' technique was
leading or suggestive such that it influenced the recorded statements made by the child
witnesses and their later testimony at trial." Thus, the district court found that "Geist was
not unduly prejudiced by the decision not to call an expert witness at trial to challenge the
Sunflower House interview technique or the manner in which the child victims were
interviewed in this case."
The district court also rejected Geist's argument that Magariel was ineffective for
failing to retain Sisk to rebut Spaniol's testimony, finding that "Spaniol's testimony was
based upon her personal experience and was not offered to the jury as expert testimony."
The district court also found that "Weiss' testimony defending the Sunflower House child
forensic interview protocol was more credible than the criticisms being raised by Dr.
Barnette." Finally, the district court noted that the trial evidence included evidence of
"Geist's own actions" that supported the children's allegations, including the phone calls
and postcards from Geist to his family after his arrest. The district court found that Geist
had not shown that Magariel's performance was unconstitutionally deficient nor had he
shown the prejudice required to warrant reversal of his convictions. Thus, the district
court denied Geist's K.S.A. 60-1507 motion. Geist timely appealed the decision.
ANALYSIS
On appeal, Geist argues that the district court erred in denying his K.S.A. 60-1507
motion. He contends that Magariel did not gather sufficient information to make an
informed decision about whether to retain an expert witness and so his decision not to do
so cannot be excused as a strategic decision. Geist focuses on Magariel's failure to ask
Sisk to review A.G. and E.G.'s interviews, which he asserts means that Sisk "could not
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have possibly formed an adequately informed opinion" on the appropriateness of the
interviews. Geist contends that if the jury had heard expert testimony challenging the
interviewing techniques, it could have "rejected the interviews and acquitted" him.
The State responds that substantial evidence supports the district court's finding
that Magariel's decision was strategic. The State also argues that failing to provide the
interviews to Sisk for review was not insufficient investigation because Magariel's trial
strategy did not include challenging the interviews. In any event, the State asserts that
even if Magariel's decision not to hire Sisk was erroneous, Geist was not prejudiced by
the decision, so this court need not reverse.
"The Sixth Amendment to the United States Constitution guarantees the right to
effective assistance of counsel, and denial of the right can lead to reversal of a jury
verdict. Courts consider whether a reversible denial of the right occurred by applying a
two-prong test stated by the United States Supreme Court in Strickland [v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. A convicted defendant must
first establish deficient performance by 'show[ing] that counsel's representation fell below
an objective standard of reasonableness.' Then the defendant must show that the deficient
performance prejudiced the defense.
"After a full evidentiary hearing about an ineffective assistance of counsel claim
under K.S.A. 60-1507, an appellate court reviews a district court's findings of fact and
conclusions of law under a mixed standard of review. The appellate court examines the
record and determines whether substantial competent evidence supports the district
court's factual findings and determines whether the court's factual findings support its
conclusions of law. The appellate court then reviews the district court's conclusions of
law de novo. [Citations omitted.]" Balbirnie v. State, 311 Kan. 893, 897-98, 468 P.3d 334(2020).
"Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. The reviewing court must strongly presume that counsel's conduct fell
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within the broad range of reasonable professional assistance." Brown v. State, 58 Kan.
App. 2d 808, 821, 475 P.3d 689 (2020), petition for rev. filed October 26, 2020. We must
make "'every effort . . . 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.'" 58 Kan. App. 2d at 821. "'The decisions on what
witnesses to call . . . and all other strategic and tactical decisions are the exclusive
province of the lawyer after consultation with his or her client.' . . . '"Strategic choices
made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable."' [Citations omitted.]" State v. Johnson, 304 Kan. 924, 951,
376 P.3d 70 (2016). "[T]his court generally does not second-guess strategic decisions of
counsel." Breedlove v. State, 310 Kan. 56, 65, 445 P.3d 1101 (2019).
As Geist notes, "[m]ere invocation of the word 'strategy' does not insulate the
performance of a criminal defendant's lawyer from constitutional criticism." Wilkins v.
State, 286 Kan. 971, 982, 190 P.3d 957 (2008). To make a sound strategic decision,
defense counsel must conduct sufficient investigation to make an informed choice. 286
Kan. at 982. Geist argues that Magariel's decision not to call an expert witness on child
interviewing techniques stemmed from insufficient investigation because Magariel did
not provide Sisk with the children's interviews to review. Geist points out that Magariel
might have chosen to call an expert witness "if he knew more than 60 of the interview
questions asked were leading, inappropriate, suggestive questions," as Barnette testified
at the K.S.A. 60-1507 hearing.
