State v. Buchhorn

NOT DESIGNATED FOR PUBLICATION
No. 122,252
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CARRODY M. BUCHHORN,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed August 13, 2021.
Reversed and remanded.
William J. Skepnek, of The Skepnek Law Firm, P.A., of Lawrence, Keynen J. (K.J.) Wall,
Quentin M. Templeton, and Russell J. Keller, of Forbes Law Group, LLC, of Overland Park, Stephan L.
Skepnek, of The Sader Law Firm, of Kansas City, Missouri, and Kevin Babbit, of Fagan & Emert, LLC,
of Lawrence, for appellant.
Emma C. Halling, assistant district attorney, Kate Duncan Butler, assistant district attorney,
Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., HILL and CLINE, JJ.
PER CURIAM: This matter involves a child who died unexpectedly at the home
daycare where Carrody M. Buchhorn worked. Buchhorn was the last person who
admitted having contact with the child. After the Douglas County coroner ruled the
child's death was instantaneous and caused by a blow to the head, a jury convicted
Buchhorn of second-degree murder. We reverse Buchhorn's conviction and remand for a
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new trial because her trial counsel's constitutionally deficient performance prejudiced her
right to a fair trial.
FACTS
Nine-month-old O.O. was found unresponsive in a Eudora daycare crib, following
an afternoon nap. The owner called 911, while Buchhorn performed CPR on O.O.
Despite Buchhorn's and first responders' efforts to resuscitate the baby, O.O. did not
survive.
During the investigation of O.O.'s death, police interviewed Buchhorn twice. She
waived privilege in both interviews and consistently denied harming O.O. Buchhorn, a
mother of two grown children, had no history of abuse or violence and no prior criminal
history.
The Douglas County coroner, Dr. Erik Mitchell, performed the autopsy on O.O.
Dr. Mitchell's autopsy revealed that O.O. had suffered a significant skull fracture but no
brain swelling. Dr. Mitchell deduced that O.O. died instantly following a blow to the
head, which he claimed released mechanical energy into the base of the brain causing
"temporary cessation of function at the base of the brain" or "depolarization of neurons."
He suspected that O.O. was stepped on.
Since Buchhorn was the last person who admitted having contact with O.O., the
State charged her with first-degree murder and in the alternative, second-degree murder, a
felonious, unintentional, but reckless killing of a human being. Buchhorn retained law
partners Paul Morrison and Veronica Dersch to represent her.
Dr. Mitchell testified about his "depolarization theory" on O.O.'s cause of death at
the preliminary hearing. He said he believed, "going on statistics," that O.O. died
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instantaneously due to "a direct effect on depolarization of neurons at the area of the base
of the brain, upper spinal cord manila, [which] interferes with the ability to breathe, and
that leads to death." He concluded O.O. had no "anatomic deformity or no anatomic
reason to be dead other than the physical injury, and that this physical injury will release
energy into the area that is critical for survival at the base of the brain."
Buchhorn's trial counsel did not elicit information about the foundation of Dr.
Mitchell's depolarization theory or challenge it at the preliminary hearing. Her counsel
did not ask Dr. Mitchell about the statistics on which he relied to develop his theory, nor
did they ask Dr. Mitchell to identify any medical literature which may support or address
this theory.
At trial, Dr. Mitchell recounted his opinion on O.O.'s cause of death. He again
noted that O.O. had a skull fracture with little brain swelling, which caused him to
conclude not much time had passed between the trauma and death. Dr. Mitchell said a
skull fracture is not inherently fatal but becomes fatal if energy is transferred to the brain.
He also testified that if someone were with O.O. when the injury occurred, that person
would immediately recognize something was wrong with O.O. and that O.O. needed
immediate care. Buchhorn's trial counsel raised no objections to Dr. Mitchell's testimony
regarding his depolarization theory.
In addition to Dr. Mitchell's testimony, the State also admitted electronic messages
from Buchhorn sent shortly before O.O.'s death, complaining about her low pay and
disparaging the attitude of the daycare owner.
Buchhorn's trial counsel retained a forensic pathologist, Dr. Carl Wigren, to testify
at trial. Dr. Wigren resided in Seattle, Washington, and was referred to them by another
expert who was not taking any new cases. Dr. Wigren did not address Dr. Mitchell's
depolarization theory in his testimony. Instead, he alternatively interpreted O.O.'s
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injuries. Dr. Wigren testified that he believed O.O.'s skull fracture showed signs of
healing from an injury that was a few days to a week old. When asked if he knew what
killed O.O., Dr. Wigren said, "I honestly don't."
The State relied heavily on Dr. Mitchell's opinion on O.O.'s cause of death in
closing arguments. Because Dr. Mitchell contended that death by depolarization is nearly
instant, the State repeatedly argued this theory implicated Buchhorn, as the last person to
care for the child. The State also argued Dr. Mitchell was more credible than Dr. Wigren,
noting his opinions were more reliable because of his "impressive" professional
experience. Buchhorn's counsel argued the State presented only circumstantial evidence.
The jury deliberated for two days before returning a verdict of guilty on the lesser
charge of second-degree, reckless murder.
After the verdict, Buchhorn hired new counsel and moved for a new trial. Among
other issues, Buchhorn challenged the admissibility of Dr. Mitchell's depolarization
theory under the Daubert standard for expert opinion testimony and raised several
ineffective assistance of counsel claims, including (1) trial counsel failed to investigate
Dr. Mitchell's testimony, (2) trial counsel failed to file an appropriate Daubert motion,
and (3) trial counsel failed to present responsive expert testimony at trial. See Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469(1993).
