Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge.
SYLLABUS BY THE COURT 1. To establish ineffective assistance of counsel, a defendant must establish the following under the totality of evidence before the jury: (1) that counsel's performance was deficient because counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the Constitution of the United States; and (2) that counsel's deficient performance prejudiced the defense because his or her errors deprived the defendant of a fair trial. 2. Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgment. 3. Under the facts of this case, trial counsel's failure either to conduct an investigation or to call witnesses to challenge or refute the State's key witnesses'
testimony, establishing the time of the victim's beating, prejudiced defendant's theory of defense, which deprived defendant of a fair trial.
The opinion of the court was delivered by: Green, J.:
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
Following a trial by jury, Russell Lee Shumway was convicted of intentional second-degree murder and attempted theft and sentenced to 620 months' imprisonment. His convictions were later affirmed by this court on direct appeal. State v. Shumway, 30 Kan. App. 2d 836, 50 P.3d 89, rev. denied 274 Kan. 1117 (2002).
Shumway filed a habeas corpus motion under K.S.A. 60-1507 alleging that he was denied effective assistance of counsel when trial counsel failed to call two alibi witnesses. Later, Shumway filed an amended habeas corpus motion under K.S.A. 60-1507 maintaining that he was denied effective assistance of counsel because his trial counsel failed to call several witnesses who would have supported his defense theory. The trial court dismissed Shumway's motions without an evidentiary hearing. On appeal, this court reversed the trial court's decision and remanded to the trial court with directions to grant Shumway an evidentiary hearing on his first claim (included in the original, timely filed habeas corpus motion) and to determine whether Shumway's remaining claims (brought in the amended habeas corpus motion) should be considered to prevent manifest injustice.
See Shumway v. State, No. 102,027, 2010 WL 1462712 (Kan. App. 2010) (unpublished opinion). After an evidentiary hearing, the trial court denied both motions.
Shumway's principal argument on appeal is that his trial counsel's performance- in failing to call two alibi witnesses, in failing to call a witness who would have contradicted the testimony of the State's two principal witnesses, and in failing to call two witnesses who would have supported his defense theory-was not only deficient but also prejudicial to his defense, which deprived him of a fair trial. Thus, Shumway contends that the trial court erred (1) when it concluded that Shumway's trial counsel's decision not to call two alibi witnesses was reasonable trial strategy and (2) when it concluded that Shumway's remaining ineffective assistance of counsel claims should be dismissed because Shumway had failed to show manifest injustice. Finding merit in Shumway's first and second arguments, we reverse his convictions and remand for a new trial.
The Death of Mitchell Davis
Mitchell Davis was found dead in the backyard of his home around noon on October 7, 1999. The cause of death was blunt force trauma to the head; his injuries were consistent with having been struck with a two-by-four board. Davis' blood was found on a two-by-four board in the alley near his home, hidden under a bush. No fingerprints were found on the board.
The coroner could not establish a time of death. Two neighbors of Davis saw him alive with a young woman the evening of October 6, between 11 p.m. and 11:30 p.m. One neighbor identified the woman as "Angie." Another person saw Davis on his front porch around midnight.
It was determined that Davis was under the influence of methamphetamine when he died. He had both amphetamine and methamphetamine in his system, and he had a syringe in his pocket.
The Case Against Russell Shumway
John Finney alleged that he saw Shumway kill Davis. He testified that on the evening of October 6, 1999, at about 10:30 p.m., he and Shumway left their residence to walk to North Topeka. After walking about 10 minutes, and traveling two to three blocks, they found themselves in the alley behind Davis' residence. They saw some bicycles in Davis' backyard and decided to steal them. When Finney discovered that the bicycles were chained, he suggested that they leave. After Finney walked out into the alley, he heard a moan from the backyard. He looked over the fence and saw Shumway hitting Davis with a board. Finney ran back to their residence. It took him 4 to 5 minutes to run this distance. His wife, Mary Finney, Shumway's wife, Catherine Dennis, her daughter, Angela Dennis, and Angela's two small children were there when he arrived. He told the three women that he thought Shumway had killed someone.
John Finney testified that Shumway told him that he took some cash and credit cards out of Davis' pocket and hid them under a bush in the alley about a block from Davis' residence along with the two-by-four board. Nevertheless, no cash or credit cards were found with the board.
In testifying against Shumway, John Finney was able to avoid 6 months in jail. Finney's criminal record indicated that he had been convicted of theft and forgery involving false statements or dishonesty. Finney admitted that the police had supplied him with details regarding this crime: that Davis had been hit in the head with a two-by-four board and that the two-by-four board was found under a bush in the alley. The police also showed him a picture of the backyard, a picture of the bicycles behind the house, and other pictures and diagrams of the crime scene.
Mary Finney testified that her husband and Shumway left the residence before 11 p.m. and returned a half hour to an hour later. She alleged that her husband came home and told them that Shumway had killed someone. When Shumway returned home, there was blood on his shirt and shorts. Shumway warned John Finney not tell anyone what he had seen.