But Magariel did not base his decision not to call an expert witness solely on a
belief that the interviews were conducted perfectly. As he testified at the K.S.A. 60-1507
hearing, Magariel knew that both victims had made allegations against Geist outside the
Sunflower House interviews, he did not believe that the interviews were the most
damaging evidence against Geist, and his defense strategy was discrediting the victims,
not focusing on the interviews.
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Geist relies on Mullins v. State, 30 Kan. App. 2d 711, 46 P.3d 1222 (2002), in
which this court held that defense counsel in a child sex abuse case provided ineffective
representation by failing to retain an expert witness. In Mullins, a defense attorney
testified at the K.S.A. 60-1057 hearing "that the use of experts in this type of case was
crucial and that fact was well known at the time of Mullins' criminal trial." 30 Kan. App.
2d at 717. The State did not controvert that testimony, nor did it present any evidence "of
strategic reasons for counsel's failure to consult or procure an expert." 30 Kan. App. 2d at
717. In fact, Mullins' trial counsel testified that he "did not look into the possibility of
hiring his own expert" and "[h]e could not recall looking into the possibility of hiring
experts to conduct independent exams or to review the exams done by State's witnesses."
30 Kan. App. 2d at 714.
In contrast, at Geist's K.S.A. 60-1507 hearing, Margariel not only testified that he
spoke with Sisk about what to look for when reviewing the interview recordings, he also
testified about the various strategic reasons he chose not to retain an expert witness for
trial. Unlike in Mullins, where the uncontroverted evidence at the K.S.A. 60-1507 hearing
required a finding that trial counsel had failed to investigate retaining an expert or make a
strategic decision to refrain from doing so, the evidence at Geist's hearing was enough to
support the district court's finding that Magariel made a strategic decision not to retain an
expert witness on child interviewing techniques. Moreover, despite Geist's reliance in his
appellate brief on Barnette's testimony at the K.S.A. 60-1507 hearing that the
interviewing techniques were worrisome, Weiss testified at the hearing that the interview
techniques were solid, and the district court found Weiss' testimony more credible. And
as an appellate court, we do not reevaluate witness credibility. Shumway v. State, 48 Kan.
App. 2d 490, 496, 293 P.3d 772 (2013).
Finally, we note that even if Magariel provided objectively deficient
representation by deciding not to retain an expert for trial, Geist has not met his burden to
show that he was prejudiced. To prevail on his K.S.A. 60-1507 motion, Geist must show
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"'that the decision reached would reasonably likely have been different absent the
errors.'" Balbirnie, 311 Kan. at 899-900 (quoting Strickland v. Washington, 466 U.S. 668,
696, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]). In this context, "a 'reasonable probability'
means 'a probability sufficient to undermine confidence in the outcome.'" Balbirnie, 311
Kan. at 900.
At Geist's trial, even discounting the Sunflower House interviews, A.G. and E.G.
both testified in detail about times when Geist molested them. The school counselor to
whom A.G. reported that Geist was molesting her testified. The friend to whom E.G.
reported testified. E.G. then disclosed the abuse to that friend's mother, who also testified
at trial. During an interview with police, a recording of which was published to the jury,
when confronted with A.G.'s allegations, Geist at first denied touching her but eventually
said, "'If she said it happened, it happened.'" Geist, 2014 WL 801854, at *1. Moreover,
when the detective asked Geist during the interview "whether he did it, Geist responded,
'Yes.'" 2014 WL 801854, at *1. And, as discussed above, the evidence at trial also
included the postcards and phone calls while Geist was in custody.
Considering all this evidence, there is no reasonable probability that the jury
would have acquitted Geist, even if Magariel had presented expert testimony that
successfully challenged the Sunflower House interviews. The district court's findings in
its memorandum decision are supported by substantial competent evidence in the record.
Because Geist has shown neither that Magariel's representation fell below an objective
standard of reasonableness nor that the deficiency prejudiced Geist, we conclude the
district court did not err in denying Geist's K.S.A. 60-1507 motion.
Affirmed.
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