State v. Cheatham

Decision Date25 January 2013
Docket NumberNo. 95,800.,95,800.
Citation292 P.3d 318
PartiesSTATE of Kansas, Appellee, v. Phillip D. CHEATHAM, Jr., Appellant.
CourtKansas Supreme Court

OPINION TEXT STARTS HERE

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.

Paul R. Oller, of Oller, Johnson & Bittel, L.L.C., of Hays, and John Val Wachtel, of Klenda, Mitchell, Austerman & Zuercher, L.L.C., of Wichita, argued the cause and were on the briefs for appellant.

Jacqie J. Spradling, chief deputy district attorney, argued the cause, and Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

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 evidentiaryhearing 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 noncapital murder cases—two as lead counsel and one as cocounsel. 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....

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