Date: 02-02-2024

Case Style:

State of Kansas v. Cardell Turner

Case Number: 123,097

Judge: ROSEN, J

Court: SUPREME COURT OF THE STATE OF KANSAS

Plaintiff's Attorney: Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee

Defendant's Attorney: Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant, and Cardell Turner, appellant pro se, was on the supplemental brief.

Description: On August 14, 2018, Alberto Alfaro and Enrique Umana Somoza were
outside a home in Wichita trying to jump start Alfaro's truck. Cardell Turner pulled up
beside them in his car, pointed a gun in the direction of Somoza and Alfaro, and pulled
the trigger. The gun did not fire. Turner drove away, and no one was harmed. The State
charged Turner with two counts of attempted first-degree murder and one count of
conspiracy to commit murder in relation to this incident.
Prior to trial, Turner moved for new appointed counsel, alleging dissatisfaction
with his counsel and a complete breakdown in communication. After two hearings, the
district court denied the motion, reasoning that much of Turner's dissatisfaction came
from Turner's unreasonable expectations and misunderstanding of the law. The case
proceeded.
3
Turner testified in his own defense at trial. He told the jury he worked for a drug
cartel in California and had been in Wichita to collect money from Alfaro and a man who
worked locally for the cartel named Rogelio Velasquez. Turner collected the money from
Velasquez upon his arrival in early August and then set his sights on Alfaro. Turner and
Alfaro met in Topeka, but Alfaro did not have the money, so the two planned to meet
again in a few days. Alfaro did not show up at the next scheduled meeting, so Velasquez
told Turner where he might be able to find Alfaro. Velasquez also gave Turner a gun.
On August 14, Turner located Alfaro and Somozo trying to jump start a truck.
Turner was on the phone with Velasquez at this time and reported the scene. Velasquez
told Turner "when their heads are under [the hood], go do what you're going to do."
Turner testified his plan was to "catch [Alfaro] in the low compromised . . . so [he could]
approach him like, hey, what's up, man, like you got the money, you ready." Turner
brought the loaded gun from Velasquez "in case something [went] down" but kept it in
his lap.
Turner approached the two men in his car with his window rolled down and said,
"'what's up." Turner testified Alfaro looked over his shoulder at Turner, turned away, and
then spun around holding a gun. Turner then picked up his own gun and pointed it in the
direction of Alfaro but "[could not] say it was pointed directly at him." Turner thought
Alfaro was going to shoot, so he pulled the trigger on his weapon. Turner's gun
malfunctioned and did not fire. Turner testified that the men began laughing at him and
he drove away.
As he drove, Turner called Velasquez and told him the gun had malfunctioned. He
also told Velasquez that Somoza had seen him and "might have to go too." Turner
explained this was his way of letting Velasquez know the men had seen him and that
4
whatever happened to the men afterwards was "over [his] pay rate." Turner maintained
throughout his testimony that he planned on getting the money from Alfaro and leaving,
that he never intended to shoot or kill Alfaro, and that he only pulled his gun out of his
lap and tried to fire because he thought Alfaro was going to shoot him.
Alfaro testified to a different version of events. He told the jury he never met with
Turner and had not seen or heard of him prior to the day he pulled up outside of his
house. Alfaro testified he had been trying to jump start his truck with a neighbor,
Somoza, when Turner pulled up with his window rolled down. Turner asked, "what's up,"
Alfaro answered, then Turner asked, "what's right," pulled a gun up, and pointed it at
Alfaro. Alfaro testified "what's right" means "bullets are about to start flying." Turner
pulled the trigger three or four times, but it did not fire. Alfaro testified he told Turner to
"get off" and Turner started screaming that he was going to kill Alfaro. Turner fiddled
with the gun in an apparent attempt to get it working. Alfaro testified that, at this point,
he thought it was a joke or a misunderstanding, so he started laughing. Turner drove off.
Alfaro jump started his truck and tried to follow Turner to "see what's up," but did not
catch up with him. Alfaro testified that neither he nor Somoza pointed a gun at Turner
during the encounter. Somoza testified to a corroborating version of events.
An FBI agent testified at trial. He revealed that Velasquez had been the subject of
a wiretap in August 2018 because he was suspected of engaging in drug distribution and
money laundering. On August 12 or 13, the FBI began intercepting calls between
Velasquez and Turner and learned that Turner was in Wichita looking for someone.
Through testimony from the agent and playback of the recorded calls, the jury learned
more about what was said on these calls. During the call that took place when Turner
located Alfaro jump starting the truck, Turner told Velasquez he could "do nothing"
because he was driving and there were too many people around. Turner said if he "had
somebody who was driving then [he] could hit it . . . or [he] could follow him." The
5
recording confirmed that Velasquez told Turner, when Alfaro's head is under the hood,
"do your thing" and then "jump on the motherfuckin' freeway." Turner again said there
were too many people out there. The men speculated that once the subject got his truck
started, he might go home. Velasquez told Turner that area was "kinda hot" and "too
open." Agents interpreted this call to indicate an act of violence was going to occur.
Two minutes later, the FBI intercepted the call between Turner and Velasquez
during which Turner said the gun had not worked and that he had been laughed at. About
a half hour later, the FBI intercepted another call between the two men. Turner told
Velasquez "that fat boy . . . might have to go too . . . cause he seen my face." Velasquez
responded "yeah, both of y'all, fuck it."
