Appeal from Shawnee District Court; MARK S. BRAUN, judge.
SYLLABUS BY THE COURT 1. When a district court conducts an evidentiary hearing on claims of ineffective assistance of counsel, an appellate court determines whether the factual findings by the district court are supported by substantial competent evidence and whether those findings are sufficient to support the trial judge's conclusions of law. The trial judge's legal conclusions are reviewed de novo. 2. 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. 3. 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. 4. 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. When applicable, one such circumstance that may affect this objective standard is recognition that the allegedly deficient performance occurred in the context of a death penalty case. 5. Courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. 6. 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. 7. A defendant in a criminal trial has a constitutional right to representation that is free from conflicts of interest. 8. The United States Supreme Court has not defined a defendant's burden for establishing a basis to reverse a district court in a proceeding in which it is alleged the defendant was ineffective because of a conflict of interest that is rooted in the attorney's personal or financial interests. 9. This court has held that to demonstrate a conflict of interest resulted in ineffective assistance of counsel, a defendant must prove the conflict adversely affected the adequacy of the attorney's representation. A defendant who demonstrates this inadequacy need not establish prejudice in the traditional sense due to the difficulty of demonstrating such a claim in cases involving conflicting loyalties.
The opinion of the court was delivered by: Biles, J.:
The opinion of the court was delivered by BILES, J.:
In this capital murder case resulting from a double homicide and shooting of a third victim, Phillip D. Cheatham, Jr. was convicted and sentenced to death. On direct appeal to this court, he claims he was denied his right to a fair trial due to ineffective assistance of counsel. Cheatham characterizes his trial attorney's performance as a "cornucopia of . . . ineptness" based on both performance deficiencies and conflict of interest.
We bifurcated his ineffectiveness arguments from other claimed trial errors and remanded to the district court for an evidentiary hearing pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986) (appellate court discretion to remand ineffective assistance of counsel allegations upon sufficient showing in a direct appeal). During that proceeding, the State disputed that Cheatham received ineffective assistance during the guilt phase but stipulated Cheatham's attorney was ineffective during the trial's penalty phase. See K.S.A. 2010 Supp. 21-4624 (requiring a jury to first decide a defendant's guilt before reconvening to determine whether to impose the death penalty). The district court, which we refer to throughout this opinion as "the Van Cleave court," reversed the death sentence because of that stipulation and ordered a new sentencing trial.
As to the guilt phase, the Van Cleave court agreed with some of Cheatham's claims. It determined counsel was deficient in failing to file a statutorily required notice of alibi defense, as well as entering into an improper attorney fee agreement and generally lacking the experience required to try a capital murder case. The court went so far as to observe that Cheatham's attorney "had no business taking on a death penalty case."
But despite these findings, the court upheld Cheatham's convictions. It found there was no showing of "a reasonable probability that, but for those deficiencies . . . the outcome of the guilt phase would have been any different." Now before this court, Cheatham challenges several of the Van Cleave court's rulings and its ultimate conclusion. We disagree with the Van Cleave court.
We hold that trial counsel's representation denied Cheatham the fair trial he is guaranteed by both the federal and state constitutions. Specifically, we hold that counsel's performance was deficient in several respects, which were most seriously problematic when he volunteered to the jury that Cheatham had a prior voluntary manslaughter conviction and referred repeatedly to his client as a "professional drug dealer" and "shooter of people." This denied Cheatham his right to a fair trial. We hold further that under the circumstances in this case counsel's fee arrangement created an actual conflict of interest that adversely affected the adequacy of Cheatham's defense. We reverse his convictions and remand the case for a new trial. This renders the other issues on appeal moot.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying murder trial arose after the shooting deaths of Annette Roberson and Gloria Jones and the severe wounding of Annetta Thomas at a Topeka residence on December 13, 2003. Thomas told police officers at the scene that two men entered the residence, conversed for a while, and then drew handguns and began shooting. She said she knew one of the two shooters as "KP" or "Phil." She did not know the other man. "KP" was later identified as Cheatham.
