Waddell v. State

NOT DESIGNATED FOR PUBLICATION
No. 120,800
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KENNETH E. WADDELL,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed May 15, 2020.
Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before ATCHESON, P.J., WARNER, J., and WALKER, S.J.
PER CURIAM: Following a second jury trial in 2008, Kenneth E. Waddell was
convicted of two counts of rape, three counts of aggravated indecent liberties with a
child, one count of aggravated criminal sodomy, one count of aggravated indecent
solicitation of a child, and one count of criminal threat. On appeal, a panel of this court
affirmed Waddell's convictions of two counts of rape, one count of aggravated indecent
liberties with a child, and one count of aggravated indecent solicitation. The panel
reversed the remaining convictions and remanded the case to the district court with
further directions. In May 2011, the State voluntarily dismissed the remaining counts, and
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the district court ordered Waddell to serve the remainder of his 330-month sentence.
Waddell later filed a motion pursuant to K.S.A. 60-1507 alleging, among other things,
various ineffective assistance of counsel claims. Following an evidentiary hearing, the
district court denied Waddell's motion, and Waddell timely appealed. Because we find
that Waddell failed to meet his burden to show that his trial counsel's performance was
deficient, we affirm the district court's ruling.
FACTS
This case has a long history in our court, having been here four previous times in
various postures upon direct appeals Waddell filed. Our opinion here will merely
summarize just enough salient facts to place Waddell's K.S.A. 60-1507 motion in
context. Further factual details about the underlying criminal case and our court's prior
decisions are contained in State v. Waddell, No. 92,378, 2006 WL 1379576 (Kan. App.
2006) (unpublished opinion) (Waddell I), and State v. Waddell, No. 100,517, 2011 WL
767836 (Kan. App. 2011) (unpublished opinion) (Waddell II).
In April 2003, Waddell was charged with two counts of rape, three counts of
aggravated indecent liberties with a child, one count of aggravated criminal sodomy, one
count of aggravated indecent solicitation of a child, and one count of criminal threat. The
victim was Waddell's next-door neighbor, J.J., a girl who was 5 years old when the
incidents leading to Waddell's convictions started. Waddell's convictions on all eight
charges at his first jury trial were reversed by a panel of our court as a consequence of the
State's use of inadmissible evidence. Waddell I, 2006 WL 1379576, at *1, 14. Following
a second jury trial in February 2008, Waddell was again convicted on all eight counts. On
April 7, 2008, the district court sentenced him to 330 months in prison, and Waddell
again appealed his convictions.
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Our court affirmed Waddell's convictions for two counts of rape, one count of
aggravated indecent liberties with a child, and one count of aggravated indecent
solicitation resulting from the second jury trial. However, it reversed the remaining
convictions—noting that Waddell's 330-month sentence was not affected by the ruling—
and remanded the case to the district court with instructions to conduct further
proceedings consistent with its opinion. Waddell II, 2011 WL 767836, at *6-7. Pursuant
to the mandate, the State dismissed the remaining charges on May 20, 2011, and the
district court ordered Waddell to serve the remainder of his 330-month sentence. Waddell
did not appeal this ruling.
On March 30, 2012, Waddell filed a K.S.A. 60-1507 motion and supporting
memorandum. On December 19, 2012, the district court summarily denied Waddell's
motion for failure to timely file it within the one-year statute of limitations as required by
K.S.A. 2012 Supp. 60-1507(f). The district court found that the final mandate from our
court was issued on March 24, 2011. Waddell's motion was filed with the district court on
March 30, 2012, six days after the statute of limitations expired. Finding no reasons to
extend the filing deadline, the district court denied the motion.
Waddell timely filed a motion to alter or amend the district court's ruling, arguing
that the statute of limitations began to run 10 days after he was "resentenced" on May 20,
2011. On January 4, 2013, the district court denied the motion, finding that the statute of
limitations period began running from the day this court issued its mandate. Waddell
timely appealed the decision.
On appeal, a panel of our court reversed the district court's ruling, finding that
Waddell's motion was timely filed pursuant to the prison mailbox rule, as Waddell "filed"
his K.S.A. 60-1507 motion with prison officials on March 19, 2012. Waddell v. State, No.
109,583, 2014 WL 3630218, at *6 (Kan. App. 2014) (unpublished opinion) (Waddell III).
