Opinion
No. 110,305.
2014-12-24
Anthony Ray BARNES, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., GREEN and BUSER, JJ. PER CURIAM.
Anthony Ray Barnes was convicted by the district court of first-degree premeditated murder and aggravated assault. He was sentenced to life in prison without the possibility of parole for 25 years for the murder conviction. Barnes also received a consecutive sentence of 14 months' imprisonment for the aggravated assault conviction.
Barnes filed a pro se K.S.A. 60–1507 motion alleging ineffective assistance of trial counsel among other claims. The district court conducted a preliminary hearing and dismissed the motion “because the motions, files, and records of the case conclusively show that [Barnes] is not entitled to relief.” Barnes appeals, contending the district court erred in failing to hold an evidentiary hearing on his claims.
We reverse in part and remand with directions to the district court to conduct an evidentiary hearing on Barnes' claim that his trial counsel was ineffective in presenting a mental disease or defect defense, including but not limited to his trial counsel's failure to present a medical expert as a witness at trial. We affirm in part the district court's summary denial of the other claims raised by Barnes in his K.S.A. 60–1507 motion. We also find Barnes' newly raised claim that his K.S.A. 60–1507 counsel was ineffective is without merit.
Factual and Procedural Background
The Supreme Court affirmed Barnes' convictions and sentences in State v. Barnes, 293 Kan. 240, 262 P.3d 297 (2011). In that decision, the Supreme Court summarized the facts of the case:
“Barnes stood near pay phones outside the QuickTrip, smoking a cigarette. A customer, Prentiss Cherry, went into the QuickTrip to buy a soda. As Cherry paid for the soda, he joked with the QuickTrip clerk, Brian Hall. As Cherry left the store and walked toward his car, Barnes walked up to him with a gun and told him to stop laughing. Cherry backed away from Barnes and fled toward the gas pumps. Barnes did not follow Cherry; instead, he walked into the store. Once inside, Barnes walked up to the counter, raised his gun, and shot Hall in the head. Barnes then left the store and resumed standing by the pay phones, smoking another cigarette. Hall died from his head wound.
“Shortly after the shooting, police arrived on the scene. Police Chief Norman Williams first engaged with Barnes, telling him to drop his gun. Barnes did not immediately drop his gun, instead finishing his cigarette and indicating to the surrounding police that he would shoot one of them. According to one officer, Barnes also said something about the police not helping him with the situation with his kids. Another officer testified that Barnes said the police did not understand about grief and did not care about his kids. After Barnes finished his cigarette, he placed his gun on a nearby curb and turned around to put his hands on the exterior wall of the store.
“After his arrest, Barnes waived his Miranda rights and confessed to shooting Hall and menacing Cherry.” 293 Kan. at 241–42.
Barnes would later tell a detective that he thought the store clerk and another person inside the store were laughing at him.
Barnes suffers from chronic paranoid schizophrenia. Before trial, he filed a motion to determine his competency to stand trial. Constance D. Gaston, Ph.D., examined Barnes and noted a diagnosis of paranoid schizophrenia and intermittent explosive disorder. Dr. Gaston opined that Barnes was competent to stand trial, however, provided he continued to take medications to treat his mental illness. Based on this expert report, the district judge found Barnes competent to stand trial.
Barnes notified the court of his intent to pursue a mental disease or defect defense pursuant to K.S.A. 22–3219. In particular, Barnes' defense was that “because of his paranoid schizophrenia, he was unable to form the requisite intent for each of the charged offenses.” 293 Kan. at 244.
The trial court appointed Dr. John Wisner to conduct a psychological evaluation. The doctor's report is not in the record on appeal, but our Supreme Court reproduced at least part of it in its opinion. See Barnes, 293 Kan. at 253–54. Dr. Wisner opined that Barnes suffers “ ‘from Chronic Paranoid Schizophrenia” ‘ which, at the time of the shooting, was at its “ ‘height in terms of the extent and intensity of symptoms.’ “ 293 Kan. at 253. According to Dr. Wisner, these symptoms were “ ‘among the most painful and most chronic I have encountered in 30 years of clinical practice.’ “ 293 Kan. at 253. Dr. Wisner believed Barnes' condition, “ ‘precluded any premeditation or specific murderous intent against any specific victim.’ “ 293 Kan. at 254.