Five days after the shootings, the State charged Cheatham with two counts of first-degree premeditated murder for the deaths of Roberson and Jones; one count of attempted murder and one count of intentional aggravated battery for shooting and then beating Thomas; and one count of criminal possession of a firearm. The State predicated the firearm's charge on Cheatham's 1995 voluntary manslaughter conviction.
Sometime after the shooting, but prior to his arrest, Cheatham telephoned Ira Dennis Hawver, a Kansas attorney, who at the time represented Cheatham on unrelated drug charges in Shawnee County. At the Van Cleave hearing, Hawver testified that Cheatham advised him during their telephone conversation that Cheatham was being accused of killing Roberson and Jones and shooting Thomas. Hawver said he responded by saying, "Well, you know, that's ridiculous because you're in Chicago and were headed that way."
Cheatham was arrested in Chicago on December 31 under a different name and for a different offense. He was eventually extradited to Kansas, where the public defender's office was initially appointed to represent him. Two days after Cheatham's first appearance in district court, Hawver became counsel of record in the murder case at Cheatham's request, and the public defender's office withdrew.
At the time he accepted Cheatham's representation in this multiple murder case, which would soon transform into a capital murder proceeding, Hawver was a sole practitioner residing outside of Ozawkie, Kansas, in what Hawver described as a busy country law practice. Hawver estimated his legal business in 2005 as "high volume," comprising about 60 percent civil cases and 40 percent criminal. He said he appeared in area courts nearly every day. His criminal caseload consisted of both misdemeanors and felonies, such as burglaries, theft, and drug-related felonies. As he later testified, his practice ran "the gamut, whatever walked into the office."
Prior to accepting Cheatham's representation, Hawver had tried three non-capital murder cases-two as lead counsel and one as co-counsel. All three occurred before 1985-at least 20 years before Cheatham's capital murder trial. Hawver told the Van Cleave court that he had tried approximately 70 jury trials in his career but had never tried, or participated in the defense of, a death penalty case before accepting Cheatham's. Hawver was not on the list maintained by the Board of Indigents' Defense Services (BIDS) as a "death-qualified" private counsel, i.e., an attorney specifically trained to defend capital cases under standards required by that agency. See K.A.R. 105-3-2 (any BIDS appointed attorney in capital case shall be a prequalified death penalty attorney). He was on the standard criminal case appointment list for Jefferson County but not Shawnee County, where Cheatham's case was filed.
Hawver agreed to Cheatham's representation knowing Cheatham did not have money to pay for Hawver's time or to reimburse expenses for investigators, consultants, expert witnesses, travel, photocopying, or the other substantial out-of-pocket costs usually associated with a capital murder case. Hawver later testified he never intended to use his own money to advance expenses on Cheatham's behalf. There was no written fee agreement.
Hawver also testified that Cheatham promised to pay a $50,000 attorney fee, but his testimony conflicts as to whether this was a flat or contingency fee. Early on, Hawver swore in an affidavit the fee would be owed only if Cheatham was acquitted, stating "I agreed to represent Mr. Cheatham on the murder charges in exchange for his promise to pay $50,000 for my time, if he was found not guilty on the charges." (Emphasis added.) Later, Hawver recanted that statement and testified the $50,000 was owed regardless of the outcome. The Van Cleave court later observed in its decision that "[i]t is clear trial counsel had problems remembering [these] details." Regardless, Hawver acknowledged that Cheatham was indigent and he was unlikely to ever receive payment. Hawver testified that he agreed to represent Cheatham because of his "heart-felt belief" that Cheatham was innocent.