Several witnesses testified at the subsequent evidentiary hearing. Dr. Mitchell also
produced materials for this hearing, after the jury trial, that he contended supported his
theory of depolarization.
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Failure to challenge depolarization theory
Dr. Sudha Kessler, a licensed physician and board-certified pediatric neurologist,
testified for Buchhorn. She practiced pediatric neurology at the University of
Pennsylvania Children's Hospital in Philadelphia, and she had extensive experience
treating pediatric brain injuries and assessing the effect of head trauma. Dr. Kessler
testified she investigated causes of death as a quality review panel member.
Dr. Kessler evaluated Dr. Mitchell's depolarization theory and found it to be
unreliable. She testified that some energy, such as electrical or electromagnetic, can
impact the signals of the brain cells, but not kinetic or mechanical energy, such as a force
from a blow to the head. Dr. Kessler was "not aware of any circumstances in which
mechanical energy directly translates into electrical change in the brain." Dr. Kessler had
never heard or read about a brain death with no evidence of brain injury.
Dr. Kessler reviewed texts, published studies, and other sources of medical
research, but she found no support for the proposition that mechanical energy can
depolarize, interfere with, or disrupt the brain cells or nerves and cause instant death,
without causing injury to the brain. Dr. Kessler also reviewed the literature Dr. Mitchell
produced posttrial and testified she did not believe it supported Dr. Mitchell's theory. Dr.
Kessler further noted:
"[Dr. Mitchell's theory is] just fantastical, because it's not something I have ever been
taught, not something I teach, not something—just not consistent. It's not consistent with
the medical literature because there is no literature on magical disruption of the brain that
causes death and that doesn't exist. In addition to looking though my own textbooks,
looking through the two database searches I did, I was so taken aback by all this that I . . .
[asked] my colleagues if they have heard of this idea; and honestly, most of the time, the
response that I got was laughter."
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Dr. Yu-Tze Ng, the Chief of Neurology at Children's Hospital in San Antonio and
a tenured pediatrics professor at Baylor College of Medicine in Houston, also testified for
Buchhorn. Dr. Ng testified he does not like using the term "depolarization" because that
is something that happens normally. Dr. Ng also said he believed Dr. Mitchell was trying
to imply a sudden cessation of the whole brain. Dr. Ng stated:
"[W]hether it's from depolarization, which is some function, [a sudden cessation of the
whole brain], is just not possible without any evidence that there was some brain injury
that would persist short of completely beheading the patient or cutting, disconnecting the
upper brain stem, the medulla and all those brain parts to the spinal cord. I just can't
fathom how a patient would have died with no evidence whatsoever [of brain injury]."
Dr. Ng testified that Dr. Mitchell's theory diverged from medical science. Dr. Ng
said the articles Dr. Mitchell provided to support his theory actually contradicted Dr.
Mitchell's claims. Dr. Ng stated that he did not know how O.O. died but, based on the
evidence, O.O. did not die from a brain injury.
Dr. Wigren also testified at the posttrial hearing. He stated he did not know Dr.
Mitchell would present his theory of depolarization or that the theory would be such a
pivotal part of the argument in this case. Dr. Wigren said that in all his communications
with Buchhorn's trial counsel, including during the trial, they never asked him to address
Dr. Mitchell's opinion.
Dr. Wigren testified that if trial counsel had asked about the viability of Dr.
Mitchell's theory, he would have written a supplemental report and recommended trial
counsel consult with a neurologist. He also stated he had never heard this theory
expressed and had been unable to find any authoritative medical literature to support it.
Dr. Mitchell testified for the State at the posttrial hearing. He admitted O.O.'s case
was the exception, rather than the rule, because most head trauma cases included
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observable injury. When asked about the statistics on which he relied to support his
theory, Dr. Mitchell testified he was thinking of the transfer of energy to the brain which
occurs in all brain injuries. He admitted he would probably change how he used the word
statistics in his testimony. He also testified that his use of the word statistics was him
trying to convey a likelihood, not to suggest he had actual statistical information, and that
"it was a poor choice of words in retrospect."
Dr. Mitchell testified he had observed two cases in which immediate death
occurred after a concussive injury to the brain stem, and, in both cases, neither victim had
any sign of significant brain injury. He testified one of those cases occurred in 1980,
during his residency in North Carolina, and the other occurred in the early 1980s or 1990s
in New York. He had no records on these cases and had made no effort to find them. Dr.
Mitchell testified that he had done about 12,000 autopsies during his nearly 40-year
career. He admitted on cross-examination that 2 cases out of 12,000 is "a very small
number."
When asked about the posttrial materials he supplied and relied on to support his
theory of depolarization, Dr. Mitchell admitted his materials did not provide any studies
of people who died after suffering blunt force trauma in which there was no evidence of
injury to the brain. He acknowledged that much of the literature he had provided dealt
with general neurological principles and not the exact issue of instantaneous death from
concussive force.
Alice Craig, a professor at the University of Kansas School of Law and attorney at
the Paul E. Wilson Project for Innocence & Post-Conviction Remedies, also testified for
Buchhorn at the posttrial hearing. She testified that for trial counsel to fully understand
and challenge evidence, he or she must independently research the issues and consult
with experts if necessary. Craig also stated that given the complicated nature of cases
involving a brain injury, counsel would at least need to hire a forensic pathologist and
7
may also need to hire a radiologist, biomechanical engineer, neuropathologist, or
neurologist.
