              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 115,650

                                      JOHN BALBIRNIE,
                                         Appellant,

                                              v.

                                     STATE OF KANSAS,
                                         Appellee.


                              SYLLABUS BY THE COURT

1.
       The Sixth Amendment to the United States Constitution guarantees the right to
effective assistance of counsel, and denial of the right can lead to reversal of a jury
verdict. Courts consider whether a reversible denial of the right occurred by applying a
two-prong test stated by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A convicted defendant must first
establish deficient performance, by showing that counsel's representation fell below an
objective standard of reasonableness. Then, the defendant must show that the deficient
performance prejudiced the defense.


2.
       After a full evidentiary hearing about an ineffective assistance of counsel claim
brought under K.S.A. 60-1507, an appellate court reviews a district court's findings of
fact and conclusions of law under a mixed standard of review. The appellate court
examines the record and determines whether substantial competent evidence supports the
district court's factual findings and determines whether those findings support the district

                                              1
court's conclusions of law. The appellate court then reviews the conclusions of law
de novo.


3.
        A court considering whether ineffective assistance of counsel caused prejudice
must ask if a defendant has met the burden of showing a reasonable probability the result
of the proceeding would have been different but for counsel's deficient performance. The
ultimate focus of inquiry must be on the fundamental fairness of the proceedings and
whether, despite the strong presumption of reliability, the result of the proceedings is
unreliable because of a breakdown in the adversarial process counted on to produce just
results.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed November 17,
2017. Appeal from Franklin District Court; ERIC W. GODDERZ, judge. Opinion filed July 24, 2020.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed, and the case is remanded with directions.


        Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued the cause and was on the
brief for appellant.


        Brandon L. Jones, county attorney, argued the cause, and Stephen A. Hunting, former county
attorney, and Derek Schmidt, attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        LUCKERT, C.J.: A jury convicted John Balbirnie of the second-degree murder of
Paul Nicholson, who died from a stab wound to the chest. Balbirnie appealed and his
conviction was affirmed by the Court of Appeals. State v. Balbirnie, No. 106,849,

                                                      2
2013 WL 3455772 (Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan. 1204
(2014).


       Within a year after the mandate issued in Balbirnie's direct appeal, he moved to
have his conviction set aside. Balbirnie, who has consistently and repeatedly maintained
his innocence, argued his appointed trial counsel ineffectively represented him by failing
to admit into evidence a recording of a 911 call in which the caller identified someone
other than Balbirnie as the person who stabbed Nicholson.


       To establish ineffective assistance of counsel, Balbirnie must show (1) his
attorney's performance fell below an objective standard of reasonableness and (2) the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The district court held Balbirnie failed
to establish both requirements. The Court of Appeals panel disagreed on the first prong,
holding trial counsel's performance fell below an objective standard of reasonableness.
But the panel agreed with the district court that Balbirnie had failed to establish the
second prong of prejudice. Balbirnie v. State, No. 115,650, 2017 WL 5508140 (Kan.
App. 2017) (unpublished opinion). We reverse both the Court of Appeals and the district
court and remand for further proceedings.


                        FACTUAL AND PROCEDURAL BACKGROUND


       Balbirnie seeks relief from his conviction through a motion filed under K.S.A.
60-1507. Some facts from Balbirnie's underlying criminal case are required to place his
ineffective assistance of counsel claim in context. During the events leading to
Nicholson's death, several people were at Tarissa Brown and Phillip Wallace's apartment,
including Brown, Wallace, Balbirnie, Nicholson, and Brandon Ellsmore. Wallace and
                                              3
Ellsmore admitted to verbally and physically fighting with Nicholson just before
Nicholson's death. Wallace denied using a weapon. Both Wallace and Ellsmore placed
Nicholson's death at the hands of Balbirnie, although their accounts of events were
inconsistent. Additional facts about the crime will be discussed as we consider the
possible prejudice to Balbirnie.


       In his 60-1507 motion, Balbirnie claimed his trial counsel was ineffective for
many reasons. Balbirnie has preserved only one for our consideration: His claim that his
trial counsel should have introduced a recording of a 911 call made by Brown while the
fight was ongoing. In Balbirnie's motion, he explained why the call was exculpatory:


       "Counsel failed [to] present the 911 audiotape of an eyewitness who clearly indicated
       Phillip Wallace stabbed Mr. Nicholson in the chest and this wound was the fatal blow.
       This evidence was clearly exculpatory and supported Mr. Balbirnie's defense that he did
       not stab Mr. Nicholson and the other individuals at the home were responsible for
       [Nicholson's] death."