The case was remanded with instructions to put Waddell's motion back on the active
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docket. 2014 WL 3630218, at *6. The district court scheduled Waddell's motion for an
evidentiary hearing on May 31, 2016, and July 14, 2016, respectively.
In Waddell's K.S.A. 60-1507 motion and memorandum, he alleged the second jury
trial was fundamentally unfair for several reasons, but the claims important to this appeal
include the following:
• Trial counsel was ineffective for failing to object to the admission of a photograph
of various sex toys found in Waddell's home;
• Trial counsel was ineffective for failing to object to extensive evidence introduced
about Waddell's vast pornographic magazine collection;
• Trial counsel was ineffective for failing to object to Detective Roger Proehl's
testimony about investigating evidence of "grooming" in sexual abuse cases and
how this evidence was present in Waddell's home;
• Trial counsel was ineffective for failing to consult with an expert regarding
Waddell's medical condition, which he claimed prevented him from engaging in
sexual intercourse;
• Trial counsel was ineffective for failing to consult with an expert to rebut the
testimony of Pam Kvas, the nurse who performed the physical examination of J.J.;
and
• Trial counsel was ineffective for failing to consult with an expert in child
interviewing techniques in cases involving sexual assault or abuse.
For the evidentiary hearing, Waddell hired a legal expert named Michael Whalen,
an attorney with considerable experience in reviewing and briefing K.S.A. 60-1507 cases
on appeal, to testify on his behalf. Whalen submitted an expert report in advance of the
hearing. To rebut Whalen's testimony, the State hired an expert named Paul Dean, an
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attorney with extensive experience in defending Jessica's Law cases and experience
prosecuting K.S.A. 60-1507 cases, to testify. Dean did not submit an expert report.
We will discuss each of Waddell's ineffective assistance claims in turn,
summarizing the evidence presented at the second trial in February 2008 and the
testimony presented about that evidence at the evidentiary hearing in May 2016.
Sex toy evidence
At the second trial in February 2008, the State introduced a photograph of various
sex toys that were found in Waddell's bedroom during a search of his home executed
pursuant to a valid search warrant. The State introduced this photograph to support its
theory that Waddell had gained J.J.'s trust over time so he could sexually abuse her; in
other words that Waddell "groomed" J.J. Detective Proehl testified that during child
sexual abuse investigations, the presence of sex toys in the place where the abuse was
alleged to have occurred is an indicator of grooming. Specifically, Detective Proehl
opined that items like sex toys are used as a means of desensitizing child victims to
sexual abuse.
Waddell's trial counsel did not object to the admission of this photograph. On
cross-examination of Detective Proehl, trial counsel elicited testimony that no sex toys
were found when the first search warrant was executed on Waddell's home in February
2003. Detective Proehl admitted that he did not find the sex toy evidence until May 2003,
when he executed a second search warrant and after Waddell had moved out of his trailer.
There was no additional mention of the sex toy evidence during the second trial.
At the evidentiary hearing held on Waddell's K.S.A. 60-1507 motion in 2016,
Whalen testified that trial counsel was deficient for failing to object to the sex toy
evidence, especially considering the extensive evidence introduced about Waddell's
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pornographic magazine collection. He explained that the evidence was irrelevant to any
of the crimes charged and that there was no proof it was ever shown to J.J. or used to
encourage her as Detective Proehl testified. Whalen stated that the evidence was instead
used to indict Waddell's character. Whalen testified that the sex toy evidence likely had a
prejudicial effect because of this, as it was referenced several times during the short jury
trial. He testified that had the evidence been excluded, it could have made a probable
difference in the outcome of the trial.
On direct examination, Dean, the State's expert, agreed that the sex toy evidence
was objectionable because there was never any proof that it was used in relation to the
crimes charged. However, despite trial counsel's failure to object to this evidence, Dean
testified that trial counsel's strategy was still reasonable in how he approached the issue at
trial. Specifically, Dean testified that he spoke with trial counsel about counsel's strategy
regarding the sex toy evidence, and counsel's plan was to address the issue solely on
cross-examination of Detective Proehl. Dean noted that, in his review of the record, he
found that trial counsel did just that and no additional mention of the sex toy evidence
was made throughout trial. While the evidence could have been objected to, Dean did not
believe that this failure amounted to deficient performance or fell below an objective
standard of reasonableness considering the overall presentation of the case.