Barnes' trial began as a jury trial. After the State rested its case-in-chief, Andy Meyer and Rose Barnes testified on Barnes' behalf. Meyer worked for the ComCare Crisis Intervention Service and testified about three phone calls Barnes had made to Meyer at the crisis center. Meyer characterized the calls as bizarre. Rose Barnes, Barnes' ex-wife, testified about his bizarre and paranoid behavior, including three suicide attempts. She testified that after a traffic accident in 1988, Barnes was continually paranoid that people were laughing at him. She also said he believed people were trying to kill him and that a tracking device had been surgically implanted in his body. At this point in the jury trial, Barnes waived his right to a jury, the jury was excused, and the proceeding continued as a bench trial.
The trial court's appearance docket shows that Barnes' appointed counsel, Phillip R. White, subpoenaed Dr. Wisner to testify at trial. Inexplicably, however, White did not present Dr. Wisner at trial to explain and expound upon his expert opinions tending to exculpate Barnes from criminal liability due to his mental condition. Instead, White offered Dr. Wisner's written report summarizing his expert opinions along with certain foundational materials relied on by the doctor. The State did not object to the admission of Dr. Wisner's report.
White also introduced the transcript of a police interview of Barnes' sister, Regina Billingsly, who reported that Barnes had not taken his medications for paranoid schizophrenia for several months prior to the shooting. She reported that Barnes often talked to himself. He would stay up all night and rant about how he was going to shoot somebody.
Of note, at the conclusion of the defense case, the State did not offer any expert evidence—written or testimonial—in rebuttal to any of the expert or lay evidence regarding Barnes' mental state.
The trial judge found Barnes guilty, stating in part:
“I have had a chance to review the things. Now, obviously, I did not read every single bit of the things that ... Dr. [Wisner] reviewed, but I want to say that it is very clear that Mr. Barnes has a long and documented history of mental illness.
“I agree with the [S]tate, there is no contesting whether or not Mr. Barnes is mentally ill now, and has been mentally ill for some time.
“It's a tragic consequence of budget cutting by people that hold the purse strings that we don't have sufficient facilities for those people of low income to seek the treatment they need. The records indicate that Mr. Barnes, upon his return from—I can't remember if it was from Nevada. I heard once it was Nevada and once California—immediately called ComCare upon his return, and they wouldn't put him back on his meds. And I imagine that what happened is, is that until he made an appointment, and he couldn't get one for quite sometime [ sic ], I imagine, that he deteriorated and spiraled during that period of time to the point that he was incapable of addressing his other needs when the appointment finally did come up.
“I can't argue that he isn't mentally ill. Is he guilty under our law, though?
“And our laws are very specific. The law says that ... in order for me to find him not guilty by reason of mental disease or defect, I must find, in Count One, that he lacked the intent necessary as a result of his mental illness to form premeditation to carry out the killing.
“As far as the aggravated assault charge, I must find ... he lacked the intent necessary to carry out the crime of aggravated assault. That's the standard that must be applied here.
“I respect Dr. [Wisner's] qualifications and his credentials. However, for him to, many, many months later, try to ascertain what Mr. Barnes' mental state was at the time of the killing, and at the time of the assault, would be—it's simply a conclusion, an opinion based on the information that he was given.
Hearing [Barnes J statement to [the detective], ... hearing the observations made of him by the people who were present at the time, those are much more clear in defining, in my mind, in deciding whether or not he was suffering such [delusions] that would negate that intent.
“The fact remains that he did not talk about any [delusions]. He did not talk about hearing voices. His actions, his demeanor, all of those things, while they are not the product of a well mind, it is clear to me that he had the sufficient state of mind to form the intent required for both of those crimes.”