Craig testified she believed Buchhorn's trial counsel failed to provide objectively
reasonable representation. Craig contended counsel violated the professional standard of
care by failing to file a pretrial Daubert motion to exclude Dr. Mitchell's testimony and
discover the scientific and factual basis for his depolarization theory. She testified Dr.
Mitchell's preliminary hearing testimony raised enough questions about the science
behind O.O.'s cause of death and the basis for Dr. Mitchell's theory that counsel should
have filed a Daubert motion to challenge the validity of his theory.
Craig also testified that Buchhorn's counsel could not effectively cross-examine
Dr. Mitchell or exclude his testimony without the right experts. She said counsel did not
adequately challenge the State's theory of O.O.'s cause of death. Craig acknowledged that
counsel hired Dr. Wigren, a forensic pathologist, but still believed a neurologist was
necessary to testify in this case. Craig additionally criticized counsel's failure to ask Dr.
Wigren specifically about Dr. Mitchell's theory that the blunt force injury interrupted and
depolarized O.O.'s nerves.
Both Morrison and Dersch testified at the hearing. Morrison admitted Dr.
Mitchell's testimony was "very important" and agreed they needed to challenge his
depolarization theory. Yet, Buchhorn's trial counsel did not independently research or
investigate Dr. Mitchell's depolarization theory. Instead, they relied on Dr. Wigren to
define the medical issues they needed to address.
Morrison admitted they did not consult with or talk to any experts other than Dr.
Wigren. Morrison testified he was "comfortable that [Dr.] Wigren could handle it," and
"we took our direction from him." On the other hand, Morrison testified both he and his
8
co-counsel were frustrated with how difficult it was to get ahold of Dr. Wigren and how
busy he was. Neither Morrison nor Dersch had ever worked with Dr. Wigren before.
Morrison admitted he never considered filing a Daubert motion and, in fact, both
he and Dersch admitted they had never filed a Daubert motion in any of their cases.
Morrison testified they relied on Dr. Wigren to tell them if they needed to file a Daubert
motion. When asked if he regretted not filing a Daubert motion, Morrison said, "Yes."
Dersch testified that, in hindsight, filing a Daubert motion would have been a good idea.
She also testified they made no strategic decision to forgo filing a Daubert motion but,
instead, she never considered it. She said it never came up in their discussions.
When asked about Dr. Wigren's testimony that trial counsel never asked him to
address Dr. Mitchell's theory, Morrison stated that he had asked Dr. Wigren about Dr.
Mitchell's theory, but Dr. Wigren never responded and instead focused on the age of
O.O.'s skull fracture. Morrison admitted they never asked Dr. Wigren for something they
could use to cross-examine Dr. Mitchell about his theory on cause of death.
The first time trial counsel met Dr. Wigren was when he flew in on the Sunday
after trial had begun, the night before he testified. During this meeting, Dr. Wigren asked
counsel if they had hired a biomechanical engineer to testify. Morrison responded by
saying, "'It's a little late, Doc.'" Morrison and Dersch both testified the first time Dr.
Wigren discussed the reliability or general acceptability of Dr. Mitchell's theory was
during this meeting. They said he told them he did not believe Dr. Mitchell's theory,
basically calling it nonsense. Despite this knowledge, they never asked Dr. Wigren to
express any opinions on Dr. Mitchell's depolarization theory at trial. Morrison's
explanation for not doing so was that he was uncertain what Dr. Wigren might say.
Besides failing to challenge Dr. Mitchell's depolarization theory, with both a
Daubert motion and expert testimony, Buchhorn also pointed out her trial counsel failed
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to elicit explanatory testimony from Dr. Wigren at trial, after his responses to the State's
cross-examination suggested he agreed with Dr. Mitchell's depolarization theory.
Buchhorn's new counsel pointed to the following exchange between Dr. Wigren and the
State:
"Q. [State's attorney C.J. Reig:] Would you agree that a child could suffer physical
violence to their head that would change the electroconductivity to the brain and
they would stop breathing? Yes or no.
"A. [Dr. Wigren:] Yes, with an explanation.
"Q So—thank you. The answer is yes.
"A. With explanation.
"Q. That's what—your client can come and ask questions if they want to.
"MS. RIEG: Do you agree, Judge?
"THE COURT: Well, I was going to tell the doctor that there can be a redirect to
explain or expand on that."
Trial counsel's redirect of Dr. Wigren was very brief and did not address this issue. Thus,
Dr. Wigren was never allowed to give the jury his explanation of the qualification to his
answer.
Buchhorn's new counsel asked Dr. Wigren to provide this explanation at the
evidentiary hearing on their posttrial motions. Dr. Wigren testified that while physical
violence can change the electroconductivity of the brain and stop breathing, the impact in
those situations is more violent than a skull fracture and this "very violent impact" would
cause perceptible injury to the brain. The example he provided of this phenomenon was
"crushing head injuries like in an occupational accident."
The trial court denied Buchhorn's motion for a new trial. It found Buchhorn's
counsel was not ineffective for failing to request a Daubert hearing because the court
held it would have denied a Daubert motion to exclude Dr. Mitchell's testimony. The
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court found Buchhorn's counsel was not ineffective in hiring Dr. Wigren because the
court found counsel appropriately relied on Dr. Wigren's expertise and knowledge. The
court noted Dr. Wigren's theory on cause of death directly contradicted the State's theory.
The court discounted Craig's testimony because the court found it depended on the
incorrect assumption that trial counsel would be able to exclude Dr. Mitchell's testimony.