Pornographic magazine collection evidence
At the second trial, considerable evidence was presented regarding Waddell's
extensive pornographic magazine collection. Detective Proehl testified that he found
several hundred copies of these magazines in a shed behind Waddell's house. He further
testified that he found several additional magazines scattered throughout Waddell's
bedroom and living room. The State entered three examples of pornographic magazines
Detective Proehl seized from Waddell's trailer—he testified he chose them because they
appeared to depict younger adult women.
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While trial counsel objected to admission of these three specific magazines based
on relevance grounds, the district court overruled the objection, and counsel never raised
any such objection for the remainder of trial. Like the sex toy evidence, Detective Proehl
testified that evidence of easily accessible pornographic magazines in places where a
child was allegedly abused was a likely indicator of grooming and desensitization. In
fact, on redirect examination, Detective Proehl admitted that the vast collection was a key
piece of evidence in building the case against Waddell.
Evidence of this pornographic material was referenced repeatedly throughout the
four-day trial:
• Officer Jeffry Rodriguez, who assisted Detective Proehl in executing the first
search warrant of Waddell's home, testified that there were hundreds of these
magazines.
• Maria Diaz, J.J.'s babysitter, testified on cross-examination that J.J. told her that
Waddell made her look at pornographic magazines and that she reported this
statement to Detective Proehl.
• Waddell testified extensively about his magazine collection on direct and cross-
examination, admitting that he caught J.J. on one occasion looking through one of
his magazines in his bedroom. Waddell further testified that he had so many
magazines because he thought some might be worth money someday.
• The State recalled Detective Proehl as a rebuttal witness for the sole purpose of
discussing how many pornographic magazines were found in Waddell's trailer. He
again testified that he found hundreds.
• Both parties also brought up the evidence in their closing remarks.
Defense counsel's apparent strategy was to use the pornographic magazine
collection as evidence that J.J. fabricated the sexual abuse allegations and to undermine
the State's theory that Waddell groomed J.J. for sexual abuse. Counsel believed that the
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State only presented evidence showing a singular violent incident, so any presentation of
evidence inconsistent with that theory served to hurt the State's case—a fact he
highlighted consistently throughout trial. Trial counsel also used the pornographic
magazine evidence to bolster the defense theory. In other words, J.J. could only have
knowledge of certain sexual acts because she was inadvertently exposed to these acts,
including witnessing her mother performing oral sex, witnessing Waddell masturbate
unbeknownst to Waddell, and secretly going through pornographic magazines in
Waddell's home.
On this issue, Whalen testified that trial counsel was deficient for failing to object
to the numerous references made to Waddell's extensive pornographic magazine
collection. He again explained that the evidence was irrelevant to any of the crimes
charged, there was no proof it was ever shown to J.J. or used to encourage familiarity as
Detective Proehl testified, and it could not be used for proclivity evidence because all the
material depicted adults. He stated that the evidence was instead used to indict Waddell's
character. Whalen testified that the references to the material were pervasive throughout
trial, such that it likely had a prejudicial effect. He testified that had the evidence been
excluded, it could have made a probable difference in the outcome of the trial.
Dean testified that he did not believe trial counsel's failure to object beyond the
one instance amounted to deficient performance. Rather, it was a part of counsel's
reasonable overall strategy to undermine the State's grooming theory. Specifically, he
testified that he had a difficult time coming up with alternative ways to explain J.J.'s
knowledge of sexual acts—it seemed to Dean that it was necessary for trial counsel to
present at least some of this evidence to support the defense theory.
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Detective Proehl's testimony on "grooming" investigations
At the second trial, Detective Proehl offered testimony on what he specifically
investigated in cases involving allegations of child sexual abuse. In conducting these
investigations, he testified that he looked for various items of paraphernalia in an alleged
sexual predator's home that the perpetrator might use to facilitate these kinds of crimes,
including easily accessible pornographic materials, sex toys, and Polaroid cameras. He
also noted that there were specific techniques perpetrators may use to groom children for
sexual abuse to gain the child's trust and begin desensitizing them to the abuse. These
techniques include doing activities that make the child enjoy spending time with the
perpetrator, like having pets to attract the child, taking the child to the park, watching
television with the child, or giving the child gifts. Detective Proehl then testified
extensively about several different types of items he found in Waddell's home that were
indicative of grooming: numerous pornographic magazines that were easily accessible,
sex toys, a Polaroid camera, the fact that Waddell had pets, a nude photograph of a
woman in Waddell's bedroom, and a photograph of J.J. in his living room.