Barnes did not raise an ineffective assistance of counsel claim on direct appeal. In his sworn K.S.A. 60–1507 motion, however, Barnes alleged, in part, that White “failed to call a subpoenaed expert medical doctor prior to the bench trial,” and “failed to provide his client with the best defense for a mental health patient .” Barnes listed “Dr. Wisner[ ]—report” and “Phillip White—lawyer” as witnesses and evidence upon which he would rely. He prayed that “[b]ased upon the ineffectiveness of my lawyer through the court proceedings and during the bench trial I am asking for a new trial.”
The district court appointed Michael C. Brown to represent White in the K.S.A. 60–1507 action. Brown did not file an amendment to Barnes' motion or a written memorandum in support of it. When Brown appeared for the preliminary hearing, he mentioned Barnes' ineffective assistance of counsel claim at the end of his argument:
“And then he alleges ineffective assistance of counsel. And that goes back to not adequately presenting a defense as far as his mental state is concerned.
“I think some of the issues you have to entertain is whether or not he's utilizing this [motion] as a substitute for direct appeal, whether or not some of the issues are indeed moot as a result of the Supreme Court decision, and essentially whether or not his trial counsel's representation was ineffective to the extent that he had virtually [ sic ] affected the outcome of the trial.
“Judge, I do feel like he has raised substantial and compelling issues that would warrant relief, as well as an evidentiary hearing.”
The district court denied relief, stating with regard to allegations of ineffective assistance of counsel: “[T]hey are conclusory. There is no reference to or support by any type of evidence that would lead the Court to believe or guide the Court to find that there was any bias or prejudice or a need for further hearing on this matter. So the motion's denied.” In a journal entry filed later, the district court memorialized that part of its ruling regarding the mental illness issue:
“[Barnes' ineffective assistance of counsel claim] regarding the failure to ... call an expert medical doctor [is] conclusory and [is] contrary to the court record. As noted on direct appeal, [White] secured a psychiatric report and had it admitted into evidence. [Barnes] has even argued that some of the findings in the report were uncontested. [White] also presented the testimony of lay witnesses on the subject of [Barnes'] mental health. These claims cannot be the basis for a finding of ineffective assistance of counsel.”
Ineffective Assistance of Trial Counsel
At the outset, on appeal, Barnes has raised only ineffective assistance of counsel arguments relating to his mental disease and defect defense. As a result, the remaining issues raised by Barnes in his K.S.A. 60–1507 motion presented to the district court but not argued on appeal are deemed waived and abandoned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
Next, we set out our standards of review. Since the district court did not consider evidence at the preliminary hearing but ruled on the motion, files, and records of the case, our review is de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
The district court was required to grant Barnes an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” K.S .A. 60–1507(b).
“It is error to deny a K.S.A. 60–1507 motion without a hearing where the motion alleges facts that do not appear in the original record but that, if true, would entitle the movant to relief, and the motion identifies readily available witnesses whose testimony would support such facts or othef sources of evidence.” Swenson v. State, 284 Kan. 931, Syl. ¶ 3, 169 P.3d 298 (2007).
For example, when a K.S.A. 60–1507 movant alleges facts raising a substantial issue regarding adequacy of counsel, a district court may not deny an evidentiary hearing based on an assumption that counsel's decisions were strategic. See 284 Kan. at 939–40.
The framework for analyzing ineffective assistance of counsel claims has been frequently stated by our Supreme Court. Most recently the Supreme Court stated:
“The Sixth Amendment to the United States Constitution guarantees in all criminal prosecutions that ‘the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.’ To be meaningful, the right to counsel guaranteed by these provisions necessarily includes the right to effective assistance of counsel. This Sixth Amendment right to counsel is made applicable to state proceedings by the Fourteenth Amendment to the United States Constitution.”
“To support a claim of ineffective assistance of counsel based upon deficient performance, a criminal defendant must prove that (a) counsel's performance was deficient; and (b) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. The benchmark for judging any claim of ineffectiveness must be whether the attorney's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.”
“The first prong of the test for ineffective assistance of counsel based upon allegations of deficient performance requires a defendant to show counsel's representation fell below an objective standard of reasonableness, considering all the circumstances....”
“Courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”
“Once a criminal defendant has established counsel's deficient performance, the defendant must also establish prejudice by showing that there is 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. A court hearing an ineffectiveness of counsel claim based upon deficient performance must consider the totality of the evidence before the judge or jury.” State v. Cheatham, 296 Kan. 417, Syl. ¶¶ 2–6, 292 P .3d 318 (2013).
On appeal, Barnes contends he “made a prima facie showing that an evidentiary hearing was warranted on his claims of ineffective assistance of trial counsel” regarding White's investigation and failure to have a medical expert testify at trial. Noting his “sole defense was that his mental health issues precluded him from forming the necessary intent to be convicted,” Barnes contends that “there is no evidence in the record as to why ... White did not [call Dr. Wisner] to testify.” The State fails to address this specific point on appeal.
In his motion, Barnes identified White and Dr. Wisner as witnesses in support of his ineffectiveness claims. Barnes' witness designations make good sense. White should be able to testify regarding his investigation into Barnes' mental illness; what strategy, if any, he pursued in presenting the defense; and why he failed to call Dr. Wisner as an expert witness after subpoenaing him to appear at trial. With regard to Dr. Wisner, he should be able to testify about his expert opinions, what if any arrangements White made for him to testify, and what information he might know regarding the reason why he did not testify after being subpoenaed by White. Additionally, Dr. Wisner's expert opinions in response to some of the trial court's conclusions that Barnes did not appear delusional at the time of the incident (although he did inform a detective that he thought the two victims were laughing at him) could be enlightening and establish why the failure to present live expert testimony was ineffective and prejudicial. Of course, there may have been strategic reasons for not calling Dr. Wisner. But until a hearing is held and testimony is presented, we have only speculation and conjecture, which are poor substitutes for evidence.
With regard to the issue of prejudice, it is an understatement to observe that expert psychiatric and/or psychological testimony is essential to the presentation of a mental disease or defect defense. Well-respected litigation and evidence manuals we have reviewed emphasize the critical importance of live expert testimony in cases such as this. See 2 Bailey and Fishman, Criminal Trial Techniques § 35:13 (2009); 3 Wharton's Criminal Evidence §§ 13:30, 13:31 (Berman and Hollander, 15th ed., 1999); 41 Am Jur. Proof of Facts 2d 615 §§ 37–49. One commentator, Judith A. Miller, has stated:
“At trial the psychiatrist is the linchpin of the case, for both sides. While the defense can present the defendant's background through some lay witnesses-parents, siblings, previous medical doctors, etc.—the heart of the case is the psychiatric testimony. The psychiatrist tells the defendant's story from day one, bolstered where appropriate by writings, tapes, and other physical evidence that helps to confirm the historical course of the defendant's mental illness.” Rossi, Expert Witnesses, ch. 20, p. 517 (A.B.A.1991).
Similarly, when ruling an indigent defendant may be “entitled to the assistance of a psychiatrist,” Ake v. Oklahoma, 470 U.S. 68, 87, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court explained:
“[W]hen the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense. In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party's psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant's mental state, psychiatrists can identify the ‘elusive and often deceptive’ symptoms of insanity, Solesbee v. Balkcom, 339 U.S. 9, 12[, 70 S.Ct. 457, 94 L.Ed. 604] (1950), and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense.” 470 U.S. at 80–81.
To be clear, we do not hold that trial testimony by a psychiatrist is necessarily mandatory for competent representation in cases like the present one. There may be appropriate circumstances where defense counsel could reasonably rest with admission of a written report. But we cannot evaluate White's decision not to place Dr. Wisner or another competent expert on the stand to establish that Barnes, “as a result of mental disease or defect, lacked the mental state required as an element of the offense charged,” without some minimal factual basis. See K.S.A. 22–3220; State v. Jorrick, 269 Kan. 72, Syl. ¶ 10, 4 P.3d 610 (2000). Given the centrality of Barnes' mental state to his defense, and the importance of expert testimony in such cases generally, we cannot presume any error was harmless. Accordingly, we hold the motion, files, and records of the case provided sufficient grounds to require an evidentiary hearing on the issue of defense counsel's effectiveness in presenting this defense.