Hawver did not focus on Cheatham's case full time. He would later testify that he "had other things going on" during the 4 months leading up to Cheatham's scheduled trial, which led Hawver to have his client acknowledge in writing that Cheatham understood Hawver was not going to concentrate "full-time" on the case. Hawver said he explained to Cheatham that he was going to continue representing others in order "to earn a living" and also that he was running for political office, which is something Hawver had done in prior election cycles. At the Van Cleave hearing, Hawver and Cheatham's new counsel had the following exchange:
"Q.: Now, at the same time that you were preparing for this trial in that four-month period, you were running for governor as well; is that right?
"Q.: In fact, you asked [Cheatham] to acknowledge that you were going to run for governor and that it was okay with him; is that right?
"A. [Hawver]: True. I wanted him to know that I had other things going on, and that he, you know, I wasn't going to be concentrating full-time on this case because I had to earn a living and I was running for governor.
"Q.: You were interested in that being acknowledged in writing, right?
"Q.: And that was to protect yourself?
"A. [Hawver]: Well, no, I wanted him to know that what I was [d]oing and make the decision whether he wanted me to continue to represent him."
Hawver described his political activities to the Van Cleave court as a "hobby" that he engaged in as a "bully pulpit" to express disagreement with certain public policies, such as the Iraq war. Often, Hawver said, he would attend political events dressed in costume as Thomas Jefferson to reflect Hawver's views about the original underpinnings to the United States Constitution. As Hawver explained, these political and professional activities occupied a significant enough portion of his time that he wanted Cheatham to acknowledge they would coincide with the defense of the murder charges.
Cheatham agreed to Hawver's conditions, but there is nothing in the record to show that Cheatham understood the intense time commitments required for his defense due to the multiple murder charges and the death penalty sanction they carried. In other words, there is nothing demonstrating Cheatham was given an opportunity to appreciate what he was giving up in relation to what he would be getting, or to discuss with another attorney the ramifications of the choices he had. See Boldridge v. State, 289 Kan. 618, 624, 215 P.3d 585 (2009).
On June 24, 2005, the State amended its complaint to add one count of capital murder for the deaths of Roberson and Jones and, alternatively, a count of first-degree premeditated murder for each killing. The complaint continued to charge attempted murder and aggravated battery for the attack on Thomas and criminal possession of a firearm. A preliminary hearing was held from June 30 to July 7, 2005. Hawver was assisted at this proceeding by Bret D. Landrith, a Topeka attorney with little criminal case experience. Landrith's appearance at the preliminary hearing was the only assistance from outside counsel Hawver had during Cheatham's representation.
When Cheatham's preliminary hearing concluded, the district court found probable cause on all counts. The next day, the State filed a notice of intent to request a separate sentencing procedure and notice of aggravating circumstances as required for the State to seek the death penalty under K.S.A. 21-4625. The State alleged as aggravating factors that Cheatham: (1) previously was convicted of voluntary manslaughter, a crime in which Cheatham inflicted great bodily harm, disfigurement, dismemberment, or death; (2) knowingly or purposely killed or created great risk of death to more than one person; and (3) authorized or employed another person to commit the crime.
At the Van Cleave hearing, Patricia Scalia, BIDS executive director, testified she contacted Hawver to inquire about Cheatham's representation shortly after the State amended the charges to seek the death penalty. BIDS is statutorily authorized to provide indigent defendants with resources to defend criminal charges, including capital cases. See K.S.A. 22-4501 et seq. Scalia informed Hawver about the services and assistance BIDS would provide in Cheatham's death penalty case, including furnishing co-counsel, investigators, consultants, and expert witnesses. Hawver confirmed to Scalia that Cheatham was indigent and qualified for BIDS services, but Hawver did not accept Scalia's offer of assistance. There was no further contact with BIDS regarding Cheatham's case prior to trial.
Hawver testified in the Van Cleave proceedings that he could not recall speaking with Scalia but conceded he did not seek financial assistance from BIDS because it was not his "practice to contact the Board of Indigent Defendants to ask them to fund a case" he had undertaken. He also testified that despite some knowledge of the appointment system for indigent criminal defendants, he "didn't even inquire" whether he could be appointed to represent Cheatham so that funds could be made available for the defense. And there is nothing in the record suggesting Cheatham knew about any of these available resources for his defense or that he knew Hawver had given up access to them.