Similar to his previous criticisms, Whalen testified that trial counsel was deficient
for failing to object to Detective Proehl's testimony on grooming. He noted that an expert
is generally needed to explain grooming and its influence, and Detective Proehl was not a
certified expert on this subject. Rather, the detective was allowed to testify about what
pedophiles do and then compared it to what Waddell did and what he found in Waddell's
home in this case. Whalen noted that many of these items by themselves are completely
innocent. He further testified that the grooming evidence became a bigger issue during
the trial when the State presented inconsistent evidence that grooming never actually
occurred. As a result, Whalen stated this testimony likely prejudiced the trial's outcome.
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Dean disagreed with Whalen's testimony, finding that trial counsel's performance
was not deficient for his failure to object. He testified that the testimony was more
procedural—Detective Proehl was simply testifying about his experience with these kinds
of cases and what he looks for during these investigations, and then he testified about
what he actually found. In other words, Detective Proehl was not offering an expert
opinion on grooming or that it necessarily occurred in this case. Trial counsel also
testified that he considered objecting to this inquiry, but he refrained because he believed
this hurt the State's case—i.e., the State presented this line of questioning about
grooming, but all the evidence it presented pointed to a singular situation where Waddell
allegedly forcibly raped J.J. Trial counsel indicated his strategy was to use this line of
questioning to undermine the State's theory.
Failure to hire an expert to testify about Waddell's medical condition
At the second trial, Waddell testified that he had a medical condition that
prevented him from engaging in traditional sexual intercourse. However, he admitted that
he could maintain an erection and that he could complete various sexual acts.
At the evidentiary hearing, Waddell testified that he spoke to his trial counsel
about this condition and expressed a desire to have his doctor testify about it. But he
contended that trial counsel said it was not necessary. However, on cross-examination
Waddell admitted again that he could get an erection and that he could complete certain
sexual acts. He further admitted that he did not actually know if his trial counsel
investigated the claim and that his doctor likely would not have been able to testify that
he could not complete certain sexual acts.
Whalen then testified that it was unclear if trial counsel ever investigated the
claim, but that if he did not, it could amount to deficient performance. Not only could
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Whalen not definitively say that trial counsel was deficient as to this issue, he did not
engage in any analysis about how the failure prejudiced Waddell.
Trial counsel testified he did not pursue consulting an expert because of Waddell's
own statements that he could maintain an erection and complete various sexual acts. Trial
counsel believed that the doctor would have only been able to testify that Waddell had
complications, not about the effect those complications had on Waddell's ability to have
sexual intercourse. Dean also testified that trial counsel was not deficient in this instance
because the expert's opinion would be based on Waddell's self-reported pain and thus
would be cumulative.
Failure to hire an expert to rebut Pam Kvas' trial testimony
At the second trial, Pam Kvas, the nurse who conducted a physical examination of
J.J., testified that she did not find any physical evidence that J.J. had been sexually
abused. However, she noted that this was typical considering the history J.J. provided to
her. Specifically, J.J. told Kvas that between summer and fall of 2002, Waddell
penetrated her with his fingers and with his penis. Kvas did not perform the physical
examination of J.J. until February 27, 2003, some five or six months later. She explained
it was typical that she would not find evidence of physical injury in children J.J.'s age
given the elasticity of the genital tissue. On cross-examination, Kvas admitted that J.J.
never reported that she had been sodomized either anally or via oral-genital contact. She
further admitted that the examination was consistent with someone who had never been
sexually abused.
Whalen testified at the evidentiary hearing that he did not believe trial counsel
looked into hiring a medical expert to rebut Kvas' trial testimony and, if he did not, that
would amount to deficient performance. He noted that even though trial counsel got
favorable testimony out of Kvas, there may have been a need for further expert analysis.
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If counsel did not seek such consultation, then Whalen stated he would have to
understand what the basis for trial counsel's strategy was. He could only testify that
failure to consult at all would have qualified as ineffective assistance of counsel. Notably,
Whalen did not provide any analysis on how a lack of such testimony in this case
prejudiced Waddell at trial.
