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No. 99,213 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. KARL BOWLIN, Appellant.

SYLLABUS BY THE COURT 1. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review.

2. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, a defendant must establish two things. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial.

3. Invocation of the Fifth Amendment right to counsel, which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), may be asserted at any time and requires, at a minimum, some statement that 1

can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.

4. The assertion of the Fifth Amendment right to counsel under the United States Constitution has two aspects: (1) the suspect must articulate his or her desire to have an attorney present sufficiently clearly so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney; and (2) the request must be for assistance with the custodial interrogation, not for later hearings or proceedings.

5. Once a suspect invokes the Fifth Amendment right to counsel under the United States Constitution, not only must the current interrogation cease, but the suspect may not be approached for further interrogation until counsel has been made available to him or her.

6. Although an officer is not required to ask clarifying questions to ambiguous postMiranda statements, it is good police practice for interviewing officers to seek clarification of suspects' ambiguous or equivocal reference to an attorney. Clarifying questions protect the suspects' rights by ensuring that they get an attorney when they want one and minimize later judicial second-guessing as to whether the suspects were actually invoking their right to counsel.

7. Under the facts of this case, where the officers clarified the defendant's request for an attorney during his interrogation but chose not to honor his right to counsel under the

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Fifth Amendment to the United States Constitution, the defendant's post-request statements were involuntary.

8. In determining whether a statement is voluntary, courts look at the totality of the circumstances. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the accused's free and independent will.

9. Coercive police activity is a necessary predicate to a finding that a confession is not voluntary.

10. Where the appellate record in this case shows that the interrogators' coercion and overreaching police conduct were causally related to the defendant's confession, the defendant's interrogation statements were involuntary.

11. Under the facts of this case, defense counsel's failure to move for suppression of the defendant's interrogation statements, which were vital to the State's case, cannot be dismissed as trial strategy and constituted ineffective assistance of counsel.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed April 30, 2010. Reversed and remanded.

Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.

Kristiane Gray, assistant district attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, for appellee.

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Before LEBEN, P.J., GREEN and CAPLINGER, JJ.

GREEN, J.: Karl Bowlin appeals from his bench trial conviction and sentence for involuntary manslaughter in violation of K.S.A. 21-3404. In addition, Bowlin appeals from the trial court's judgment denying his ineffective assistance of counsel claims after an evidentiary hearing. Bowlin first argues that his trial counsel was ineffective in not moving to suppress his statements made during a police interrogation. We agree with Bowlin's argument. The appellate record in this case establishes that there were two good bases for suppressing Bowlin's interrogation statements--that Bowlin's statements were involuntary based on overreaching police conduct and based on Bowlin's assertion of his right to counsel under the Fifth Amendment to the United States Constitution. Because the suppression of Bowlin's interrogation statements would have dealt a serious, if not fatal, blow to the State's case against Bowlin, we are unable to dismiss the decision by defense counsel to not seek suppression of Bowlin's statements as trial strategy. We determine that defense counsel's conduct in not moving for suppression of Bowlin's interrogation statements, and in actually stipulating to the admission of the interrogation tape into evidence at trial, was deficient and that Bowlin was prejudiced by such conduct.

Bowlin also contends that the State presented insufficient evidence for the trial court to convict him of involuntary manslaughter. Although we are reversing and remanding for a new trial, we must also address Bowlin's sufficiency of the evidence argument to determine whether retrial is permissible under the Double Jeopardy Clause. After reviewing all of the evidence, in the light most favorable to the State, we are convinced that a rational factfinder could have found Bowlin guilty beyond a reasonable doubt.

Because we are reversing and remanding for a new trial, we need not address Bowlin's other arguments concerning his ineffective assistance of counsel claims and the

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trial court's use of criminal history to increase his sentence. Accordingly, we reverse Bowlin's conviction for involuntary manslaughter and remand for a new trial.

Bowlin's conviction in this case is based on the death of an 8-year-old girl, Jewell Morse, who died as a result of a house fire on the evening of July 2, 2006. Two fire investigators, who conducted independent investigations, were able to eliminate several accidental causes of fire, including a gas fire and an electrical fire, but they were unable to determine the actual cause of the fire. The fire investigators were able to determine that the fire had started in the basement of the house around a table where paint thinner had spilled, and had quickly spread upstairs to the rest of the house.