       After reviewing the motion, the district court appointed new counsel and held an
evidentiary hearing. Balbirnie's trial counsel and Balbirnie testified.


       Balbirnie's trial counsel testified that Balbirnie maintained his innocence—from
the time law enforcement officers interviewed him through the trial, sentencing, and
beyond. The defense strategy was to prove Balbirnie was innocent and that Wallace or
Ellsmore fatally stabbed Nicholson. Trial counsel acknowledged he received a copy of
the 911 call in his discovery materials and reviewed it in preparation for trial. He agreed
the call was exculpatory. Balbirnie's counsel expected the State to admit the recording of
the 911 call into evidence, but it did not do so. Counsel explained that by the time he

                                                   4
realized the State was not going to admit the 911 call, it was impossible to secure
subpoenas to establish foundation.


       When asked whether he considered establishing the foundation through the 911
caller's testimony, counsel said he thought he had. He later realized he must have
forgotten to do so. He testified any failure to question the caller about the recording's
authenticity was an oversight and "[i]n no way" a strategic decision. He also testified that
had he introduced the 911 call into evidence, he could have presented the jury with a
potential suspect other than Balbirnie.


       A recording of the call was introduced into evidence at the 60-1507 hearing. On it,
Brown identifies Wallace as her fiancé and later can be heard saying, "My fiancé stabbed
him and he's laying [sic] right here."


       Following the hearing, the district court denied the motion, finding trial counsel
did not perform deficiently and, even if trial counsel were deficient on some basis,
Balbirnie had not established prejudice.


       Discussing the deficient performance prong of the ineffective counsel test, the
district court found "[t]oo many factors were present at trial to now decide that counsel
was unreasonable or deficient in not presenting the 911 tape." The court reasoned that
trial counsel referenced the 911 call when cross-examining Brown, other witnesses
confirmed the same facts about the stabbing, the 911 call is hard to decipher and
understand due to Brown's emotional state, and the recording contradicted the assertion in
Balbirnie's motion that Brown "'clearly indicated Phillip Wallace stabbed Mr. Nicholson
in the chest and this wound was the fatal blow.'" Finally, the district court found one


                                              5
could argue it was trial strategy not to play the audio "given the obvious emotional
turmoil the witnesses experienced at the time of the call."


       Addressing the prejudice prong, the district court found there was "no reasonable
probability that any of the errors complained of by the defendant [were] sufficient enough
to undermine confidence in the outcome." The district court reasoned that the evidence at
trial included several witnesses who saw Balbirnie stab Nicholson, Balbirnie's own
statement admits he was at the scene during the fights, police arrested Balbirnie at the
scene, and blood evidence implicated Balbirnie in the altercation. Ultimately, the district
court said: "The defendant has not presented sufficient enough evidence to establish that
there is a substantial likelihood of a different result in this case."


       Balbirnie appealed the denial. The Court of Appeals panel held the evidence did
not support the district court's finding that the failure to introduce the 911 call was a
strategic decision. The panel noted that Balbirnie's trial counsel testified his actions were
not strategy but oversight. Balbirnie, 2017 WL 5508140, at *2. And the panel held the
failure to introduce the 911 call fell below an objective standard for reasonably effective
representation. The panel reasoned that Balbirnie's defense was that someone else
stabbed Nicholson, causing his death. And the call directly supported that defense
because Brown identified someone besides Balbirnie as the person who stabbed
Nicholson. 2017 WL 5508140, at *2.


       But the Court of Appeals panel affirmed the district court's result because it agreed
Balbirnie had not established that he was prejudiced by his trial counsel's failure to
introduce the 911 call. 2017 WL 5508140, at *2-4. The panel also rejected Balbirnie's
other ineffective assistance claims for failing to meet the briefing requirements to raise
the claims on appeal. 2017 WL 5508140, at *4-5.
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       Balbirnie timely petitioned for review, which this court granted. This court's
jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals
decision).


                                         ANALYSIS


       The Sixth Amendment to the United States Constitution guarantees the right to
effective assistance of counsel, and denial of the right can lead to reversal of a jury
verdict. Courts consider whether a reversible denial of the right occurred by applying a
two-prong test stated by the United States Supreme Court in Strickland. A convicted
defendant must first establish deficient performance by "show[ing] that counsel's
representation fell below an objective standard of reasonableness." 466 U.S. at 687-88.
Then the defendant must show that the deficient performance prejudiced the defense.
466 U.S. at 687. See State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).