Dean disagreed with this finding, noting that trial counsel was not deficient
because he was able to get Kvas to admit a crucial fact: There was no physical evidence
that Waddell had ever sexually abused J.J. He explained there is no need to call an
additional expert when a State's witness provides evidence that is valuable to the defense.
Dean stated this approach was wholly consistent with trial counsel's strategy that nothing
happened and that an additional expert was unnecessary in this instance.
Failure to hire an expert to testify about child interviewing techniques
At the second trial, Angela Proehl, the investigator who interviewed J.J. in
February 2003 following J.J.'s reports of sexual abuse, testified about what J.J. disclosed
to her during the interview. J.J. told Proehl that Waddell grabbed her and pulled her into
his trailer, that she tried to slap him, and that he pulled her into his bedroom. She told
Proehl that Waddell put his "part" inside her vagina, that he put his mouth on her nipples,
that he put his penis into her anus, that he made her manually stimulate his penis with her
hands, and that he threatened her with a knife. J.J. also reported to Proehl that she was
scared and that Waddell hurt her when he put his penis inside her. At the close of direct
examination the State offered the entire recorded video into evidence, it was admitted
without objection, and it was published to the jury.
This video recording was the subject of much scrutiny during both direct appeals
in Waddell's underlying criminal case. See Waddell I, 2006 WL 1379576; Waddell II,
2011 WL 767836. In Waddell I, our court reversed Waddell's convictions following his
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first jury trial because the video recording was entered in lieu of testimony from J.J.,
which violated Waddell's right to confront his accuser. 2006 WL 1379576, at *8. In
Waddell II, our court reversed four of Waddell's convictions on statutory grounds, finding
that the district court erred in admitting the videotape without providing Waddell a copy
of the written transcript of the interview as required by K.S.A. 60-460(a). 2011 WL
767836, at *3-4. However, our court recognized that Waddell did not specifically
challenge any testimony regarding the admissibility of statements made by J.J. to Angela
Proehl, Detective Proehl, or Kvas. 2011 WL 767836, at *3.
At the evidentiary hearing on the K.S.A. 60-1507 motion, Waddell testified that he
was unsure if he discussed obtaining an expert on child interviewing skills with his trial
counsel. Whalen also testified that he was unaware whether trial counsel consulted with
an expert regarding child interview techniques. He noted that the interviewer had no
formal psychological training for these types of interviews and that it may have been
something trial counsel should have investigated. Nevertheless, Whalen did not allege
that trial counsel was deficient given the lack of information, nor did he provide any
analysis as to how Waddell was prejudiced by a failure to consult such a witness.
Both trial counsel and Dean testified they could find nothing wrong with the video
that caused them concern. Both agreed, based on a review of the video, that no expert
was needed. Dean noted that trial counsel's performance was not deficient given that
there were no glaring concerns in the interview, such as leading or suggestive questions
used to coach a child witness.
District court's ruling
The district court took the matter under advisement and later issued its
memorandum denying Waddell's K.S.A. 60-1507 motion on September 27, 2017. The
district court found that trial counsel was not deficient for failing to object to the
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admission of the sex toy evidence or the numerous references to Waddell's pornographic
magazine collection. In so finding, the court recognized that it had to give significant
deference to trial counsel's strategic decisions. It noted that trial counsel considered the
impact this evidence could have on the trial but ultimately concluded that the best
strategy was to admit the evidence to support the defense's theory that J.J. fabricated the
allegations. Additionally the district court stated that, even without the State's
presentation of the evidence, it was likely that Waddell would have had to reference that
evidence anyway to support the defense theory of the case.
Concerning Detective Proehl's testimony, the district court again found that trial
counsel was not ineffective for failing to object. It found that Detective Proehl's
statements were made in response to procedural questions about how the detective
investigated child sexual abuse claims. In other words, Detective Proehl was merely
describing his own conduct and the way in which he conducted these investigations.
Thus, the detective offered no improper expert opinion.
Regarding the issues surrounding trial counsel's alleged failure to consult various
experts, the district court specifically found that Waddell failed to meet his burden to
show how trial counsel was deficient in this regard or how he was prejudiced. As to his
complaints about not calling experts about Waddell's medical condition and Kvas'
testimony, the district court stated that Waddell presented no evidence to support his
claims that experts were needed in these subjects, nothing showing that they were
available to testify as to these subjects, and nothing about what their opinions on those
subjects might be. On the child interviewing techniques issue, the district court held that
Waddell presented no evidence as to what any potential expert's opinion would have been
or how counsel's failure to hire such an expert prejudiced him at trial.