The court found Craig improperly based her testimony on hindsight. The court also relied
heavily upon the considerable expertise of trial counsel. The court pointed out they were
very prepared, appeared to have formulated a potentially winning strategy, and appeared
to have spent considerable time with their client. The court rejected Buchhorn's other
claims and sentenced her to 123 months' imprisonment.
ANALYSIS
On appeal, Buchhorn argues the trial court abused its discretion when it denied her
posttrial motion because (1) Dr. Mitchell's testimony was unreliable and should have
been excluded under K.S.A. 60-456(b) and (2) Buchhorn's trial counsel was ineffective
and prejudiced her right to a fair trial. Buchhorn has raised other grounds for reversing
her conviction, which we need not address because we reverse her conviction for
ineffective assistance of trial counsel.
The trial court may grant a new trial when it is "required in the interest of justice."
K.S.A 2020 Supp. 22-3501(1). We review this decision for an abuse of discretion.
Generally, a trial court abuses its discretion when its decision is found to be arbitrary,
fanciful, or unreasonable, or based on an error of fact or law. State v. Ashley, 306 Kan.
642, 650, 396 P.3d 92 (2017). The decision must be such that no reasonable person
would have arrived at the same outcome. State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935(2015).
11
Buchhorn failed to preserve her objections to the admissibility of Dr. Mitchell's
testimony.
Buchhorn challenges the admissibility of Dr. Mitchell's testimony under K.S.A.
60-456, which codifies the test for admissibility of expert opinion set forth in Daubert,
509 U.S. 579. Daubert established a "gatekeeper" function for trial courts, which requires
the court to assess the reasoning and methodology underlying a proposed expert's opinion
and determine whether it is scientifically valid and applicable to the particular set of facts
involved in the case. The purpose of the Daubert analysis is to "'determine at the outset
. . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will
assist the trier of fact to understand or determine a fact in issue.'" Goebel v. Denver and
Rio Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000) (citing Daubert, 509
U.S. at 592). In this respect, Buchhorn argues the district court's decision to admit Dr.
Mitchell's testimony at trial created a freestanding error of such gravity that it requires
reversal of her conviction.
The problem with Buchhorn's challenge is it is untimely. Buchhorn never objected
to the admissibility of Dr. Mitchell's opinions, including his methodology and
conclusions, until her posttrial motion. The purpose of the gatekeeper function in K.S.A.
2020 Supp. 60-456 and under Daubert is lost once the evidence at issue has passed
through the gate. Indeed, K.S.A. 2020 Supp. 60-457(b) recognizes the importance of
timing in this area by allowing the court to hold a pretrial hearing to determine whether a
witness qualifies as an expert and whether the witness' testimony satisfies the
requirements of K.S.A. 2020 Supp. 60-456(b). Buchhorn's challenge to Dr. Mitchell's
testimony falls within the provisions of K.S.A. 2020 Supp. 60-456(b), yet she did not
object to Dr. Mitchell's testimony before or during the trial.
Until the Kansas Legislature codified the Daubert test in K.S.A. 2014 Supp. 60-
456 through K.S.A. 2014 Supp. 60-458, Kansas courts applied the Frye test to the
12
admission of scientific expert testimony. In re Care & Treatment of Jimenez, No,
115,297, 2017 WL 1035505, at *3 (Kan. App. 2017) (unpublished opinion). Kansas
courts routinely rejected challenges to scientific evidence under Frye v. United States,
293 F. 1013 (D.C. Cir. 1923) absent a timely and specific objection at trial. State v.
Ordway, 261 Kan. 776, 801, 934 P.2d 94 (1997); Ohlmeier v. Jones, 51 Kan. App. 2d
1014, 1019, 360 P.3d 447 (2015). Further, K.S.A. 60-404 prohibits setting aside a verdict
or reversing a decision because of the erroneous admission of evidence without a timely
and specific objection.
The State appropriately notes our Supreme Court strictly adheres to the
contemporaneous objection rule. See, e.g., State v. Solis, 305 Kan. 55, 62-63, 378 P.3d
532 (2016). It also correctly points out the purpose of this rule "is not fulfilled when the
objection is first raised after the trial has been completed." State v. Cook, 286 Kan. 1098,
1109, 191 P.3d 294 (2008). Certainly, the purpose of the Daubert test is not fulfilled
when the objection is first raised well after the jury has already heard and considered the
allegedly suspect testimony in rendering its verdict. We find Buchhorn has failed to
properly preserve her objection to the admissibility of Dr. Mitchell's testimony and
decline to overturn the trial court's denial of Buchhorn's motion on that basis.
Buchhorn's trial counsel was ineffective and prejudiced her right to a fair trial.
The Sixth Amendment to the United States Constitution guarantees an accused the
right to have assistance of counsel for his or her defense. Miller v. State, 298 Kan. 921,
929, 318 P.3d 155 (2014). The Fourteenth Amendment to the United States Constitution
applies this right to state proceedings. The guarantee includes not only the presence of
counsel but counsel's effective assistance as well. 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]). The purpose of the effective assistance guarantee
13
is to ensure the accused receives a fair trial. State v. Galaviz, 296 Kan. 168, 174, 291 P.3d
62 (2012).
An allegation of ineffective assistance of counsel presents both questions of fact
and law. When the trial court conducts a full evidentiary hearing on the claim, we must
determine whether the court's findings are supported by substantial competent evidence
and whether the court's factual findings support their legal conclusions. The standard of
review when evaluating the court's legal conclusions is de novo. Fuller v. State, 303 Kan.
478, 485, 363 P.3d 373 (2015).