The jury convicted Turner of one count of attempted first-degree murder for
attempting to shoot Alfaro, one count of attempted second-degree murder for attempting
to shoot Somoza, and one count of conspiracy to commit murder for conspiring to kill
Alfaro. Following trial, Turner's counsel moved to withdraw because Turner claimed he
had been ineffective, which led to a conflict of interest. Turner filed pro se a "motion to
terminate ineffective counsel with request for new trial." The court granted the motion to
withdraw and appointed Turner new counsel. After a hearing, the district court found trial
counsel had not been ineffective and denied Turner's motion for new trial. Turner also
filed many motions requesting the trial judge recuse himself, two pro se and one through
counsel, and an affidavit in support. The court denied the motion submitted through
counsel and the supporting affidavit. It sentenced Turner to 653 months' imprisonment
for the attempted first-degree murder, 123 months' imprisonment for conspiracy to
commit first-degree murder, and 61 months' imprisonment for the attempted seconddegree murder, with the sentences to run consecutively.
6
Turner appealed his convictions and sentence. The Court of Appeals affirmed his
convictions but vacated his sentence and remanded for resentencing because the district
court miscalculated his criminal history score. State v. Turner, No. 123,097, 2022 WL
15527878, at *19 (Kan. App. 2022) (unpublished opinion). We granted Turner's petition
for review of the portion of the panel's opinion affirming his convictions and the State's
conditional cross-petition for review of the panel's holdings that a self-defense instruction
was factually warranted and that defense counsel rendered deficient performance.
Self-defense Instruction
Turner argued in the Court of Appeals the district court clearly erred when it did
not instruct the jury on the affirmative defense of self-defense. He claimed his testimony
that he pointed a gun at Alfaro only after Alfaro first pointed one at him from close range
permitted a rational fact-finder to find he had a subjective and objective fear for his life.
The State argued self-defense was unavailable to Turner under the initial aggressor
exception to self-defense in K.S.A. 2022 Supp. 21-5226(c) because even according to
Turner's version of events, Turner initially provoked Alfaro by driving up to him with a
gun in his lap and then did not exhaust every means of escape before turning to deadly
force.
The Court of Appeals held the instruction would have been legally and factually
appropriate, but the failure to offer it had not been clear error. The State challenges the
conclusion the instruction was factually appropriate, and Turner challenges the
conclusion it was not clear error when the court failed to offer the instruction.
We review claims of instructional errors in four steps.
"First, the court considers the reviewability of the issue from both jurisdiction
and preservation viewpoints, exercising an unlimited standard of review; next, the court
7
applies an unlimited review to determine whether the instruction was legally appropriate;
then, the court determines whether there was sufficient evidence, viewed in the light most
favorable to the defendant or the requesting party, that would have supported the
instruction; and, finally, if the district court erred, the appellate court must determine
whether the error was harmless, utilizing the test and degree of certainty set forth in State
v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011)." State v. Bentley, 317 Kan. 222, 242,
526 P.3d 1060 (2023).
If the defendant did not request the instruction below, "the reviewing court applies
the clear error standard . . . [and] determines whether it is firmly convinced that the jury
would have reached a different verdict had the instruction error not occurred." Bentley,
317 Kan. at 242. It is the defendant's burden to establish reversibility "and, when
examining whether the defendant has met that burden, the reviewing court makes a de
novo determination based on the entire record." Bentley, 317 Kan. at 242.
The parties agree Turner did not request an instruction on self-defense, so we
review for clear error.
The panel concluded the instruction would have been legally appropriate because
self-defense is an applicable defense to attempted murder. Turner, 2022 WL 15527878,
at *6. Neither party contests this conclusion. Their disagreements begin with the factual
appropriateness of the instruction.
K.S.A. 2022 Supp. 21-5222 describes the right to use self-defense in the following
manner:
"(a) A person is justified in the use of force against another when and to the
extent it appears to such person and such person reasonably believes that such use of
force is necessary to defend such person or a third person against such other's imminent
use of unlawful force.
8
"(b) A person is justified in the use of deadly force under circumstances
described in subsection (a) if such person reasonably believes that such use of deadly
force is necessary to prevent imminent death or great bodily harm to such person or a
third person."
This statute sets out a two-part test. The first part is a subjective one "and requires
a showing that [the defendant] sincerely and honestly believed it was necessary to kill to
defend herself or others." State v. Qualls, 309 Kan. 553, 557, 439 P.3d 301 (2019)
(quoting State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 [2012]). The second
part of the test is objective "and requires a showing that a reasonable person in [the
defendant's] circumstances would have perceived the use of deadly force in self-defense
as necessary." Qualls, 309 Kan. at 557 (quoting McCullough, 293 Kan. at 975).
K.S.A. 2022 Supp. 21-5226 creates some exceptions to using self-defense.
Relevant here, the statute makes self-defense unavailable to anyone who
"initially provokes the use of any force against such person or another, unless:
"(1) Such person has reasonable grounds to believe that such person is in
imminent danger of death or great bodily harm, and has exhausted every reasonable
means to escape such danger other than the use of deadly force . . . ." K.S.A. 2022 Supp.
21-5226(c).
Turner was entitled to a self-defense instruction so long as there was "'competent
evidence"' to support it. State v. Harris, 313 Kan. 579, 592, 486 P.3d 576 (2021) (quoting
2020 Supp. K.S.A. 21-5108[c]). Competent evidence is "evidence that could allow a
rational fact-finder to reasonably conclude that the defense applies." Harris, 313 Kan at
592.