In other pretrial proceedings, Hawver filed a motion for discovery and inspection, seeking all information held by the State regarding the crimes charged, including documents and photographs. Before trial, Hawver filed a notice to take a deposition to preserve the testimony of a Shawnee County jail inmate, whom Hawver claimed witnessed a confession by the husband of one of the victims, claiming responsibility for the murders. The notice alleged the inmate had a malfunctioning pacemaker and the defense needed his testimony preserved. The State objected, arguing there was no concrete evidence the inmate would be unable to testify. In denying this motion, the district court found no evidence presented to show the witness' possible unavailability as required by K.S.A. 22-3211.
Hawver also filed a motion for an inquisition hearing to determine whether certain potential witnesses would invoke their Fifth Amendment right to remain silent. The record does not reflect whether this motion was ever heard or that Hawver followed up on it.
At another hearing about 2 weeks before trial, the State advised the district court that it was using Cheatham's prior voluntary manslaughter conviction to prove he was a convicted felon for the purposes of the criminal possession of a firearm charge. The State further advised it had sent Hawver a letter offering to stipulate during the guilt phase that Cheatham was a convicted felon so that the "nature of that prior conviction doesn't come before the jury because the courts have found that it can be more prejudicial than probative." The State also indicated Hawver had accepted that offer, and the State volunteered to draw up a written stipulation for all parties to sign. The court indicated the stipulation should be part of the official court record, and the State could "clean it up" by filing the stipulation. Hawver responded by stating, "[The State] will memorialize it." A written stipulation was never entered into the record, but, consistent with the State's offer, the jury instructions indicated the parties stipulated that "[t]he defendant had been convicted of a person felony on February the 14th, 1995."
Less than 1 week before trial, the State next moved to prevent Cheatham from presenting any alibi evidence other than his own testimony because Hawver had not filed a written notice of alibi defense as required by K.S.A. 22-3218. The State's motion was prompted when Hawver indicated to a prosecutor that Hawver intended to prove Cheatham was somewhere else at the time of the crime. K.S.A. 22-3218 requires a defendant charged with a crime that necessitates the defendant's personal presence, such as the charges against Cheatham, to give the State at least 7 days' notice of any alibi defense, specifying where the defendant will claim he was at the time of the crime and identifying any witnesses supporting the alibi.
On the morning the trial commenced, the district court confirmed Hawver's failure to file the required notice. The court then held that Cheatham would be precluded from presenting alibi witnesses or other testimony about the subject, except from any testimony by Cheatham himself.
On August 29, 2005, jury selection began. Despite the stipulation offered by the State and accepted by Hawver to omit any reference to Cheatham's prior manslaughter conviction, Hawver told prospective jurors that Cheatham's lifestyle included being a cocaine dealer and that Cheatham had killed another cocaine dealer with a gun. Hawver turned to Cheatham to confirm the truth of those statements. Hawver repeated a similar characterization shortly thereafter. We discuss this in greater detail later in this opinion.
The trial's guilt phase lasted 9 days. Among the State's witnesses was Annetta Thomas, the lone survivor, who unequivocally testified Cheatham was one of the shooters. Under the State's prosecution theory, Cheatham killed the women in retaliation for stealing drug money from him. But Hawver argued that another man, Todd Adkins, who was Annette Roberson's boyfriend, killed the women because he was jealous of a lesbian affair between Roberson and Thomas.
Cheatham testified in his own defense and denied any involvement with the crimes. He maintained that he had left town at Hawver's suggestion and gone to Chicago on the afternoon of the day the crimes were committed. Importantly-and despite the State's stipulation-Hawver had Cheatham testify in detail about his prior voluntary manslaughter conviction. This testimony prompted the State on cross-examination to introduce exhibits-without objection from Hawver-depicting that victim's four gunshot wounds and exploring the crime in greater detail.