The Kansas Supreme Court recently recounted the two-prong test for analyzing
ineffective assistance of counsel claims in Khalil-Alsalaami v. State, 313 Kan. 472, 485-
86, 486 P.3d 1216 (2021):
"'Strickland established a two-prong test for determining if a criminal
defendant's Sixth Amendment right to effective assistance of counsel has
been violated by an attorney's performance. 466 U.S. at 687-96. Kansas
courts adopted this test in Chamberlain [v. State], 236 Kan. [650,] 656-
57[, 694 P.2d 468 (1985)]. Under the first prong, a defendant must
demonstrate that counsel's performance was deficient. 236 Kan. at 656. If
so, the court moves to the second prong and determines whether there is
a reasonable probability that, without counsel's unprofessional errors, the
result would have been different. Strickland, 466 U.S. at 694.' State v.
Betancourt, 301 Kan. 282, 306, 342 P.3d 916 (2015).
"To establish deficient performance under the first prong, 'the defendant must
show that counsel's representation fell below an objective standard of reasonableness.'
Strickland, 466 U.S. at 688. Courts must remain mindful that their scrutiny of an
attorney's past performance is highly deferential and viewed contextually, free from the
distorting effects of hindsight:
"'Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to second-guess
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counsel's assistance after conviction or adverse sentence, and it is all too
easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. 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. Because of
the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy." There are countless ways to
provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.
[Citations omitted.]' 466 U.S. at 689.
"Under Strickland's second prong, defendants must show the deficient
performance of counsel was prejudicial. To do so, defendant must establish with
reasonable probability that the deficient performance affected the outcome of the
proceedings, based on the totality of the evidence. Edgar v. State, 294 Kan. 828, 838, 283
P.3d 152 (2012). '"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."' 294 Kan. at 838."
Although the above principles should guide our decision, they are not mechanical
rules. In fact, the ultimate focus must be on the defendant's right to fundamental fairness
in the proceeding. "In every case the court should be concerned with whether, despite the
strong presumption of reliability, the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process that our system counts on to produce
just results." Strickland, 466 U.S. at 696. The Kansas Supreme Court has long recognized
that a criminal defendant "is entitled to a fair trial but not a perfect one." State v. Cruz,
297 Kan. 1048, 1075, 307 P.3d 199 (2013)
15
1. Buchhorn's trial counsel was deficient in failing to investigate Dr. Mitchell's
depolarization theory.
Buchhorn's lawyers argue that her trial counsel's handling of Dr. Mitchell's
testimony and the overall matter of expert testimony on the cause of death fell below the
constitutional standard of adequate representation and deprived her of a fair trial. In other
words, had the trial lawyers sufficiently prepared, they could have excluded Dr.
Mitchell's testimony altogether or so undermined its credibility in the eyes of the jurors
that the jury would have been left with at least a reasonable doubt about Buchhorn's guilt.
We agree and reverse on this basis.
Under the circumstances, Buchhorn's trial counsel's conduct was objectively
unreasonable. There is no question Dr. Mitchell's depolarization theory was central to the
State's case. It was the linchpin that tied Buchhorn to O.O.'s death. This observation is not
hindsight; it stems from information counsel knew before trial. Yet Buchhorn's counsel
admit they did not independently research or investigate his theory.
If Buchhorn's counsel had inquired into Dr. Mitchell's theory at the preliminary
hearing, studied it on their own, or properly explored it with their expert, they most likely
would have discovered evidence to assist in a more effective cross-examination of Dr.
Mitchell at trial and to better prepare Dr. Wigren to address Dr. Mitchell's opinions.
Further, any of these investigative options could have prompted them to realize they
needed to engage additional experts to attack Dr. Mitchell's theory or at least ensure Dr.
Wigren addressed it at trial. For instance, if they had questioned Dr. Mitchell about the
scientific basis for his theory, they would most likely have learned the "statistics" on
which he relied were flimsy and his medical literature provided tenuous support, at best.
This evidence would have been powerful on cross-examination, particularly since the
matter hinged on the credibility of both sides' expert theories.
16
Although counsel's "[s]trategic choices based on a thorough investigation of the
law and facts are virtually unchallengeable," when determining an ineffective assistance
of counsel claim, uninformed decisions are not similarly protected. Flynn v. State, 281
Kan. 1154, Syl. ¶ 5, 136 P.3d 909 (2006); Mullins v. State, 30 Kan. App. 2d 711, 716-17,
46 P.3d 1222 (2002). Here, trial counsel lacked sufficient information to make an
informed decision about how to address Dr. Mitchell's depolarization theory. Their
failure to investigate this theory at or after the preliminary hearing, or explore it with their
medical expert, bars any characterization of their deficiencies as "trial strategy."
Professor Craig testified, "To be able to say that the choices counsel made at trial
were strategic, they have to be based on a thorough investigation. And part of that
thorough investigation would be researching the issue, developing your experts, making
sure your experts had all of the information that they might need." Her point is well
taken. Buchhorn's counsel did not investigate Dr. Mitchell's theory on their own, with Dr.
Mitchell (through examination at the preliminary hearing or trial), with Dr. Wigren, or
with any other expert or consultant. They did not develop any expert testimony to address
this theory, nor did they procure any information to provide Dr. Wigren about the factual
or scientific basis for Dr. Mitchell's theory or on which to cross-examine Dr. Mitchell. It
cannot be said that Buchhorn's counsel made an informed decision not to present
testimony that was never discussed or evidence they never sought.
Buchhorn's trial counsel had never met Dr. Wigren or worked with him in the past.