9
The panel concluded Turner's testimony provided competent evidence Turner
subjectively and objectively feared for his life when he raised his weapon and fired. The
panel further concluded there was competent evidence that would support a finding the
initial aggressor exception did not apply. It reasoned a rational fact-finder could find
Turner did not initially provoke Alfaro and that even if he did, Turner had no other means
to escape deadly force. 2022 WL 15527878, at *8.
The State argues the panel made two errors in its reasoning. First, it contends the
panel erred in considering the evidence in a light most favorable to Turner because
Turner did not request the instruction below. The State insists when an instructional error
is unpreserved, appellate courts should not look at the evidence in a light most favorable
to the defendant when considering the factual appropriateness of an instruction. The State
argues this approach conflicts with what this court did in State v. Williams, 295 Kan. 506,
286 P.3d 195 (2012), with what it directed in State v. Pulliam, 308 Kan. 1354, 430 P.3d
39 (2018), and with the clear error standard in K.S.A. 2022 Supp. 22-3414(3).
We will not address the State's argument because it failed to advance it in the
Court of Appeals. It hinted at it when it set out the governing law in its appellate brief by
writing "[a] requested instruction relating to self-defense is factually appropriate if there
is sufficient evidence, when viewed in the light most favorable to the defendant, for a
rational factfinder to find for the defendant on that theory." (Emphasis added.) But the
State did not ask the panel to review the evidence any differently in the case of an
unrequested instruction or depart from the line of caselaw explaining that evidence is
reviewed in a light most favorable to the defendant without distinguishing between
requested and unrequested instructions. See, e.g., State v. Lowry, 317 Kan. 89, 96, 524
P.3d 416 (2023); State v. Becker, 311 Kan. 176, 183, 459 P.3d 173 (2020) (quoting State
v. Chavez, 310 Kan. 421, 430, 447 P.3d 364 [2019]) (instruction is factually appropriate
"if there is 'sufficient evidence, viewed in the light most favorable to the defendant or the
10
requesting party, that would have supported the instruction'"). We recently declined to
review the same argument under similar circumstances. See State v. Berkstresser, 316
Kan. 597, 602, 520 P.3d 718 (2022) (argument that unrequested instructions should be
reviewed in light most favorable to the State unpreserved and thus unreviewable when
State only hinted at issue in Court of Appeals).
Next, the State argues the panel erred in concluding that, even when one considers
the evidence in a light most favorable to Turner, a self-defense instruction was factually
appropriate. It accepts the Court of Appeals conclusion there was competent evidence to
support a finding Turner objectively and subjectively feared for his life. But it argues the
panel erred in holding there was competent evidence to support a finding Turner was not
an initial aggressor. The State reasons that, even according to his own testimony, Turner
initially provoked Alfaro by driving up next to him with a gun in his lap and he did not
try to escape before turning to deadly force.
The panel rejected this argument. It concluded a rational fact-finder could find
Turner did not provoke Alfaro because there was evidence Turner's window was only
halfway down and tinted very dark, meaning Alfaro could not see the gun in Turner's lap.
Turner, 2022 WL 15527878, at *8.
The State acknowledges this evidence, but argues the panel erred because it
ignored contradictory evidence that would make that an unreasonable finding. The State
insists because Turner pulled up close to Alfaro and Somoza on the driver's side, the gun
would have been visible to them.
This is unconvincing. The evidence could have supported a finding that Turner
had a gun in his lap that was not visible to Alfaro or Somoza. It may have also supported
a finding that the gun was visible, but that does not mean the instruction was factually
11
inappropriate. State v. Holley, 313 Kan. 249, 255, 485 P.3d 614 (2021), on reh'g 315
Kan. 512, 509 P.3d 542 (2022) ("A defendant's testimony, even if contradicted by all
other witnesses and physical evidence, satisfies the defendant's burden as long as a
rational fact-finder would reasonably conclude the defense applies."). We agree with the
panel that the instruction would have been factually appropriate.
When an unrequested instruction would have been legally and factually
appropriate, its absence amounts to clear error requiring reversal only if "the reviewing
court . . . is firmly convinced that the jury would have reached a different verdict had the
instruction error not occurred." Bentley, 317 Kan. at 242.
The panel concluded that the failure to instruct on self-defense was not clear error
because the evidence against Turner was "overwhelming." Turner, 2022 WL 15527878,
at *10.
Turner argues the panel erred because it did not consider how the weight of the
evidence would have changed if the jury had been instructed on self-defense. Turner cites
the evidence that Alfaro started laughing after Turner's gun did not fire and that Alfaro
tried to follow Turner after he drove away. Turner argues that, had the jury been given
the opportunity to consider self-defense, they would have relied on these facts to believe
Turner's testimony. He insists the jurors would have also interpreted the phone calls
between Turner and Velasquez as discussions about collecting money, not about killing
someone, if it had been instructed on self-defense.
We disagree. Alfaro and Somoza testified they had no weapon. Velasquez told
Turner, when Alfaro's head is under the hood, do "your thing" and then "jump on the
motherfuckin' freeway." When Turner called Velasquez back after the gun misfired, he
12
told Velasquez the gun had malfunctioned, and that Somoza had seen him and "might
have to go, too."
Like the Court of Appeals, we are not clearly convinced the result would have
been different with a self-defense instruction. The absence of a sua sponte instruction on
self-defense was not clear error.
Substitute Counsel
Before trial, Turner moved for new appointed counsel. After two hearings, the
district court denied the motion. Turner appealed, and the panel affirmed.
