A Franklin County man convicted of second-degree murder in the death of a 24-year-old Ottawa man in July 2010 is asking the Kansas Supreme Court to review whether a district court judge and the state Court of Appeals mistakenly denied his claims that his attorney ineffectively represented him at trial.
John D. Balbirnie, now 53, was sentenced to 23 years in prison in May 2011 after a Franklin County jury found him guilty of killing Paul Nicholson. According to court documents, Balbirnie, Nicholson and several other people were hanging out at an Ottawa apartment on July 28, 2010, when a fight occurred. Most of the individuals had been drinking, according to witness testimony.
Witnesses testified Balbirnie, who was 44 at the time, pulled a pocket knife and stabbed Nicholson several times. However, they couldn’t agree whether Nicholson was stabbed in the chest, back or neck. Seriously injured, Nicholson staggered from the apartment and fell down a flight of stairs. A witness would later testify that once Nicholson got to his feet, the witness saw Balbirnie stab the man once in the chest. Law enforcement officers would later find Nicholson dead outside the apartment. During the April 2011 trial, a forensic pathologist testified the injury responsible for killing Nicholson was a stab wound to the chest. The knife severed Nicholson's aorta and penetrated his heart.
Initially, Balbirnie was charged with first-degree, premeditated murder, but a Franklin County jury convicted him of second-degree, intentional murder. He was later sentenced to 272 months in prison.
A second man involved in the murder, Brandon Ellsmore, of Ottawa, was sentenced to nearly four years in prison for reckless aggravated battery after admitting he stabbed Nicholson in the back. Ellsmore, who eventually pleaded guilty to a lesser charge and testified against Balbirnie, was released from prison in May 2015. He is currently on parole in Anderson County for violating the terms of the state's offender registration act, according to the Kansas Department of Corrections website.
In 2013, Balbirnie appealed his sentence. However, the Court of Appeals upheld the district court sentence, and the Supreme Court denied his petition for review. Two years later, Balbirnie filed a motion claiming his attorney provided ineffective assistance. The district court conducted an evidentiary hearing but denied the motion. On appeal, Balbirnie challenged his conviction, alleging his counsel provided inadequate representation. The Court of Appeals responded, stating Balbirnie's attorney erred by failing to get a recording of a 911 call to police admitted into evidence. During that call, a witness said her fiancé stabbed Nicholson. While the Court of Appeals said the recording would have been important evidence to present to the jury, it held that Balbirnie failed to show a reasonable likelihood the trial’s outcome would have been different.
Balbirnie’s petition for review will be heard by the Supreme Court on Thursday. The day’s docket begins at 9 a.m., and cases will be heard in the Supreme Court courtroom on the third floor of the Kansas Judicial Center in Topeka. All Supreme Court oral arguments are also broadcast live over the internet. To watch proceedings live online, follow the Watch Supreme Court Live! link on the court’s website at www.kscourts.org.
The Supreme Court of Kansas meets periodically to act on petitions for review, and the results of those requests are available online. To render judgments, Supreme Court justices study petitions and arrive at a recommendation for action by either granting, denying or holding them. When a petition for review is granted, the Supreme Court considers all issues the petition alleges were wrongly decided by the Court of Appeals.
Balbirnie is currently serving his time as a low-medium custody offender at Norton Correctional Facility. According to the Kansas Department of Corrections, his earliest possible release date is Dec. 19, 2029.