During the fire investigations, a Black Cat wrapper was found in a back bedroom of the DeMotte house. Nevertheless, according to fire investigator John Paul Jones, the residents of the DeMotte house said they had run out of fireworks, and the boy who lived in that bedroom was in a juvenile detention facility when the fire occurred.

On July 4, 2006, 2 days after the fire, Detective Michaels, along with Detective Randy Slater, fire investigator Jones, and fire investigator Jim Long, interrogated Bowlin. According to Long, when they met with Bowlin, they had received reports from other people in the neighborhood that Bowlin had been throwing M-80's on the evening in question. During the 3 hour and 11 minute interview, Bowlin stated that one of his bottle rockets might have gotten away from him and started the fire.

At the end of the interview, Bowlin stated that he had shot a rocket on a thicker stick that had hit the house and might have gone down and landed inside the house. Bowlin stated that he thought the rocket might have been what went inside the house and started the fire. Bowlin stated that they might have been throwing M-80's before or right after he shot the rocket.

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The State charged Bowlin with first-degree felony murder under K.S.A. 21-3401 based on the underlying felony of aggravated arson. Alternatively, the State charged Bowlin with second-degree reckless murder in violation of K.S.A. 21-3402. The State also charged Bowlin with aggravated arson in violation of K.S.A. 21-3719. After preliminary hearing, the trial court bound Bowlin over for trial on all of the charged counts.

At a pretrial motions hearing, Bowlin's attorney stated that he was not going to move to suppress Bowlin's statements from the police interrogation on July 4, 2006, and he stipulated to the voluntariness of the statements.

The State amended the complaint to charge Bowlin with second-degree reckless murder. The first-degree felony murder and aggravated arson charges were dismissed. The State's original theory had been that Bowlin had thrown an M-80 towards the DeMotte house and that it had entered the house and started the fire. Nevertheless, after preliminary hearing, the State changed its theory to argue that Bowlin had thrown a dangerous illegal rocket in a residential area, that such conduct showed a disregard for the value of the human lives in that location, and that the illegal firework had gone in the DeMotte house and started the fire.

Bowlin waived his right to a jury trial, and the case proceeded to a bench trial. At trial, Tina Hodge, who was Bowlin's girlfriend and roommate, testified that she had been with Bowlin before the house fire started on July 2, 2006. According to Tina, several people, including Bowlin, Terry Miller, Nino Morse, Bowlin's niece Gina, and Gina's children, were shooting off fireworks in the alley outside her house that evening. Tina testified that there were bottle rockets (maybe larger ones), Saturn missiles, and firecrackers there that evening. Tina testified that Marcus Morse, Terry Morse, and Jeff Miller were also there that evening, but Terry Morse left at some point in the evening. Tina testified that there were people all over the alley, at the nearby park, and also 6

throughout the neighborhood shooting off fireworks that evening. Tina further testified that she heard bottle rockets, M-80's, and firecrackers throughout the evening.

Matthew Morse, who was one of Dawn DeMotte's sons, also testified that many fireworks, including bottle rockets and little dynamites, were being set off in the neighborhood on the night of July 2, 2006.

Tina testified that before the fire started that evening, Bowlin and his group ran out of fireworks, and she and Gina left to get more. According to Tina, Bowlin's group was sitting around and not shooting off any fireworks when she left. Tina did not arrive back at the scene until after the fire had started.

Terry Miller, who was Tina's uncle, testified that no one in their group had any M80's or larger bottle rockets. Miller further testified that no one shot anything towards the DeMotte house. According to Miller, they had shot off all of their fireworks and were waiting for Tina and Gina to bring them more fireworks when the DeMotte house went up in flames.

Jewell's mother, Dawn DeMotte, testified that Robert Garrison, who was living in the garage behind her house, woke her up on the evening of July 2, 2006, and got her out of the house fire. Garrison and all of DeMotte's other children, except for Jewell, were able to get out of the house safely.