This court reviews a district court's denial of a motion for substitute counsel for an
abuse of discretion. The defendant bears the burden of establishing an abuse of
discretion. State v. Breitenbach, 313 Kan. 73, 90, 483 P.3d 448, cert. denied, 142 S. Ct.
255 (2021).
The state and federal Constitutions guarantee a right to effective assistance of
counsel. But they do not guarantee a criminal defendant the right to choose which
attorney is appointed to represent them. Breitenbach, 313 Kan. at 90. Thus, if a defendant
requests substitute appointed counsel, the defendant must show "'justifiable
dissatisfaction' with appointed counsel." Breitenbach, 313 Kan. at 90 (quoting State v.
Sappington, 285 Kan. 158, 166, 169 P.3d 1096 [2007]). Instances that may show
"[j]ustifiable dissatisfaction include[] a showing of a conflict of interest, an irreconcilable
conflict, or a complete breakdown in communications between counsel and the
defendant." Breitenbach, 313 Kan. at 90 (quoting Sappington, 285 Kan. at 166).
Ultimately, however, the court may refuse to appoint new counsel so long as it has "'a
reasonable basis for believing the attorney-client relation has not deteriorated to a point
13
where appointed counsel can no longer give effective aid in the fair presentation of a
defense.'" Breitenbach, 313 Kan. at 90. And, if a "defendant's dissatisfaction emanates
from a complaint that cannot be remedied or resolved by the appointment of new
counsel—such that replacement counsel would encounter the same conflict or dilemma—
the defendant has not shown the requisite justifiable dissatisfaction" for substitute
appointed counsel. Breitenbach, 313 Kan. at 90-91.
In the district court, Turner alleged his counsel was doing a poor job by failing to
file certain motions, failing to amend Turner's charges, failing to investigate certain
things, and failing to regularly communicate with Turner. Turner argued this had
culminated in a breakdown of communication that made it impossible to carry on.
Turner's counsel acknowledged he and Turner were no longer able to talk about the case
but told the court it was because Turner refused to talk with him. The district court denied
the motion and gave a thorough explanation as to why. Summarized, the court concluded
Turner had unrealistic expectations of what an attorney did and that he would have the
same complaints even with new counsel.
The Court of Appeals affirmed the district court's decision. It observed the district
court based its ruling on a finding that counsel's representation was adequate. Thus, even
if there was a complete breakdown in communication, that breakdown stemmed from
Turner's unreasonable expectations and would not be remedied by new counsel. Turner,
2022 WL 15527878, at *4-5.
In his petition for review, Turner fails to discuss the Court of Appeals decision or
point to any error in its analysis. He instead argues the district court was wrong when it
concluded Turner would have the same complaints with new counsel. He asserts that his
complaints and the breakdown in communication stemmed from trial counsel's lack of
advocacy and thus, if he had new and zealous counsel, he would not have the same
14
complaints. He reasserts his position that counsel was inadequate because he failed to file
motions to dismiss he said he would file, failed to investigate Turner's alibi defense, and
failed to show Turner he was properly preparing the case.
We see no error in the panel's analysis. Turner fails to explain why a motion to
dismiss was warranted or why counsel should have investigated an alibi defense when
Turner admitted to being at the scene and trying to fire his weapon. Without some
showing that these actions amounted to inadequate representation, they are fairly
described as trial strategy, which is the "'exclusive province of the lawyer.'" State v.
Brown, 305 Kan. 413, 426, 382 P.3d 852 (2016) (quoting State v. Banks, 216 Kan. 390,
395, 532 P.2d 1058 [1975]). And this court has held that disagreements about trial
strategy do not "show a complete breakdown in communication." Brown, 305 Kan. at
426; see also State v. Burnett, 300 Kan. 419, 450-51, 329 P.3d 1169 (2014) (defendant
had not shown justifiable dissatisfaction or that complaints would be remedied by new
counsel when complaints stemmed from defense counsel's refusal to investigate matters
or call witnesses defendant deemed important).
Turner also fails to offer any authority for his position that his attorney needed to
"show [Turner] he was working for him and properly preparing the case" to provide
effective representation. Moreover, he fails to explain what this would require and why it
would be alleviated by a new attorney. We affirm the Court of Appeals decision to affirm
the district court's denial of the motion for new appointed counsel.
Ineffective Assistance of Counsel
After the jury convicted Turner, Turner moved pro se for a new trial. He alleged,
among other things, he was entitled to a new trial because his counsel had been
ineffective when he failed to request a self-defense instruction. Newly appointed counsel
15
submitted a supplemental brief that advanced the same allegation. At a hearing, Turner's
new counsel asked trial counsel why he had not requested a self-defense instruction:
"Q: And when you said that you didn't think you'd get a self-defense instruction,
I think we're all generally familiar with the difficulty with that issue of self-defense
instruction and the case law and how, on many occasions, the defense will argue for it
and the Court will determine that it's not appropriate under the circumstances or the facts
of the case and the Court just declines to give the instruction. And that was your
determination that, based on the facts and circumstances here, it just wasn't gonna
happen?
"A: That was my determination. If it was a mistake, it was a mistake."
The district court concluded defense counsel had not been deficient and denied the
motion for a new trial. The court reasoned counsel was "very experienced, made
decisions, employed a strategy, one that seemed to—in the poker analogy, to be the best
one that could be done with the facts and circumstances." The court further ruled even if
counsel had been deficient, any deficiencies could not have been prejudicial.