They admitted he was difficult to get ahold of. While they claim they "took direction
from" him on medical issues, Dr. Wigren testified they never brought up depolarization
with him. Trial counsel claim they asked him about it but admit he did not answer their
questions and, instead, discussed an alternate theory. If their expert was unavailable or
evasive, it was up to counsel to get the necessary answers or replace or supplement that
expert. Morrison's admission that he did not ask Dr. Wigren about depolarization at trial
because he did not know what he would say is telling.
17
At best, counsel relied exclusively upon an expert with whom they had no
relationship, was difficult to get ahold of, and evaded answering questions about the
State's key theory of the case. At worst, counsel did not address this key theory with Dr.
Wigren until trial had begun and, even then, did not ask him to express his opinions on
this theory once he told them what those opinions were—and most particularly after the
State opened the door in cross-examining Dr. Wigren.
The trial court erred in finding it was reasonable for Buchhorn's counsel to rely
upon Dr. Wigren to define the medical issues they needed to address. The ultimate
control of a case rests with the lawyers and not the expert witnesses. It is incumbent upon
the lawyers to define clearly for the experts the scope of their assigned tasks. Here, the
communication channel broke down. The lawyers expected Dr. Wigren to tell them
everything they needed to know about O.O.'s death and Dr. Mitchell's theory on
causation. Dr. Wigren, however, apparently understood his engagement far more
narrowly and offered an expert opinion on the skull fracture and possible causes of death
rather than a critique of Dr. Mitchell's theory.
There is a difference between relying on an expert and scapegoating one. Here,
counsel blamed Dr. Wigren for not telling them (1) Dr. Mitchell's depolarization theory
had no medical basis or support in the medical community, (2) they needed to hire other
experts to address depolarization, and (3) they should file a Daubert motion to exclude
Dr. Mitchell's theory. Yet the record reveals they did not explore these issues with Dr.
Wigren. It was unreasonable for counsel to expect Dr. Wigren to provide this guidance
when they failed to request it.
Just like counsel cannot be said to have made an informed decision when they
lacked the information needed to make the decision, they cannot be said to have relied on
an expert for advice they never sought (or, according to them, did not receive when
requested). Even if we accept the concept that counsel's reliance on their medical expert
18
to take the lead and suggest legal strategy was reasonable, counsel still cannot shirk their
professional responsibilities onto an unfamiliar, retained expert without giving that expert
the necessary tools to shoulder those responsibilities. Dr. Wigren testified he did not
realize depolarization was a significant issue in the case, and he was not given the
preliminary hearing transcript where Dr. Mitchell discussed it. It is difficult to imagine
when Dr. Wigren was supposed to provide this pretrial advice when counsel admit the
first time they substantively discussed depolarization with him was during their mid-trial
meeting.
Both parties cite Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008), in support of
their respective positions, and we agree it is pertinent. In Wilson, the court considered
whether "trial counsel was ineffective because of his poor investigation in preparation for
the sentencing phase and his failure to put on relevant mitigating evidence at trial." 536
F.3d at 1083. While the trial counsel in Wilson interviewed witnesses to testify as to
Wilson's character, trial counsel failed to interview Wilson's family members and
therefore failed to gather a complete narrative of Wilson's life. In its analysis, the court
determined "the question is not whether counsel did something; counsel must conduct a
full investigation and pursue reasonable leads when they become evident." 536 F.3d at
1084.
Wilson recognized that "in many situations, the expert will know better than
counsel what evidence is pertinent to mental health diagnoses and will be more equipped
to determine what avenues of investigation are likely to result in fruitful information."
536 F.3d at 1089. But Wilson took this further to find that while trial counsel should be
able to rely on their expert to a degree, trial counsel "may not simply hire an expert and
then abandon all further responsibility [to investigate]." 536 F.3d at 1089. Ultimately, the
court in Wilson found that trial counsel's preparation fell below acceptable standards and
was therefore deficient. 536 F.3d at 1089.
19
Buchhorn's trial counsel was similarly deficient. Once they hired Dr. Wigren, their
duty to investigate the State's main theory did not end there. They failed to utilize his
expertise to address depolarization, either with them or the jury. They also pursued no
information about the factual or medical basis for Dr. Mitchell's theory. Instead, they
simply hired Dr. Wigren without providing him the necessary information and guidance
to make the decisions on which they were apparently relying on him to make.
Buchhorn also relies on Robinson v. State, 56 Kan. App. 2d 211, 428 P.3d 225(2018), to argue her trial counsel could not blame Dr. Wigren for their failure to fully
investigate Dr. Mitchell's theory. In Robinson, Frank Robinson was convicted of
aggravated arson and felony murder based on the testimony of the government's fire
investigator, Agent Douglas Monty. The trial court found Robinson's trial counsel was
ineffective for failing to properly investigate "a most important aspect of this case—fire
cause and origin expert opinions" and for failing to present sufficient expert testimony to
refute claims made by the State's fire investigators. 56 Kan. App. 2d at 227. Robinson's
attorney did not hire an arson expert to testify at trial, and he only consulted with an
"'arson investigation-type expert, cause and origin person'" less than two weeks before
trial. 56 Kan. App. 2d at 216. After that person proved unhelpful, Robinson's attorney
conducted no further investigation and then did not talk to another expert.
In affirming the trial court's decision, this court noted the importance of
thoroughly investigating both the facts and expert opinions to prepare a proper defense.
See 56 Kan. App. 2d at 227-30. As in Robinson, Buchhorn's counsel did not properly
investigate the central issue in her case, which was Dr. Mitchell's theory on cause of
death. And, also like Robinson, if Buchhorn's counsel had properly investigated Dr.