We reverse in part and remand with directions to the district court to conduct an evidentiary hearing on Barnes' claim that his trial counsel was ineffective in presenting a mental disease or defect defense, including but not limited to his trial counsel's failure to present a medical expert as a witness at trial. We affirm the summary denial of the other claims raised by Barnes.
Ineffective Assistance of K.S.A. 60–1507 Counsel
For the first time on appeal, Barnes asserts he was denied his right to effective assistance of K.S.A. 60–1507 motion counsel. He claims that his motion counsel was ineffective because he conceded issues and failed to make sufficient arguments based on the record. Additionally, he alleges ineffectiveness because his motion attorney failed to argue that the trial judge should have recused herself or “been asked to be removed” because Barnes made incriminating statements to her prior to the commencement of the bench trial.
Our Supreme Court has held that “60–1507 movants who have counsel are entitled to the effective assistance of that eounsel.” Albright v. State, 292 Kan. 193, 207, 251 P.3d 52 (2011). The extent of a movant's statutory right to effective assistance of counsel during a K.S.A. 60–1507 proceeding presents a question of law over which we exercise unlimited review. Robertson v. State, 288 Kan. 217, 227, 201 P.3d 691 (2009).
As a general rule, we will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal. Alford v. State, 42 Kan.App.2d 392, 394, 212 P.3d 250 (2009), rev. denied 290 Kan. 1092 (2010). But if the quality of a K.S.A. 60–1507 counsel's assistance can be determined solely from the record on appeal, we may address the issue ourselves. See Robertson, 288 Kan. 217, Syl. ¶ 6; Alford, 42 Kan.App.2d at 394.
We have reviewed Barnes' motion and the record of the K.S.A. 60–1507 proceeding and we are persuaded that motion counsel provided the minimal level of adequate representation required under the circumstances. Importantly, several of the issues Barnes raised in his motion had previously been resolved by our Supreme Court on direct appeal. Barnes' K.S.A. 60–1507 motion counsel identified these issues to the district court. Even assuming this was ineffective, we find no legal prejudice because such issues generally are not properly reprised in a K.S.A. 60–1507 motion. See Supreme Court Rule 183(c)(3) (2013 Kan. Ct. R. Annot. 278). The other issues (apart from those alleging ineffective assistance of trial counsel in presenting Barnes' defense) are clearly vague, conclusory, and without merit given the record before us. Hence, even if there was ineffectiveness, there is no showing of prejudice.
Barnes' new claim on appeal that his K.S.A. 60–1507 motion counsel was ineffective for failing to argue that the trial judge should have recused herself or sought to be removed because of incriminating statements made to her by Barnes prior to the commencement of the bench trial is without merit. First, as noted by the State, Barnes never raised this issue in his K.S.A. 60–1507 motion. Given this fact, it is difficult to find motion counsel ineffective for not arguing an issue not raised by the movant. Second, on appeal, Barnes provides no on-point legal precedent in support of his legal contention. Third, the incriminating comments made by Barnes occurred during a colloquy with the district judge while discussing Barnes' request to waive his right to the jury trial. Barnes was not sworn and his comments were not evidence. Moreover, there is nothing in the record to indicate the trial judge based her verdict in any way on these comments. For all these reasons, this claim fails.
Finally, although motion counsel's argument in support of an evidentiary hearing based on trial counsel's ineffective assistance in presenting Barnes' defense was both cursory and minimal, it did not reach the level of ineffectiveness we criticized in Campbell v.. State, 34 Kan.App.2d 8, 13, 114 P.3d 162 (2005). For all of the reasons stated, we find that Barnes has failed to show that K.S.A. 60–1507 counsel was ineffective and that any claimed ineffectiveness resulted in prejudice.
Accordingly, we reverse in part and remand with directions to the district court to conduct an evidentiary hearing on Barnes' claim that his trial counsel was ineffective in presenting a mental disease or defect defense, including but not limited to his trial counsel's failure to present a medical expert as a witness at trial. We affirm in part the summary denial of the other claims of error raised in Barnes's K.S.A. 60–1507 motion. We also hold that Barnes' claim of ineffective assistance of his K.S.A. 60–1507 motion counsel is without merit.