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In summary, the district court found that Waddell simply failed to meet his burden
of showing ineffective assistance of counsel on any of the issues he presented and,
accordingly, denied his K.S.A. 60-1507 motion. Waddell has timely appealed.
ANALYSIS
After a full evidentiary hearing on a K.S.A. 60-1507 motion, the district court
must issue findings of fact and conclusions of law concerning all issues presented.
Supreme Court Rule 183(j) (2020 Kan. S. Ct. R. 223). We review the district court's
findings of fact to determine whether they are supported by substantial competent
evidence and are sufficient to support the court's conclusions of law. State v. Adams, 297
Kan. 665, 669, 304 P.3d 311 (2013). We must also give deference to the district court's
findings of fact, accepting as true the evidence and any inferences that support or tend to
support the district court's findings. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10
(2007). Our review of the district court's ultimate conclusions of law is de novo. Adams,
297 Kan. at 669. However, we do not reweigh testimony or the credibility of any
witnesses when reviewing ineffective assistance of counsel claims. Mullins v. State, 30
Kan. App. 2d 711, 716, 46 P.3d 1222 (2002).
In his brief, Waddell claims that the district court erred in denying his K.S.A. 60-
1507 motion. Specifically, Waddell asserts that he established that trial counsel's
performance was deficient because he failed to object to the following: (1) introduction
of sex toy evidence, (2) extensive references to Waddell's extensive pornographic
magazine collection, and (3) Detective Proehl's testimony about how he conducts child
sexual abuse cases. Waddell further claims that he established that trial counsel was
ineffective because he failed to consult with experts regarding Waddell's medical
condition that allegedly prevented him from engaging in sexual intercourse, to rebut
Kvas' medical testimony, and regarding child interview techniques in cases of sexual
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assault and abuse. Waddell argues that he was prejudiced by counsel's deficiencies
because, but for these deficiencies, the trial's outcome would have been different.
To prevail on a claim of ineffective assistance of counsel, a defendant must
establish (1) that the performance of defense counsel was deficient under the totality of
the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury
would have reached a different result absent the deficient performance. Sola-Morales v.
State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]). 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. Edgar v. State,
294 Kan. 828, 838, 283 P.3d 152 (2012); Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868
(2007). The reviewing court must strongly presume that counsel's conduct fell within the
broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318
P.3d 987 (2014). To establish prejudice, the movant must show a reasonable probability
that, but for counsel's deficient performance, the outcome of the proceeding would have
been different, with a reasonable probability meaning a probability sufficient to
undermine confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828
(2015).
Waddell's first two claims are similar in nature. He argues that his trial counsel
was deficient for failing to object to admission of evidence depicting his sex toys and to
numerous references made about his extensive pornography collection. He contends that
this evidence was highly prejudicial to his case because the jury could have easily
concluded that Waddell was a sexual deviant.
A fair assessment of trial counsel's 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
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that time. Again, there is a strong presumption that counsel's conduct falls within the
wide range of reasonable assistance. Edgar, 294 Kan. at 838.
While trial counsel's strategic choices in this case were certainly unorthodox, we
believe the district court was correct in determining that his failure to object to this
evidence was not deficient. The record shows that trial counsel considered the impact this
evidence would have on the trial. However, counsel reasonably concluded that his best
course of action to discredit the State's case, support the defense's theory, explain
Waddell's interactions with J.J., and explain J.J.'s knowledge of sexual acts was to let the
evidence come in relatively unchallenged. In consequence, to support the defense theory,
there was no avoiding at least some reference to this material, particularly considering the
fact that Waddell made voluntary statements to police about this material and how he
previously observed J.J. looking at it in his home. While the defense strategy was
unsuccessful, the record shows that trial counsel reasonably weighed the evidence and
presented a logical and cohesive version of events that possibly could create reasonable
doubt in the State's case. And because Waddell could not show how counsel's
performance was deficient, this court properly denied his motion.
Waddell's next claim is that his trial counsel was deficient for failing to object to
Detective Proehl's testimony regarding his experience investigating child sexual abuse
cases and as to various techniques that perpetrators use or items they may possess to
groom their victims. Waddell argues this was improper expert opinion and Detective
Proehl should not have been allowed to testify on this subject. Because counsel failed to
object, Waddell contends he was unfairly prejudiced at trial.
