Failure to introduce exculpatory 911 call was ineffective assistance of counsel

Gerald E. Wells won in Balbirnie v. State, No. 115,650 (Kan. July 24, 2020), obtaining a new trial in a Franklin County second-degree murder prosecution. After the COA affirmed the conviction on direct appeal, Mr. Balbirnie claimed IAC in a motion pursuant to K.S.A. 60-1507. In particular, Mr. Balbirnie claimed that his appointed trial counsel had failed to admit a 911 recording where the caller identified someone other than him as the killer.

The COA had held that Mr. Balbirnie showed defective performance but, in light of eyewitness testimony and Mr. Balbirnie's recorded statements, concluded that he failed to establish prejudice. The KSC disagreed with the latter finding:

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.

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.

. . . .

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. 

Because of what the KSC described as "many credibility and evidentiary issues,"  it concluded that "the result of Balbirnie's trial is unreliable because of a prejudicial breakdown in the adversarial process." The KSC reversed the conviction and remanded for a new trial.