       After a full evidentiary hearing about an ineffective assistance of counsel claim
under K.S.A. 60-1507, an appellate court reviews a district court's findings of fact and
conclusions of law under a mixed standard of review. The appellate court examines the
record and determines whether substantial competent evidence supports the district
court's factual findings and determines whether the court's factual findings support its
conclusions of law. The appellate court then reviews the district court's conclusions of
law de novo. 297 Kan. at 669.




                                              7
       Performance Prong


       To begin, we note that Balbirnie's petition for review is limited to his ineffective
assistance claim based on the 911 call. He makes no challenge to the Court of Appeals'
holding that he failed to sufficiently brief his other ineffective assistance of counsel
claims. As a result, we will not discuss those other claims. See Supreme Court Rule
8.03(a)(4)(C) (2017 Kan. S. Ct. R. 54) ("The court will not consider issues not presented
or fairly included in the petition.").


       In raising his trial counsel's failure to introduce into evidence the 911 call,
Balbirnie's petition seeking our review focuses exclusively on the Court of Appeals
holding that he had not established Strickland's second prong of prejudice. In other
words, Balbirnie has not raised the first Strickland prong for our consideration.


       Nor has the State. The State did not cross-petition or otherwise respond to the
Court of Appeals' holding on counsel's performance, as permitted by Supreme Court Rule
8.03(b), (h)(1) (2017 Kan. S. Ct. R. 53). See Balbirnie, 2017 WL 5508140, at *2 ("Since
Balbirnie's defense was that someone else stabbed Nicholson, causing his death, and [the
caller] had said her fiancé had stabbed Nicholson, failing to introduce the 911 call was
below an objective standard for reasonably effective representation.").


       As a result, the question of error as to the performance prong is not before us, at
least according to the holding of some cases that predate Balbirnie's petition for review.
See State v. Ortega, 300 Kan. 761, 777-78, 335 P.3d 93 (2014) (State did not file cross-
petition challenging Court of Appeals' findings of instructional error and prosecutorial
misconduct; those issues not before court). But at least one other case predating
Balbirnie's petition suggested the State need not—indeed, could not—file a cross-petition
                                              8
for review. See State v. Laborde, 303 Kan. 1, 5-6, 360 P.3d 1080 (2015) (noting that in a
criminal case, the State cannot file a cross-petition when it prevailed in the Court of
Appeals, even if it disagreed with the rationale). We have since clarified the need to file a
cross-petition or provisional cross-petition in these situations. See Supreme Court Rule
8.03(c)(3) (2020 Kan. S. Ct. R. 55) ("The purpose of a cross-petition is to seek review of
specific holdings the Court of Appeals decided adversely to the cross-petitioner.").


       Because our caselaw at the time Balbirnie petitioned for review created some
ambiguity about the need for the State to file a cross-petition for review for us to consider
the performance prong, we briefly note our agreement with the panel's analysis.
Balbirnie's trial counsel testified he did not make a strategic decision. Instead, he
assumed the State would admit the 911 call and was not prepared to introduce it once the
State did not.


       Balbirnie's failure to subpoena a witness or establish the foundation to admit the
call through other means, such as through Brown authenticating her voice on the
recording, prevented the jury from hearing the recording of the call on which Brown said
Wallace had stabbed Nicholson. The call thus supported the defense theory. See 2017
WL 5508140, at *2.


       In addition, as we will detail in our discussion of the prejudice prong, the call
would have impeached the testimony of other witnesses. We therefore affirm the Court of
Appeals' holding that failing to introduce the 911 call fell below an objective standard for
reasonably effective representation.




                                              9
       Prejudice


       The United States Supreme Court has explained that defense counsel's
ineffectiveness may require reversing a verdict but not always:


       "Some errors will have had a pervasive effect on the inferences to be drawn from the
       evidence, altering the entire evidentiary picture, and some will have had an isolated,
       trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is
       more likely to have been affected by errors than one with overwhelming record support."
       Strickland, 466 U.S. at 695-96.


       Strickland identified the tipping point: "Taking the unaffected findings as a given,
and taking due account of the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has met the burden of showing
that the decision reached would reasonably likely have been different absent the errors."
466 U.S. at 696; see State v. Butler, 307 Kan. 831, 853, 416 P.3d 116 (2018) (defendant
claiming to have been prejudiced by ineffective assistance of counsel must show a
reasonable probability the result would have been different but for counsel's
performance).