At the evidentiary hearing and on appeal, Waddell relies on our court's opinion in
Mashaney v. State, No. 101,978, 2010 WL 3731341 (Kan. App. 2010) (unpublished
opinion). In Mashaney, the movant was previously convicted of aggravated criminal
sodomy and aggravated indecent liberties stemming from an incident involving his 5-
17
year-old daughter. At trial, a detective with no prior experience in child sexual abuse
cases testified to the following: (1) that there was a correlation between bedwetting and
sexual abuse and (2) that abusers tend to groom their victims by giving them gifts. The
detective noted that the defendant gave the victim a gift. Trial counsel did not object to
this line of questioning. At a presentence hearing to set aside the defendant's convictions,
trial counsel admitted that she had no strategic reason for why she failed to object. Our
court construed the detective's testimony as improper expert opinion, finding that there
was no evidence to support that the officer was an expert, and thus he should not have
been allowed to testify as to this subject matter. 2010 WL 3731341, at *9. It further found
that the deficiency proved highly prejudicial because the only evidence offered in the
case was the victim's accusation—there was no physical evidence she had been abused.
Such testimony severely affected the defendant's credibility during the short jury trial.
2010 WL 3731341, at *10.
While Mashaney's facts are similar to ours, it is distinguishable from the present
case in several ways. Unlike the detective in Mashaney, Detective Proehl testified that he
had extensive experience and specialized training in conducting child sexual abuse
investigations. His testimony largely focused on his investigative process in these cases:
how he gathered information, how he conducted his investigations based on that
information, various items and techniques he looked for, and how he gathered evidence
based on all of this. Detective Proehl then testified about how he applied that process in
this case. He found various items in Waddell's home that were consistent with the
information he received from J.J. and other witnesses—pornographic magazines, a naked
photograph of a young woman found in Waddell's room, knives, etc. This was all
corroborating evidence. Detective Proehl also collected other items that were consistent
with his knowledge and training in these types of cases—a photograph of J.J., a Polaroid
camera, sex toys, other pornographic material, etc. However, he also admitted there were
many things he did not find, such as biological evidence—a fact that defense counsel
specifically focused on and highlighted all throughout the trial.
18
Most significantly, unlike counsel in Mashaney, trial counsel in this case made a
strategic decision not to object to Detective Proehl's testimony because of how
detrimental he believed it was to the State's theory. Specifically, the State's theory was
that Waddell groomed J.J. for sexual abuse. Detective Proehl's testimony was the only
evidence that supported this theory. The evidence presented by all of the State's other
witnesses painted a very different picture: that J.J. reported a single horrifically violent
assault. In fact, one of the State's witnesses, Angela Proehl, disagreed on cross-
examination that grooming ever occurred in this case based on her interview with J.J.
Trial counsel consistently highlighted the State's inconsistent evidence with
various witnesses throughout trial and ultimately used his closing arguments to make a
strong plea that the State presented no actual evidence to convict Waddell. Again, while
the strategy was unorthodox and unsuccessful, the record shows that trial counsel
reasonably weighed the evidence and presented a logical and cohesive version of events
that was calculated to create reasonable doubt in the State's case. Because Waddell cannot
show that trial counsel's failure to object to this testimony was deficient, the district court
correctly denied Waddell's K.S.A. 60-1507 motion.
As for the remaining issues related to trial counsel's failure to consult various
experts, Waddell has simply failed to meet his burden to show that trial counsel's
performance was deficient. Based on the record, Waddell makes no showing that trial
counsel actually failed to investigate these claims or consult with experts, let alone that
he was deficient by any such failure. Both Waddell and Whalen testified at the
evidentiary hearing that they were unsure if trial counsel ever consulted with various
experts or investigated the various claims certain State witnesses made at trial. Thus,
Waddell's ineffective assistance claims as to these points are speculative at best. But,
even if he could show that trial counsel's performance was deficient, Waddell makes no
specific argument as to how the alleged deficiencies prejudiced his right to a fair trial.
19
In summary, because Waddell failed to meet his burden of showing that his
counsel was ineffective as to the issues in his motion, we find that the district court did
not err in denying his K.S.A. 60-1507 motion.
Affirmed.
20