Affirmed in part, reversed in part, and remanded with directions. McANANY, J., dissenting:
I am compelled to dissent from the majority's opinion that the district court erred in not requiring an evidentiary hearing on Barnes' claim that his trial counsel was ineffective for not calling Dr. John Wisner to testify at trial.
As the majority notes, in mid-trial Judge Rebecca Pilshaw discharged the jury at Barnes' request and proceeded with a bench trial. Barnes' counsel then introduced the report of Dr. Wisner, who had examined Barnes about 10 months before trial. Also admitted were the documents Dr. Wisner relied upon in forming his opinions. Dr. Wisner opined that Barnes suffers from chronic paranoid schizophrenia, a condition which, at the time of the shooting, “was at it's ( sic ) height in terms of the extent and intensity of symptoms.” According to Dr. Wisner,
“Anthony Barnes' symptoms (sexual persecutory, and conjugal delusions and hallucinations with feelings of reference and influence) are among the most painful and most chronic I have encountered in 30 years of clinical practice. He also evidences deficits in logical sequencing of thought and decision-making. Symptoms in this category are well recognized to be among those most frequently associated with unpredictable and random, non purposeful acts of violence.”
As expressed in Dr. Wisner's report, Barnes' mental state at the time of the shooting was such that “[ m]ens rea in the sense of willful, intentional, or however briefly premeditated murder was not possible.”
Dr. Wisner's opinions found factual support in documents and testimony introduced at trial. These consisted of the transcript of a police interview of Regina Billingsly, Barnes' sister; the testimony of Andy Meyer from the ComCare Crisis Intervention Service; and the testimony of Rose Barnes, Barnes' former wife.
Though Barnes now asserts that defense counsel should have had Dr. Wisner present to testify in person, I find nothing before us to suggest that Dr. Wisner's live testimony would have added anything to the narrative report of his findings and conclusions.
The majority correctly notes the important role that psychiatric evidence can play in cases such as this. But the majority draws what I believe to be an unwarranted bright line in a court-tried case between oral testimony and a comprehensive narrative report of psychiatric findings and conclusions. The treatises cited by the majority all address the use of psychiatric testimony in developing an insanity defense. But none suggests that the presentation of psychiatric findings and conclusions through a narrative report, particularly in a court-tried case, is somehow inherently deficient. As noted by the majority, “ ‘[t]he psychiatrist tells the defendant's story.” 'But I find nothing inherently ineffective in telling that story in a court-tried case through a well-drafted and comprehensive narrative report of the examining psychiatrist.
Most lawyers and other wordsmiths find that expression through the written word requires a level of attention and focus that is often lost in an oral presentation. Expert witnesses invariably rely on their previously prepared narrative reports in presenting their findings and opinions at trial. The findings and opinions of expert witnesses are quite frequently presented at trial in both jury and court-tried cases through the reading of deposition testimony rather than the live testimony of the witness. I would not conclude that there is anything inherently ineffective in trial counsel placing expert findings and conclusions before the factfinder in the manner employed by trial counsel here, particularly when the factfinder is the trial judge rather than the jury.
Barnes does not contend Dr. Wisner had additional favorable opinions regarding Barnes' mental state that were not contained in the written report. There were no facts or conclusions missing or misstated here. Otherwise, we certainly would have expected Barnes to identify how Dr. Wisner's report was deficient and how his oral testimony could have clarified any error or omission. By introducing Dr. Wisner's report rather than calling him to testify, Dr. Wisner's opinions, which were clearly quite favorable to Barnes, could not be challenged by the State through cross-examination. From the excerpts of that report gleaned from the record, it is clear that Dr. Wisner's narrative report was not a flat and dry toast clinical recitation, but a forceful expression of the depth of Barnes' psychosis. To me, the mere fact that Barnes' lawyer used Dr. Wisner's narrative report rather than his oral testimony is insufficient to show a colorable claim of ineffective trial counsel. I would affirm the district court's ruling in this regard.