DeMotte testified that before she had moved into the house, it had previously caught on fire, but Bowlin and her previous boyfriend, Adam, had helped fix it up. DeMotte testified that after Adam had moved out of her house, she and Bowlin were not friends and there had been some hard feelings between them. Nevertheless, DeMotte testified her children would play with Bowlin, and they had been shooting bottle rockets at each other across the alley on the Friday before the fire. According to DeMotte, 7

although the boys were mad when they were initially shooting bottle rockets at each other, it turned into a "ha-ha kind of" situation.

Two days after the fire, while at the hospital, Robert Garrison told a detective and a fire investigator that Bowlin had been throwing M-80's and had been yelling statements like, "I'll show you guys," and, "I'm gonna get you guys" on the evening of July 2, 2006. Nevertheless, at preliminary hearing, Garrison testified that he did not see Bowlin throwing any fireworks or igniting them towards the house directly. Moreover, when questioned by the prosecutor whether Bowlin had said anything, Garrison testified, "[N]ot that I recall."

At trial, however, Garrison changed his story again and testified that he could see Bowlin shooting some sort of rockets towards DeMotte's house on the evening of July 2, 2006. According to Garrison, he heard a loud explosion that evening when he was in Dawn's house. Garrison testified that when he got up and looked outside, he saw Bowlin and other people shooting off fireworks. According to Garrison, a short time later, he saw smoke coming out of the basement. Garrison further testified that there were a lot of fireworks going off that night, including M-80's, bottle rockets, and firecrackers, but he did not see anyone else shooting fireworks in the direction of DeMotte's house.

Terry Morse testified that when he talked with his nephew, Nino Morse, shortly after the fire, Nino told him that Terry Miller was saying that Nino had started the fire. Nino then told Terry Morse that Bowlin had caused the fire. Nino told Terry Morse that Bowlin lit a bottle rocket and said, "[H]ere's how a professional does it" and then threw it. Nino told Terry Morse that he saw the rocket go inside the DeMotte house. Nino further stated to Terry Morse that he and Bowlin ran over to a tree and watched as the fire started. When questioned at trial about why neither he nor Nino went to the police about Bowlin's involvement in the house fire, Terry Morse stated that both he and Nino had warrants out for their arrest at that time. Although Terry Morse and Nino Morse told 8

Jewell's father, Patrick Morse, about Nino's version of events, Patrick Morse did not go to the police with this information.

Approximately 3 months after the fire and after the preliminary hearing, Dawn DeMotte told fire investigator Jones that she had heard that Nino Morse had told Patrick Morse some information about the fire. Upon being interviewed, Nino initially told Jones that a firework thrown by Bowlin had gone inside the house. Nevertheless, when questioned further about whether it went in the house, Nino told Jones that the firework did not go in the house but that it hit by the base of the house. Nino then told Jones that he could not really see the firework hit and that it just "kind of went over by the base." Nino said that he had been smoking marijuana all day on July 2, 2006.

At trial, Nino testified that he had been drinking since he woke up on the morning of July 2, 2006, and that "[t]hose are drunken memories." Nino further testified that he smoked a quarter of an ounce of marijuana on the morning of July 2, 2006. According to Nino, he could not be very sure about exactly what happened during the incident in question because he was "pretty high and pretty drunk."

Nino testified that he, Bowlin, and Terry Morse were drinking on the evening of July 2, 2006, and shooting off fireworks, like Black Cats and 9-inch bottle rockets. Nino testified that he had told Terry Morse and Patrick Morse, who was Jewell's father, that he had seen Bowlin shoot a large bottle rocket, that he had seen the rocket fly towards the left side of the DeMotte home, and that he thought it had caused the fire. During his testimony, Nino denied that Bowlin ever broke the stick off the firework or that Bowlin had said anything like, "this is how a professional does it," before he shot the firework. According to Nino, when the firework went off, he and Bowlin jumped in the gate of his truck and watched to make sure that nothing caught on fire. Nino testified that they saw no smoke or fire, so they continued what they were doing.

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According to Nino, no more than 10 minutes after Bowlin shot the rocket, they noticed that the DeMotte house was on fire. Nino testified that during those 10 minutes, everyone in the neighborhood was lighting off fireworks and that there were a lot of big explosions.

At the conclusion of the bench trial, the trial court found Bowlin guilty of the lesser offense of involuntary manslaughter. After the bench trial, the trial court allowed Daniel Cahill to withdraw as Bowlin's counsel because Bowlin believed that Cahill had been ineffective. The trial court appointed new counsel for posttrial motions and sentencing.