The jury found Cheatham guilty on all counts, and the proceedings turned to punishment. The penalty phase was conducted in a single day. The State called one witness, the prosecutor from Cheatham's previous voluntary manslaughter case. The defense called two witnesses, Cheatham and his mother. The jury unanimously found all three aggravating circumstances alleged by the State and further found those aggravating circumstances were not outweighed by any mitigating circumstances. Under K.S.A. 21-4624(e), those findings mandate a death sentence.
Immediately after the jury announced its penalty phase verdict, Hawver advised the trial court that Cheatham wanted Hawver relieved and a new attorney appointed. The judge asked Cheatham to delay that request until after sentencing. Cheatham agreed. At the subsequent sentencing hearing, the district court imposed the death penalty consistent with the jury's verdict. In addition, the court sentenced Cheatham to 285 months for the attempted murder of Thomas, 43 months for the aggravated battery of Thomas, and 9 months for the criminal possession of a firearm. The sentences were to be served consecutively.
Hawver timely filed Cheatham's notice of appeal, and the district court allowed him to withdraw as Cheatham's counsel. The Capital and Conflicts Appeals Office assumed responsibility for Cheatham's appeal and began an investigation into whether Hawver's representation amounted to ineffective assistance of counsel. As a part of its investigation, Hawver executed an affidavit in which he admitted to doing-or failing to do-numerous things before and during Cheatham's trial that were deficient and prejudicial to Cheatham's defense effort.
In that affidavit, among other concessions, Hawver acknowledged that he only spent about 40 to 60 hours working on Cheatham's case during the 126 days between when he accepted the engagement and the first day of trial. He further stated:
"At the time I entered my appearance I did not consult with the BOARD OF INDIGENT[S'] DEFENSE to explore whether funding might be available to support my representation of the client. Nor did I meet with any person with experience in the pre-trial investigation of a capital case. In truth, I should not have accepted the case given my lack of capital trial experience, and the unavailability of necessary funding which I now understand is required in the preparation and trial of cases, such as this one in which the client faces a possible death sentence." (Emphasis added.)
"I was not able to evaluate the strength of my theory of defense by employing an investigator and putting him into the field to question the scores of witnesses which may have had information to share about the day of the crime, the credibility of certain key witnesses, the relationship of my client with the Topeka police department and the resulting prejudice, the potential alibi witnesses or other critical evidence which would have [been] uncovered with the help of a competent investigator. I admit that I did not provide effective assistance of counsel when I decided to forgo a comprehensive investigation of the trial facts." (Emphasis added.)
On direct appeal to this court, Cheatham's appellate counsel promptly sought remand to the district court for a hearing on Cheatham's ineffective assistance of trial counsel claims, which related to conduct during both the guilt and penalty phases. The State opposed this relief. This court determined the claim merited preliminary remand for a Van Cleave evidentiary hearing, which is the focus of our discussion below.
Prior to the Van Cleave hearing, the State stipulated that Cheatham received ineffective representation during the penalty phase based on four conceded errors. First, the State agreed Hawver "did not prepare for the sentencing phase of Mr. Cheatham's case" and admitted further that if he had prepared mitigation evidence it would have included character testimony from family members, evidence of parental neglect, maternal drug use, violence against his mother, poverty, and the absence of a father figure. The State acknowledged that forgoing the presentation of mitigation evidence would have been a reasonable trial strategy only if that decision were made after a reasonable investigation into mitigation evidence, citing Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).
Second, the State stipulated that Hawver "did not attempt to secure funds to investigate a second phase, and had no defense team to assist in investigation or presentation of [the sentencing] phase defense." Third, it stipulated that Hawver neglected to qualify the jurors for the sentencing phase by failing to discover and remove any jurors who would automatically vote for the death penalty once they found Cheatham guilty in the first phase. And fourth, the ...