Mitchell's expert opinions, they would have been able to undermine those opinions far
more effectively. This court's description of Robinson's counsel's failings is just as apt
here. By failing to independently investigate Dr. Mitchell's theory and by failing to
marshal expert evidence to directly challenge that theory, Buchhorn's counsel entered
20
"battle with the State unarmed and unequipped with the expertise [Buchhorn] needed for
a defense." 56 Kan. App. 2d at 227.
As in Robinson, Buchhorn's counsel may have acted reasonably when they first
hired Dr. Wigren to contest the timing of O.O.'s skull fracture. Still, just as the expert in
Robinson was not qualified to refute the most important issue of the case, Dr. Wigren was
not a neurological expert who could fully refute Dr. Mitchell's theory of instant death
caused by the depolarization of nerves from blunt force trauma. And, like in Robinson,
Buchhorn's counsel failed to make a comprehensive investigation of Dr. Mitchell's
medical opinions, thus failing to equip Buchhorn with what she needed for a proper
defense. It was not a reasonable strategy that led counsel to decline to investigate Dr.
Mitchell's theory, but, rather, lack of thoroughness and preparation. See Kenley v.
Armontrout, 937 F.2d 1298, 1308 (8th Cir. 1991).
2. Buchhorn's trial counsel was deficient in failing to present responsive expert
testimony at trial.
Buchhorn also claims her counsel was ineffective for failing to directly challenge
Dr. Mitchell's depolarization theory with expert testimony. She presented examples of
such testimony at the posttrial hearing, in the form of Dr. Kessler and Dr. Ng. These
highly qualified medical professionals testified that Dr. Mitchell's depolarization theory
had no support in science or the medical community, and that the facts of the case did not
support his theory on O.O.'s cause of death. Such evidence would have severely
undermined Dr. Mitchell's credibility and the State's theory of the case.
In deciding Buchhorn's counsel was not ineffective for failing to engage such
experts, the trial court relied on the considerable experience of trial counsel. She found it
reasonable for counsel to rely upon Dr. Wigren to tell them if they needed additional
experts. While it is true that the decision whether to call a particular witness rests within
21
the sound discretion of trial counsel, this decision must be an "informed, tactical" one.
United States v. Holder, 410 F.3d 651, 655 (10th Cir. 2005). Here Buchhorn's trial
counsel failed to provide a "valid strategic reason" for simply relying on Dr. Wigren to
tell them whether they needed more experts. See Robinson, 56 Kan. App. 2d at 228. As
explained above, counsel's decision to blindly rely on Dr. Wigren was uninformed and
objectively unreasonable.
Professor Craig testified that Buchhorn's counsel could not effectively cross-
examine Dr. Mitchell without proper experts. She also testified trial counsel did not
adequately challenge the State's theory of O.O.'s cause of death. While she acknowledged
that counsel hired Dr. Wigren, a forensic pathologist, she still believed a neurologist was
necessary to testify in this case. Indeed, even Dr. Mitchell admitted in the preliminary
hearing that a neuropathologist may disagree with some of his medical findings.
Trial counsel admitted the only time they specifically discussed other experts with
Dr. Wigren was when he flew in on the Sunday after trial had begun, the night before he
testified. While counsel fault Dr. Wigren for not bringing the need for other experts to
their attention earlier, they fail to acknowledge their responsibility to directly address this
issue with him. It was counsel's duty to ensure their expert addressed all necessary issues,
particularly since they conducted no independent investigation on their own. Rather than
making an informed decision on the expert testimony required to counter Dr. Mitchell's
theory, counsel simply abrogated their responsibility to Dr. Wigren, a witness with whom
they had never worked, had never met, and who they complained was difficult to get
ahold of.
Under Wilson, once counsel knew Dr. Mitchell's theory on cause of death from the
preliminary hearing, they had an obligation to properly investigate that theory. Further,
under Robinson, Buchhorn's counsel should have hired an expert who could properly
refute the most important issue of the case—Dr. Mitchell's theory on depolarization of
22
nerves. Buchhorn's counsel's performance fell "below an objective standard of
reasonableness, considering all the circumstances." See Bledsoe v. State, 283 Kan. 81, 90,
150 P.3d 868 (2007). Trial counsel's failure to use expert testimony to challenge the
validity of Dr. Mitchell's theory and to explain how Dr. Mitchell's theory was false or not
credible was objectively unreasonable.
Using the Strickland analysis, Buchhorn must establish her counsel's actions were
deficient under the totality of the circumstances. Bledsoe, 283 Kan. at 90; see Strickland,
466 U.S. at 687. Here, that burden is met.
3. Trial counsel's deficient performance prejudiced Buchhorn's right to a fair trial.
As we have said, under the Strickland test for ineffective assistance of counsel,
Buchhorn must establish that her counsel's objectively unreasonable performance caused
her material prejudice. To establish prejudice, Buchhorn must show a reasonable
probability that her counsel's deficient performance affected the outcome of the
proceedings, based on the totality of the evidence. A reasonable probability here is a
probability sufficient to undermine confidence in the outcome. Khalil-Alsalaami, 313
Kan. at 485.
As in Mullins, 30 Kan. App. 2d at 717, the trial court did not analyze the prejudice
prong of the Strickland test. Instead, its analysis stopped after finding counsel was not
ineffective. We analyze this prong based on the facts in the record before us, just as this
court did in Mullins.