The Court of Appeals disagreed with the district court's reasoning. It held
counsel's "failure to request a jury instruction on self-defense was objectively
unreasonable." Turner, 2022 WL 15527878, at *13. But a majority of the panel affirmed
the district court's ultimate ruling after concluding the instruction would not have made a
difference given the "overwhelming evidence against [Turner]." 2022 WL 15527878, at
*13.
Our standard for reviewing an ineffective assistance of counsel claim is wellknown:
16
"In evaluating a claim of ineffective assistance [of counsel], courts apply a two-step test.
First, they consider whether the defendant has shown that 'counsel's representation fell
below an objective standard of reasonableness.' Balbirnie [v. State], 311 Kan. [893,]
897[, 468 P.3d 334 (2020)] (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 [1984]). If the defendant succeeds in making this showing, the
next step requires the defendant show 'the deficient performance prejudiced the defense.'
Balbirnie, 311 Kan. at 897." State v. Dinkel, 314 Kan. 146, 148, 495 P.3d 402 (2021).
In assessing prejudice, "'[j]udicial scrutiny of counsel's performance must be
highly deferential, and a fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.'" Dinkel, 314 Kan. at 148 (quoting State v. Betancourt,
301 Kan. 282, 306, 342 P.3d 916 [2015]).
An appellate court uses a mixed standard of review in evaluating lower decisions
on ineffective assistance of counsel. It "consider[s] whether substantial competent
evidence supports the court's factual findings and review[s] the court's conclusions of law
de novo." Dinkel, 314 Kan. at 148.
The State argues the Court of Appeals erred when it concluded defense counsel's
failure to request a self-defense instruction was objectively unreasonable. The State's
only argument is that a self-defense instruction was factually inappropriate, so it could
not have been unreasonable when counsel did not request such an instruction.
We have concluded an instruction on self-defense was factually appropriate. This
defeats the argument on which the State rests its position. We thus affirm the Court of
Appeals conclusion defense counsel was deficient in failing to request a self-defense
instruction and turn to the prejudice analysis.
17
The majority of the Court of Appeals concluded the deficient performance was not
prejudicial because there was no reasonable possibility the failure to request a selfdefense instruction affected the outcome of the trial, given the "overwhelming evidence"
against Turner's defense. Turner, 2022 WL 15527878, at *13.
Judge Malone dissented on this issue. He opined that the failure to give the jury an
avenue to apply Turner's defense was prejudicial, likening this case to State v. Dinkel,
314 Kan. 146. Turner, 2022 WL 15527878, at *19 (Malone, J., concurring in part and
dissenting in part). In Dinkel, the State charged Dinkel with rape of a child under 14.
Dinkel admitted to sexual intercourse with a child under 14 but argued in defense the
alleged victim had initially raped her while she did nothing but lie motionless on a bed.
This court held that defense counsel had been ineffective because they did not request an
instruction on the voluntary act requirement, and without such an instruction, the jury had
no way to apply Dinkel's defense. This court explained:
"The failure to give the jury the tools it needed to apply Dinkel's defense against
the State's case made it impossible to achieve the fundamental fairness we expect in a
criminal trial. The instructions told the jury the State had to prove Dinkel knowingly
engaged—meaning she was aware of her conduct—in sexual intercourse with K.H.
between November and March while K.H. was less than 14 years old. Dinkel admitted to
at least one instance of sexual intercourse with K.H. during this time. She also testified
that K.H. forcibly raped her during their first sexual encounter while she just 'lied there'
and presented evidence to support this claim. But no instruction told the jury that Dinkel
was not guilty if she was forcibly raped. Because we generally presume juries follow
instructions, State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011), the absence of an
instruction permitting the jury to apply Dinkel's defense was prejudicial. Without it,
Dinkel's testimony secured her conviction for at least one of the charges.
. . . .
18
"We conclude that Struble's deficient performance resulted in a 'breakdown in the
adversarial process' and that, without this breakdown, the result would likely have been
different.' Strickland, 466 U.S. at 696." Dinkel, 314 Kan. at 154-55.
Here, Judge Malone reasoned that "[a]s in Dinkel, Turner's counsel urged the jury
to find Turner not guilty but offered them no avenue to do so. While counsel presented
Turner's version of events to the jury, nothing in his arguments or the instructions told the
jury how it could use that information to acquit him." Turner, 2022 WL 15527878, at *21
(Malone, J., concurring in part and dissenting in part).
Turner adopts the dissent's position. He also argues the panel erred in viewing the
evidence against him as overwhelming. He contends the panel embraced the State's
version of events without considering how else the evidence could have been interpreted.
At first blush, there are some similarities to Dinkel. The jury was instructed the
State proved the charged crime if it proved Turner committed an overt act in furtherance
of the premeditated and intentional killing of Alfaro. Turner admitted to lifting his gun,
pointing it in the direction of Alfaro and Somoza, and pulling the trigger because he
thought Alfaro was going to shoot him. In so doing, it would appear he effectively
admitted to attempted first-degree murder. He argued his actions were justified as an act
of self-defense. But, as in Dinkel, the jury here had no way to apply that justification
when it was not offered a self-defense instruction.
But there are two distinguishing factors here that indicate the majority of the Court
of Appeals was correct in concluding the presence of a self-defense instruction was not
reasonably likely to change the outcome of the trial. The first difference lies in the jury
verdict. In Dinkel, this court opined that a revealing jury verdict might inform the
prejudice analysis. Dinkel, 314 Kan. at 154 ("We might also be able to conclude there
19
was no prejudice here if the jury's verdict could somehow show that the jury applied
Dinkel's defenses even though it was never instructed to do so.").