Like her husband, Mary Finney had been convicted of forgeries and thefts involving dishonesty and false statements. She and her husband discussed the evidence that the police had showed him before she spoke to the police. She was on probation and had two pending criminal cases when she testified against Shumway at his preliminary hearing.
Vickie Thomas testified that the weekend after Davis' death, she accused Shumway in front of his wife Catherine Dennis of having killed Davis. She alleged that Shumway admitted striking Davis and that Catherine Dennis heard his admission.
The other witnesses against Shumway were jailhouse informants. Ed Radford had previous convictions for theft, forgery, and bad checks involving dishonesty or false statements. He testified that Shumway had made a jailhouse confession to him that he killed Davis.
Another jailhouse informant, John L. Powers, Sr., urged the State to use him as a witness instead of Ed Radford. Powers maintained that Radford got his information by reading Shumway's paperwork. Powers also had convictions for thefts, forgery, and bad checks involving dishonesty and false statements.
The final jailhouse informant, Russell Lutz, testified that he was friends with Shumway and that Shumway told him that he hit Davis too hard. In exchange for Lutz' testimony, the State amended his charge from aggravated burglary to attempted aggravated burglary and dismissed other counts.
The Case Against Troy Love
The defense theory of the case was that Davis was killed by a drug dealer named Troy Love in a dispute over drugs or drug money. Shane Lynn testified that when the police first arrived to investigate Davis' death, people in the community believed that Love had killed Davis. Lynn told one of the investigating officers that he believed that Love killed Davis over drug money.
Defense witness Stephanie Markham, one of Davis' neighbors, testified that she saw Davis around 1 a.m., on October 6, 1999, the day before his body was found. She described him as very nervous. Davis told her that he had been pulled over by the police. Moreover, he told Markham that he had a large quantity of drugs in his possession, which he had received from Love. He told her that he threw the drugs out of the car window when the police approached him.
Markham further testified that around noon on October 6, 1999, Love came to Davis' home, looking for him, but Davis was not home. Markham told Davis about Love's visit when he returned home. Markham described Davis as nervous and anxious that day; he was carrying a gun in the back of his pants.
Topeka Police Officer Bruce Voigt, of the narcotics unit, confirmed that he had stopped Davis on October 5, 1999, for a defective tail light. Officer Voigt believed that Love was selling methamphetamine from a residence in the area, and he thought that Davis had come from this residence. He questioned Davis about Love and his activities related to methamphetamine, and he received some information from Davis. He asked Davis to make a controlled buy from Love. But he did not arrest Davis. Although Officer Voigt testified that he did not see Davis throw anything from his car, he stated that it was possible that Davis threw something from the car.
During the trial, the State requested an instruction on second-degree murder as a lesser included offense of first-degree felony murder, which the court granted. The jury found Shumway guilty of murder in the second degree and attempted misdemeanor theft.
Our court affirmed Shumway's convictions on direct appeal. See Shumway, 30 Kan. App. 2d 836. On January 10, 2003, Shumway moved for a new trial. He alleged that he had newly discovered evidence. Shumway's motion for a new trial was denied, and that decision was later affirmed by our court. See State v. Shumway, No. 92,871, 2005 WL 2495794 (Kan. App. 2005) (unpublished opinion).
Shumway's Habeas Corpus Motion under K.S.A. 60-1507
On September 23, 2003, Shumway filed a 60-1507 motion in which he alleged, in part, that he was denied effective assistance of trial counsel when his counsel failed to call two alibi witnesses. On August 9, 2005, Shumway filed an amended 60-1507 motion arguing, in part, that he was denied effective assistance of trial counsel because his counsel failed to call several witnesses who would have supported his theory of defense. The trial court dismissed Shumway's 60-1507 motion without holding an evidentiary hearing. After the trial court summarily dismissed Shumway's 60-1507 motion, our court reversed and remanded to the trial court with directions to grant Shumway an evidentiary hearing on his alibi witness claims and to determine if Shumway's untimely ineffective assistance of counsel claims should be addressed to prevent manifest injustice. Shumway v. State, No. 102,027, 2010 WL 1462712 (Kan. App. 2010) (unpublished opinion).
Ryan Kipling Elliot and Julia Spainhour were the attorneys who represented Shumway at trial. Both testified at Shumway's 60-1507 hearing. Shumway, along with several of the witnesses who he believed should have been called at trial, also testified. In its memorandum decision, the trial court denied Shumway's timely filed K.S.A. 60-1507 claims and dismissed his amended K.S.A. 60-1507 claims as untimely. Specifically, the trial court concluded the following: (1) that Shumway had "failed to prove that his trial counsel acted unreasonably when they decided not to call Catherine Dennis and Angela Dennis as potential alibi witnesses"; and (2) that Shumway's "alleged lack of ...