There was no physical evidence tying Buchhorn to the death, which meant the trial
turned on credibility between the prosecution and defense witnesses. The State built its
case on the expert testimony given by Dr. Mitchell. This makes an investigation into Dr.
Mitchell's theory on cause of death the most important aspect of Buchhorn's defense.
23
Buchhorn's counsel had a duty to investigate Dr. Mitchell's theory to give her the most
effective defense. See McHenry v. State, 39 Kan. App. 2d 117, 123, 177 P.3d 981 (2008).
Their failure to investigate the State's main theory meant they were unprepared to fulfill
that fundamental constitutional obligation.
In Mullins, this court found trial attorneys' failure to consult or procure an expert
was objectively unreasonable because there was no showing of strategic reasons for that
failure. Mullins also found that "[h]ad trial counsel procured the services of an available
expert . . . the jury would have been presented with relatively strong evidence to
potentially undermine the allegations . . . ." 30 Kan. App. 2d at 717. This court also held
that "because trial counsel failed to present . . . such available expert testimony, the jury
heard only the victim's unchallenged allegations." 30 Kan. App. 2d at 718.
Just like in Mullins, Buchhorn's counsel could have undermined Dr. Mitchell's
theory with information they could have discovered at the preliminary hearing, from their
own independent investigation, and from properly managed experts (including Dr.
Wigren). If counsel had directly challenged Dr. Mitchell's theory, such as by presenting
testimony from Dr. Kessler or Dr. Ng (or both), or if Dr. Wigren had directly addressed
it, there is a reasonable probability the jury would have found Buchhorn not guilty. The
State's entire theory of guilt relied on Dr. Mitchell's opinion that the death was
immediate, yet trial counsel did not directly challenge that theory.
Trial counsel's failure to independently investigate Dr. Mitchell's theory also left
them unprepared to challenge the credibility of that theory on cross-examination. "'While
a criminal trial is not a game in which the participants are expected to enter the ring with
a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.'" United
States v. Cronic, 466 U.S. 648, 656, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Buchhorn
could have entered the trial armed with direct evidence to impeach Dr. Mitchell's theory
on the cause of death and the State's entire theory of guilt. Instead, trial counsel was
24
unprepared to test the validity of Dr. Mitchell's theory, despite counsel's admission that
Dr. Mitchell's opinions were key to the State's case.
When setting forth the very test we apply today, the United States Supreme Court
pointed out, "a fair trial is one in which evidence subject to adversarial testing is
presented to an impartial tribunal for resolution of issues defined in advance of the
proceeding." Strickland, 466 U.S. at 685. Dr. Mitchell's depolarization theory was not
subjected to effective or even fully formed adversarial testing. If the jury did not believe
that theory, there is nothing left in the State's case against Buchhorn, just like in
Robinson. It was Dr. Mitchell's opinion that O.O.'s death was instantaneous that tied the
death to Buchhorn, as the last person who admitted having contact with O.O. If that
opinion was impeached, a finding of guilt becomes highly questionable. See Robinson,
56 Kan. App. 2d at 229.
Based on the totality of the circumstances, we are not confident the outcome
would have remained unchanged if the jury had been apprised of all the information
Buchhorn's counsel could have presented to impeach Dr. Mitchell's opinions.
Trial court remarks during voir dire
Since the errors we have identified above prejudiced Buchhorn, we need not
consider any of her other allegations. See State v. Stinson, 43 Kan. App. 2d 468, 469, 227
P.3d 11 (2010) (finding that because court was reversing and remanding for new trial,
remaining argument on ineffective assistance of counsel was moot). However, there is
one matter we feel compelled to address, even though we do not base our decision upon
it.
25
Buchhorn also took issue in her posttrial motion with the trial court's remarks at
the close of jury orientation. She reprises those concerns on appeal. The court told the
jury panel:
"Okay. Anybody ever been at Thanksgiving dinner and your crotchety old uncle
says, 'I just don't understand why the defendants have all the rights and victims have
none?' Anybody ever heard anybody made those statements? I see people smiling and
won't admit it, but they have heard it. Anybody know why we are set up that way? Well,
because the people who wrote our Constitution were criminals. They had been charged
with treason; and if they had been found guilty, they would have been hanged to death,
and they wrote our Constitution in a way that they would have wanted to be protected
when they went to trial."
Buchhorn's trial counsel did not object to these remarks. Her new counsel argued these
remarks were factually inaccurate and constituted judicial misconduct, denying Buchhorn
a fair trial. The district court did not address this argument in its order.
Frankly, we fail to see the purpose of these remarks, which neither assist the
prospective jurors in understanding what will be expected of them if they are chosen to
serve nor impart to them some legal principle applicable to the criminal justice process.
And Buchhorn is absolutely correct that such remarks vitiate the importance of the
constitutional protections afforded an accused (and, indeed, all citizens). At the outset of
the trial, the district court told the prospective jurors that Buchhorn, as a criminal
defendant, had all kinds of rights and O.O., the victim, had none. We see no productive
value in unfavorably contrasting persons accused of crimes with victims of crimes,
particularly since it risks providing the jury an improper analytical framework to process
the evidence admitted at trial. In short, the trial judge's remarks were imprudent and
should not have been made.
26
In closing, we hearken back to the sage observations made by the Robinson court.
56 Kan. App. 2d at 212. It is not an easy decision to grant a new trial to someone who has
been convicted of killing another human being. But more important than the severity of
the crime is the fundamental principle of American law—all accused must receive a fair
trial, even those accused of killing a child. That legal principle has guided our decision to
order a new trial for Carrody M. Buchhorn.
Reversed and remanded.
27