The verdict in this case is enlightening. The jury convicted Turner of the separate
offense of conspiracy to commit murder in the first degree. To find Turner guilty of this
charge, the jury had to find:
1. The defendant agreed with another person to commit murder in the first
degree.
2. The defendant did so with the intent that murder in the first degree be
committed.
3. The defendant or any party to the agreement acted in furtherance of the
agreement by sitting off the residence on South Greenwood, watching the
victims, and then driving by and drawing a handgun and pulling the trigger
multiple times.
4. This act occurred on or about the 14th day of August, 2018, in Sedgwick
County, Kansas.
Thus, the jury found Turner agreed with another person to commit a murder and
acted in furtherance of that agreement by going to Alfaro's, waiting, and pulling the
trigger. This is inconsistent with the notion that Turner went to Alfaro's to collect money
and only pulled the trigger in self-defense after a gun was pulled on him. If the jury had
believed Turner's version of events, it seems likely they would have rejected the
conspiracy charge.
20
Of course, it is difficult to predict what a jury will do. Cf. State v. Barrett, 309
Kan. 1029, 1039, 442 P.3d 492 (2019) (observing existence of jury nullification and
inconsistent verdicts and their mitigating effect on complex cases). There may be an
argument to be made that a robust presentation from defense counsel, coupled with a selfdefense jury instruction, could have changed the jurors' minds.
But the second factor that distinguishes this case from Dinkel counters any
unpredictability. As the Court of Appeals observed, there was a significant amount of
evidence weighing directly against Turner's defense. Both Alfaro and Somoza testified
that neither of them had a gun. And the calls between Turner and Velasquez suggested
Turner was there to commit a murder.
In contrast, in Dinkel, there was evidence that supported Dinkel's claim that she
did not voluntarily act and minimal evidence countering it. The defendant argued she had
hired the alleged victim to do work around her house. She testified that one day, he
pushed her down on a bed and held her there while he penetrated her vagina with his
penis. She entered a Facebook message into evidence in which K.H. allegedly wrote that
he had forced Dinkel into the first sexual encounter. Dinkel, 311 Kan. at 555. K.H.
testified that he had never raped Dinkel, but no more evidence countered Dinkel's claim
that she just lay on the bed while K.H. held her down. State v. Dinkel, No. 113,705, 2018
WL 1439992, at *8 (Kan. App. 2018) (unpublished opinion) ("K.H. denied ever raping
Dinkel"), rev'd 311 Kan. 553, 465 P.3d 166 (2020).
This difference is significant because with evidence in support of Dinkel's
testimony and minimal evidence countering it, there was a greater chance the jury would
accept it if it had been given the tools to do so. But here, there was significant evidence
21
Turner did not act in self-defense. This makes it less likely a jury would accept his
testimony and less challenging for an appellate court to assess possible prejudice.
Turner insists the evidence was not overwhelming. He focuses on the phone calls
between himself and Velasquez, arguing that they never discussed homicide and could
easily be interpreted as discussions regarding collecting drug money.
Turner is correct that neither party mentioned homicide on the phone calls. But
neither party mentioned money, either. They also did not mention any failed attempts to
collect money from Alfaro before the attempted shooting. And Turner's phone call to
Velasquez immediately after he left Alfaro's never mentioned Alfaro having a weapon or
a failed attempt to collect money. Turner told Velasquez only that the gun had not fired,
and that Somoza would need to go, too, because he had seen Turner.
When determining whether counsel's failure to advocate for an instruction
supporting the defendant's only line of defense was prejudicial, a jury verdict that clearly
reveals the jury would have rejected that defense and strong evidence cutting directly
against that defense can inform the analysis. Here, the weight of evidence cutting directly
against Turner's defense, along with the jury verdict finding Turner guilty of conspiracy
to commit first-degree murder, distinguish this case from Dinkel and show there was no
reasonable possibility the verdict would have been different had the jury been instructed
on self-defense.
We agree with the Court of Appeals that counsel's failure to request a self-defense
instruction was not prejudicial.
22
Motions for District Judge's Recusal
After he was convicted and before sentencing, Turner filed three motions—two
pro se and one through counsel—and an affidavit alleging the trial judge was biased
against Turner and requesting the judge recuse. The motions were denied. The Court of
Appeals affirmed.
This court exercises de novo review over whether a trial judge should have
recused and whether the failure to do so warrants setting aside a district court judgment.
State v. Moyer, 306 Kan. 342, 369, 410 P.3d 71 (2017).
There are "at least three possible bases for litigants to seek recusal of a trial judge:
[1] the Kansas Code of Judicial Conduct, Supreme Court Rule 601B, Canon 2, Rule 2.2
(2013 Kan. Ct. R. Annot. 735); [2] K.S.A. 20-311d(c); and [3] the Due Process Clause of
the Fourteenth Amendment to the United States Constitution." State v. Moyer, 306 Kan.
at 370.
Turner cited all three bases as authority in seeking Judge Brown's recusal. The
Court of Appeals held the district court did not err in denying the motions for recusal. We
affirm that decision.