       More simply stated, "the ultimate focus of inquiry must be on the fundamental
fairness of the proceeding" and "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. We have thus explained that a "reasonable probability" means "a
probability sufficient to undermine confidence in the outcome." Chamberlain v. State,
236 Kan. 650, 657, 694 P.2d 468 (1985). The district court cited the correct standard but
also said that Balbirnie had not shown a "substantial likelihood" of a different result, a
                                                   10
higher burden than required. We look instead for a reasonable probability. When doing
so, we "must consider the totality of the evidence before the judge or jury." Chamberlain,
236 Kan. at 657. See Butler, 307 Kan. at 853.


       The Court of Appeals panel noted this standard applied and reached the conclusion
Balbirnie had not met it. It noted all the details reported in the 911 call were hard to
follow, Brown did not say whether Wallace had stabbed Nicholson in the back or the
chest, and there was other significant evidence against Balbirnie. Balbirnie, 2017 WL
5508140, at *1, 4.


       To evaluate these and other points, we need to discuss the facts of the crime in
more detail. These details form the totality of the evidence and lead us to conclude:


           The evidence supporting the verdict is conflicting, and a jury could
              question the veracity of some or parts of each eyewitness' testimony.


           Although the 911 call did not establish that Wallace inflicted the killing
              stab, it raises questions about the credibility of those who attributed the stab
              to Balbirnie.

           The emotional nature of the call does not obscure its highly probative
              value.


           The other evidence does not remove the potential for a reasonable doubt
              about Balbirnie's guilt.




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       As to the first point, the evaluation of veracity would likely be influenced by the
forensic evidence. The State's forensic pathologist testified that after the fatal wound was
inflicted, Nicholson would have had at least a few seconds of awareness before
experiencing a gradual cessation of all functions. The fatal wound would have caused
death within a few minutes and usually would cause a person to collapse "pretty rapidly."
A jury could view the call as significant evidence of present sense impressions about the
sequence of events and who inflicted stab wounds, especially since Nicholson collapsed
near Brown.


       The call undermines the credibility of Brown, Wallace, and Ellsmore, as Wallace
denied using a weapon, and Brown and Ellsmore both testified they did not see Wallace
with a knife. See K.S.A. 60-420 ("Subject to K.S.A. 60-421 and 60-422, for the purpose
of impairing or supporting the credibility of a witness, any party including the party
calling the witness may examine the witness and introduce extrinsic evidence concerning
any conduct by him or her and any other matter relevant upon the issues of credibility.").


       The call also discredits the testimony of Brown about Balbirnie's admission.
Brown testified that after the police had arrived, Balbirnie said, "'I stabbed the dude in the
neck.'" Neither the call nor any officer's testimony confirms that admission.


       Balbirnie summarized various other reasons these witnesses' testimony could be
discredited:


       "The several interviews with law enforcement and sworn testimonies given by these
       witnesses are replete with glaring inconsistencies. Tarissa Brown's story goes from not
       seeing John Balbirnie stab the victim to watching him pull a pocket knife from his pocket
       and stabbing Paul Nicholson twice. Brandon Ellsmore's story begins with him telling law

                                                  12
       enforcement they could rule out John Balbirnie, to a later interview where he alleges
       seeing something shiny in John Balbirnie's hand that could have been a knife, but he
       wasn't sure, to finally Mr. Ellsmore testifying at trial that he watched John Balbirnie pull
       a pocket knife from his pocket, open the pocket knife and then stab the victim. The
       several stories told by Tarissa Brown and Brandon Ellsmore share a strikingly similar
       evolution and raise similar concerns regarding the veracity of their statements and
       testimonies. Additionally, Brandon Ellsmore received a significant reduction in prison
       time for his ever-changing version of the truth. Based upon the statements given by
       Mr. Ellsmore and Ms. Brown, Ms. Brown's fiancé, Phillip Wallace was not charged in
       connection with the death of Paul Nicholson."


       The call also underscores these issues with the witnesses' testimony. There is a
reasonable probability the jury would view these credibility issues in a different light if it
had heard the recording of the 911 call.


       The district court and Court of Appeals panel also discounted the effect of the call
because Brown is emotional, and the call is at times confusing. This is true, but Brown
still identifies her fiancé as Wallace and states, "My fiancé stabbed him and he's laying
[sic] right here." And, as Balbirnie argues, the jury could view this emotion as the most
credible evidence because Brown was reacting contemporaneously before the witnesses'
stories evolved. Balbirnie posits Brown's emotional state "portrayed a woman who had
just witnessed, first hand, a crime and that she reacted to her observation in a very
visceral way, giving the observation a credible quality." We agree.