Bowlin moved for a new trial and argued that his attorney had been ineffective in failing to call witnesses in Bowlin's behalf and in improperly persuading Bowlin to waive a jury trial. After hearing the parties' arguments and testimony from Cahill, the trial court denied Bowlin's ineffective assistance of counsel claims. The trial court then sentenced Bowlin to 57 months in prison.

On appeal, this court remanded the case to the trial court for an additional hearing on Bowlin's ineffective assistance of counsel claims. By the time of the remand hearing, Cahill had been appointed as a judge in Wyandotte County District Court, the same district court where the remand hearing was being held, and had been assigned to the child in need of care court.

Additional ineffective assistance of counsel claims presented at the remand hearing involved Cahill's failure to move to suppress Bowlin's interrogation statements and Cahill's failure to move for another preliminary hearing after the judge made biased statements. After hearing testimony from both Cahill and Bowlin at the remand hearing, the trial court found that Bowlin had not met the first prong of the test for ineffective assistance of counsel and denied his claims. 10

Ineffective Assistance of Counsel

On appeal, Bowlin first argues that, by his defense counsel's conduct, he was denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. Bowlin points to the following alleged improper conduct by his defense counsel: (1) introducing Bowlin's highly prejudicial interrogation statement into evidence and failing to suppress the statement; (2) failing to present witnesses on Bowlin's behalf, including potential defense witnesses and a fire expert; (3) failing to challenge the trial judge's ruling from the preliminary hearing when the judge made biased comments before making his ruling; and (4) advising Bowlin to waive his right to a jury trial.

A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).

To merely surmise with the benefit of hindsight, that another attorney may have tried the case differently is insufficient. Rather, before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential and requires consideration of the totality of the 11

evidence before the judge or jury. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. To establish prejudice, the defendant must show a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Harris, 288 Kan. at 416.

Admission of Bowlin's Interrogation Statements

Bowlin maintains that his defense counsel was deficient in not attempting to suppress his incriminating interrogation statements, in which he took responsibility for starting the fire, and in actually introducing the statements into evidence at trial. Bowlin contends that there were two independent bases for suppressing his statements: (1) Bowlin was denied his right to counsel during the interrogation; and (2) his statements were involuntary.

Assertion of Right to Counsel

Bowlin maintains that during his police interrogation, he asserted his right to an attorney under the Fifth Amendment to the United States Constitution and, therefore, any statements made after that assertion should have been suppressed.

Specifically, after 2 hours of interrogation, Bowlin told the interrogators that he thought he was going to have to get a lawyer:

Bowlin: "I think I'm going to have to get a lawyer." Officer: "Get a lawyer. Get a lawyer." Bowlin: "What else can I do, I am going to jail anyway?"

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Officer: "It doesn't make a difference if you go to jail. It's how you're charged that you need to worry about. And I tell you what, your lawyer--" Bowlin: "I don't know what to do, man." Officer: "Okay, let's slow it down."

Bowlin's statement--"I think I'm going to have to get a lawyer"--has been found to be ambiguous or equivocal. See State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997) ("I think I need an attorney.").

Nevertheless, a moment later, the interviewing officer returned to Bowlin's earlier request for an attorney and asked Bowlin a clarifying question to determine whether Bowlin desired to have counsel present:

Officer: "Do you need a lawyer?" Bowlin: "Yeah." Officer: "Fucking-A right you need a lawyer." (Emphasis added.)

The interviewing officer deflected Bowlin's request for an attorney with this misrepresentation:

Officer: "But you know what your lawyer's going to tell you to do? Don't say shit. Fuck 'em. Don't say shit. Let's go to trial. And when we go to trial, this is what you're looking to fight."

After stating that Bowlin's trial would be held approximately 8 or 9 months in the future, the interviewing officer emphasized to Bowlin that he was going to lose his chance to tell his side of the story:

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Officer: "When that day comes by, you know what I always take pleasure in telling people. Once I leave the courtroom, I am going to look you in the eye and you will know that I have given you the opportunity to tell your side of the story before we went to all this. Alright." Bowlin: "What I have been trying to tell you." Officer: "Yeah, you have been trying to tell me

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