Statutory Analysis
K.S.A. 20-311d(a) permits a party to move for a change of judge. If that motion is
denied, the party may file an affidavit alleging one or more of the grounds for
disqualification listed in K.S.A. 20-311d(c), including when "[t]he party or the party's
attorney . . . has cause to believe and does believe that on account of the personal bias,
prejudice or interest of the judge such party cannot obtain a fair and impartial trial or fair
23
and impartial enforcement of post-judgment remedies." K.S.A. 20-311d(c)(5). The chief
judge or another assigned judge should then determine "the legal sufficiency of the
affidavit." K.S.A. 20-311d(b). K.S.A. 20-311d(d) provides that "the recital of previous
rulings or decisions by the judge on legal issues . . . shall not be deemed legally sufficient
for any belief that bias or prejudice exists."
On review of a judge's decision not to recuse under this statute, an appellate court
"'must decide the legal sufficiency of the affidavit and not the truth of the facts alleged.'"
Moyer, 306 Kan. at 371 (quoting State v. Sawyer, 297 Kan. 902, 908, 305 P.3d 608
[2013]). The appellate court decides "'whether the affidavit provides facts and reasons . . .
which, if true, give fair support for a well-grounded belief that he or she will not obtain a
fair trial.'" Moyer, 306 Kan. at 371 (quoting Sawyer, 297 Kan. at 908). The court
considers "'whether the charges are grounded in facts that would create reasonable doubt
concerning the court's impartiality, not in the mind of the court itself, or even necessarily
in the mind of the litigant filing the motion, but rather in the mind of a reasonable person
with knowledge of all the circumstances.'" Moyer, 306 Kan. at 371 (quoting Sawyer, 297
Kan. at 908).
After the district court denied Turner's motion for the judge's recusal, Turner filed
an affidavit supporting the request for recusal in accordance with K.S.A. 20-311d(a). He
argued the judge had been biased and prejudicial against him and this prejudice and its
effect was evident in the judge's decisions allowing the State to introduce "fatally tainted"
evidence, allowing improper jury instructions, denying the motion for new counsel, and
in the judge's habit of cutting Turner off when he was talking in a way that made Turner
feel "belittled," "threatened and intimidated."
The district judge assigned to consider the affidavit concluded that disagreement
with the judge's rulings and any irritation the judge showed towards Turner could not
24
demonstrate judicial bias or prejudice. It also ruled that the fact the judge required Turner
to quit talking and present his defense through trial counsel could not show bias or
prejudice. Thus, the district court concluded the affidavit was legally insufficient to force
the judge's recusal.
The Court of Appeals agreed with the district court's conclusions that
disagreement with a ruling is not legally sufficient to show bias or prejudice. The panel
further concluded that cutting Turner off after asking him to speak could not show bias
because a judge has broad discretion in controlling a courtroom. Turner, 2022 WL
15527878, at *14.
We conclude the panel made no error in affirming the district court's decision that
Turner's affidavit was not legally sufficient to warrant the district judge's recusal under
K.S.A. 20-311d. The panel's conclusion that disagreement with rulings cannot serve as
the basis for recusal is sound. See Sawyer, 297 Kan. at 908 (declining to consider
disagreements with district court's rulings in recusal analysis because "[a]dverse legal
rulings alone cannot form the basis for a recusal") (citing K.S.A. 20-311d[d]).
That leaves only Turner's complaints about the judge cutting him off in a way that
made him feel belittled or threatened. But the panel persuasively pointed out that judges
have great leeway in controlling a courtroom. See State v. Kemble, 291 Kan. 109, 114,
238 P.3d 251 (2010) ("'a trial court must control the proceedings in all hearings and trials
and . . . has broad discretion and leeway in doing so'"). Without more details about these
incidents or why they went beyond a judge's responsibility to direct parties when to
speak, the bare facts provided in the affidavit are legally insufficient to force a judge's
recusal under the statute. See Sawyer, 297 Kan. at 908 (allegations in affidavit that judge
prevented pro se pleadings and ordered defendant transported gag in place were not,
25
without more detail, legally sufficient to force recusal because this is not always
unjustified).
Code of Judicial Conduct Analysis
Kansas Supreme Court Rule 601B, Canon 2, Rule 2.2 provides: "A judge shall
uphold and apply the law, and shall perform all duties of judicial office fairly and
impartially." (2023 Kan. S. Ct. R. at 493). Canon 2, Rule 2.11 provides: "A judge shall
disqualify himself or herself in any proceeding in which the judge's impartiality might
reasonably be questioned, including . . . (1) The judge has a personal bias or prejudice
concerning a party or a party's lawyer . . . ." (2023 Kan. S. Ct. R. at 499.)
A motion for recusal under the Judicial Code of Conduct is not constrained by the
statutory prohibition on relying on adverse rulings to move for a judge's recusal under
K.S.A. 20-311d. See K.S.A. 20-311d(d) (prohibiting "affidavit filed pursuant to this
section" from relying on previous rulings or decisions to show bias). Nonetheless, Turner
has failed to show the rulings in this case showed bias or prejudice against him. He
complains about the judge's admission of evidence, denial of motion for new counsel,
refusal to rule on pro se motions, jury instruction on intent, and imposed sentence. But
review of the record suggests there was no bias influencing these decisions. The judge
did not rule on pro se pleadings other than ineffective assistance of counsel claims
because Turner was continually represented by counsel. And all the rulings, including
sentencing, were offered after arguments from both sides and with the judge's
consideration of the applicable law. While the judge's decision to run all three sentences
consecutively added time to what the State recommended, this was within the court's
discretion to do.