       The State argues and the Court of Appeals also reasoned that the call does not
clearly indicate that Brown saw the fatal blow. But it was for the jury to decide whether
the fatal stab occurred within Brown's view. Even if her statement to the dispatcher was
an inference, the jury could have determined the inference was reasonable and entitled to

                                                    13
weight because it was against Brown's personal interest to implicate her fiancé. Given the
implications, the jury could have determined the version on the call was more reasonable
than Wallace's significantly different version of events. Thus, the inference could have
impacted the jury's assessment of witness credibility and Balbirnie's guilt.


       Finally, the panel discussed two types of other significant evidence against
Balbirnie: blood and Balbirnie's video-recorded statements at the police station.


       The panel noted that Balbirnie had Nicholson's blood on his bracelet and shoelace.
The testimony described the evidence as showing droplets of blood found on a knot in
Balbirnie's bracelet and the top knot of Balbirnie's left shoelace. This evidence was
inculpatory, but there was also evidence that DNA profiles from Ellsmore's socks and
Wallace's face matched Nicholson's DNA. And law enforcement testified there was blood
throughout the apartment. There were other plausible ways Balbirnie could have gotten
some of Nicholson's blood on him other than because he was the person who fatally
stabbed Nicholson.


       The panel also discussed Balbirnie's interviews at the police station. Balbirnie did
not include these interviews in the record on appeal. But the panel noted that the
prosecutor discussed the video in closing arguments, reminding the jury that Balbirnie
wiped blood off his shoulder when no one else was in the room, reenacted a stabbing
motion, and told Wallace through a wall, "'I hope I don't get told on. Just deny it, Phillip.
don't blame me.'" Balbirnie, 2017 WL 5508140, at *4. The Court of Appeals reasoned
that Balbirnie had the burden to present a record supporting his claims of error and he
should have included the videos. Despite not having the recordings to review, the panel
concluded: "[W]e cannot ignore the existence of the video—as described in our record—
even though the video itself is not in our record." 2017 WL 5508140, at *4.
                                             14
       In doing so, the Court of Appeals did not account for the evidence that police
swabbed Balbirnie's chest and the results came back as consistent with Balbirnie's DNA,
not Nicholson's. Thus, relying on the lack of forensic evidence the jury could have
rejected any suggestion the action demonstrated Balbirnie's guilt.


       What is more, many of Balbirnie's statements while alone in the interview room, at
least as described in the record, are ambiguous and others are denials of guilt. Defense
counsel pointed to the interviews in closing, arguing that when Balbirnie was left alone in
the room, he repeatedly said, "'I just didn't do anything wrong.'" A detective testified that
Balbirnie never confessed. In fact, Balbirnie consistently told the detectives that he was
merely a witness and had nothing to do with the stabbing. Finally, during the 60-1507
evidentiary hearing, Balbirnie's trial counsel testified Balbirnie has consistently
maintained his innocence. The evidence is not as one-sided as the State would suggest.


       In conclusion, we hold the record presents many credibility and evidentiary issues
that could be influenced by a jury hearing that (1) there was a 911 call from Brown made
shortly after she observed what occurred at the time of Nicholson's death and (2) she
distinctly accused her fiancé Wallace, against her best interest, as the person who stabbed
Nicholson and did not identify Balbirnie. We find merit in Balbirnie's argument the
importance of the 911 call cannot be over-estimated because it would have refuted the
other witnesses' testimony and given the jury a reasonable alternative to Balbirnie
delivering the fatal wound.


       Despite the strong presumption of the reliability of a jury verdict, Balbirnie's trial
counsel's ineffective assistance upsets the fundamental fairness of the proceeding, leading


                                              15
us to hold the result of Balbirnie's trial is unreliable because of a prejudicial breakdown in
the adversarial process.


                                          CONCLUSION


       We hold that Balbirnie has met his burden of showing that there is a reasonable
probability that, but for his trial counsel's deficient performance, the result of his trial
would have been different.


       We reverse the Court of Appeals decision affirming the district court and reverse
the district court. We reverse Balbirnie's conviction and order new trial proceedings.


       NUSS, C.J., not participating. 1
       MICHAEL E. WARD, District Judge, assigned. 2




1
 REPORTER'S NOTE: Chief Justice Lawton R. Nuss heard oral arguments but did not
participate in the final decision in case No. 115,650. Chief Justice Nuss retired effective
December 17, 2019.
2
 REPORTER'S NOTE: District Judge Ward was appointed to hear case No. 115,650
under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.
                                               16