26
Furthermore, the district judge's efforts to stop Turner from speaking do not show
a bias or prejudice against Turner. While some of the judge's comments may have
showed some irritation, review of the entire record reveals that the comments to which
Turner appears to refer were isolated, did not represent the judge's usual or general
demeanor, and were precipitated by regular interruptions from Turner. The few
comments to which Turner points to would not cause a reasonable person to believe the
judge could not act impartially. There are many instances throughout the record during
which Judge Brown showed great patience with Turner and his repeated attempts to
address the court and discuss his legal arguments. Turner has failed to show that the
judge's conduct and rulings would make a reasonable person question his impartiality and
require recusal under the Code of Judicial Conduct.
Due Process Analysis
The Due Process Clause of the Fourteenth Amendment "guarantees 'an absence of
actual bias' on the part of a judge." Williams v. Pennsylvania, 579 U.S. 1, 8, 136 S. Ct.
1899, 195 L. Ed. 2d 132 (2016) (quoting In re Murchison, 349 U.S. 133, 136, 75 S. Ct.
623, 99 L. Ed. 942 [1955]). Because "bias is easy to attribute to others and difficult to
discern in oneself," the Supreme Court applies "an objective standard that . . . asks not
whether a judge harbors an actual, subjective bias, but instead whether, as an objective
matter, 'the average judge in his position is "likely" to be neutral, or whether there is an
unconstitutional "potential for bias."'" Williams, 579 U.S. at 8 (quoting Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 881, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 [2009]).
The Supreme Court has identified at least four instances when that would be the
case:
"when a judge has a direct, personal, substantial pecuniary interest in the case; when a
judge has an indirect financial interest in the case's outcome; when a judge issues a
27
contempt citation in one case and proceeds to try the contempt citation; and, in rare
instances, when a litigant donates to a judge's campaign for office." Sawyer, 297 Kan. at
909.
The Supreme Court has held that, if the failure to recuse violates due process
because the potential for bias was unconstitutionally intolerable, the error was structural
and thus not subject to harmless error review. Williams, 579 U.S. at 15-16.
This court has previously expressed the test under due process differently, asking
"'whether the judge had a duty to recuse from the case because the judge was biased,
prejudiced, or partial" and, if so, "whether the judge's failure to recuse resulted in actual
bias or prejudice.'" Moyer, 306 Kan. at 375-76 (quoting Sawyer, 297 Kan. at 909). But it
has acknowledged that the accuracy of this test is questionable and may need to be
revisited. Moyer, 306 Kan. at 376; Sawyer, 297 Kan. at 909. In neither case, however, did
this court need to revisit the test. In Sawyer, the defendant showed an objectively
intolerable potential for bias, thus satisfying the Supreme Court's due process standard
requiring recusal. 297 Kan. at 911-12. And in Moyer, the defendant failed to show recusal
was necessary under either test. 306 Kan. at 376.
This case is like Moyer. Turner has not alleged that any of the four circumstances
identified by the Supreme Court as objectively requiring recusal were present in this case.
Nor has he pointed to other facts that would suggest the "objective risk of actual bias" on
the part of the judge" rose to an unconstitutional level. See Caperton 556 U.S. at 886. He
has pointed only to rulings and comments from the judge that he claims showed an actual
bias. Even if this court's previously used due process test, which requires recusal upon a
showing of actual bias, is still viable, we have concluded Turner has not shown actual
bias. Thus, his due process claim fails.
28
We affirm the Court of Appeals conclusion there was no error when Judge Brown
did not recuse.
Cumulative Error
Turner argues even if the errors he alleges did not individually require reversal,
they worked collectively to deny him a fair trial.
"'The test for cumulative error is whether the errors substantially prejudiced the
defendant and denied the defendant a fair trial given the totality of the circumstances. In
making the assessment, an appellate court examines the errors in context, considers how
the district court judge addressed the errors, reviews the nature and number of errors and
whether they are connected, and weighs the strength of the evidence. . . . If any of the
errors being aggregated are constitutional, the constitutional harmless error test of
Chapman applies, and the party benefitting from the errors must establish beyond a
reasonable doubt that the cumulative effect of the errors did not affect the outcome. . . .
Where, as here, the State benefitted from the errors, it has the burden of establishing the
errors were harmless.' State v. Thomas, 311 Kan. 905, 914, 468 P.3d 323 (2020)." State v.
Brown, 316 Kan. 154, 172-73, 513 P.3d 1207 (2022).
The Court of Appeals identified two errors in its cumulative error analysis:
defense counsel's failure to request a self-defense instruction and the trial court's failure
to sua sponte instruct the jury on self-defense. Because these both dealt with the failure to
get a self-defense instruction in front of the jury, the panel counted this as one error and
held the cumulative error doctrine did not apply. It further held the doctrine did not apply
because the evidence against Turner was overwhelming, citing State v. Hilt, 299 Kan.
176, 200, 322 P. 3d 367 (2014). Turner, 2022 WL 15527878, at *15.
Turner does not allege any error with the panel's decision to count its identified
errors as one. He argues the panel's analysis is off because there were additional errors to
29
aggregate.

Outcome: But we have rejected Turner's two additional claims of error. Thus, Turner's
cumulative error argument fails and we affirm the panel's conclusion.
Judgment of the Court of Appeals affirming the district court on the issues subject to review is affirmed. Judgment of the district court is affirmed on the issues subject to review.

Plaintiff's Experts:

Defendant's Experts:

Comments: