State v. Trotter

• Citation: 200 P.3d 1236
• Decision Date: 30 January 2009
• Docket Number: No. 98,563.,98,563.
• Parties: Christopher M. TROTTER, Appellant, v. STATE of Kansas, Appellee,
• Court: United States State Supreme Court of Kansas

200 P.3d 1236

Christopher M. TROTTER, Appellant, v. STATE of Kansas, Appellee,

No. 98,563.

Supreme Court of Kansas.

January 30, 2009.

Rebecca E. Woodman, of Capital Appellate Defender Office, argued the cause and was on the briefs for appellant.

Michael A. Russell, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Stephen N. Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

Christopher M. Trotter appeals the district court's summary denial of his K.S.A. 60-1507 motion, raising arguments that we have grouped into two issues for purposes of our analysis.

First, may this court consider whether Trotter's convictions for capital murder and first-degree premeditated murder are multiplicitous when the issue is raised for the first time on appeal from a summary denial of a K.S.A. 60-1507 motion and, if so, grant relief? We answer this question, "yes." Under the extraordinary circumstances of this case, the defendant successfully establishes a claim of ineffective assistance of counsel for failing to raise a meritorious multiplicity issue on direct appeal, and resolution of the issue can be considered as a matter of law based upon the appellate record.

Second, did the district court err in summarily dismissing Trotter's pro se K.S.A. 60-1507 motion that claimed (a) trial counsel was ineffective for failing to request an eyewitness instruction and (b) affidavits of codefendants, in which they stated they had committed perjury, constituted newly discovered evidence warranting a new trial? We answer this question, "no." The motion, files, and records of the case conclusively show that Trotter is not entitled to relief.

Factual Background

Although the facts are fully discussed in State v. Trotter, 280 Kan. 800, 127 P.3d 972 (2006) (Trotter I), a brief discussion is necessary to explain the issues in this appeal, particularly regarding those facts that relate to the issues of the eyewitness instruction and recanted testimony of two of Trotter's codefendants, Kevin Eddington and Virdal Nash.

At trial, the State presented evidence that Trotter shot and killed Traylennea Huff and James Darnell Wallace during the course of an aggravated robbery, which Trotter and others had planned in the hopes of stealing cash they believed to be in Huff's and Wallace's home. Trotter's codefendants testified that Trotter, who knew the victims, approached them about the possible robbery, and the group discussed a plan to enter the home, restrain the victims, and steal the money.

In addition, the codefendants testified regarding their intrusion into the home and the events that led to Trotter's shooting of Huff and Wallace. Codefendants Michael Navarre and Eddington, both of whom had accepted the State's offer to dismiss the first-degree murder charges against them if they testified against Trotter, were at the scene of the crime throughout the incident and both provided similar, although not identical, accounts. According to their testimony, after cutting telephone wires and attempting entry into the victim's home, the group retreated to some nearby woods where they waited until Wallace came out of his home. At that point Trotter rushed Wallace. Wallace struggled with Trotter and removed a shirt Trotter had wrapped around his face as a mask.

In the meantime, Navarre and Eddington went into the home and up the stairs to a hallway where they found Huff as she was coming out of her bedroom. They put a plastic tie on Huff's wrists and asked her where the money was hidden. While they were restraining Huff, a young boy opened his bedroom door. Eddington testified he pushed the boy back into his bedroom and then took Huff into her bedroom where she said the money could be found. As Eddington and Navarre took money from under the bed, they heard a gunshot. Both Eddington and Navarre testified that they left the home immediately, leaving Huff in her room. In addition, both testified that as they came down the stairs they met Trotter as he was coming into the home and up the stairs. When Eddington and Navarre were outside running away from the home, they heard another gunshot.

Codefendant Nash, who also received a favorable plea arrangement in exchange for his testimony, testified he went with the others to the scene, left while the group was waiting in the woods before the home invasion, and returned just as the others were fleeing the home. According to Nash, Eddington told him that Trotter had shot Wallace and Huff. Nash also testified that he heard Trotter say: "All he had to do was just lay down. I wouldn't have had to kill him."

In addition, Huff and Wallace's 8-year-old son, Damante, testified to what he saw and heard when noises woke him during the encounter. Among other things, Damante testified he got up from his bed, looked out of his bedroom door, and was pushed back into his room by a man who was in the hallway with his mother. Damante testified he returned to his bed but could still see out of his room. He was aware of the movement of two people at the top of the stairs, and he knew one of the people was his father because he heard his father say, "Chris." Soon thereafter, Damante heard gunshots.

Damante's ability to identify Trotter as the "Chris" who was at the scene of the crime was a point of contention during Trotter's trial. The jury heard of several occasions when Damante was asked to identify Trotter. The first occurred a day or two after the murder when police showed Damante a picture of Trotter. Damante identified the person as "Rock" and told police he had not seen "Rock" during the incident. Then, several months later, Damante was again shown Trotter's picture and on this occasion he stated, "That kind of looks like the one that was in our house." Finally, during his trial testimony, Damante was asked if he knew anyone in the courtroom; he responded that Trotter was the "Chris" he knew. On cross-examination, Damante testified that the "Chris" he was identifying was the person who had pushed him back into his room.

In the defense's closing argument, counsel argued that Damante's identification of Trotter as the person in the home was a product of suggestion. Defense counsel bolstered that argument by pointing to Damante's inability to identify Trotter's photograph a day or two after the shooting and to Damante's growing confidence in his identification as the prosecution progressed. In addition, defense counsel focused on Damante's identification of Trotter as the person who shoved him. Counsel emphasized that this testimony was inconsistent with Eddington's testimony that Eddington was the one who had pushed the boy, it created a doubt as to whether Trotter was the shooter, and it allowed an inference that Eddington was the one who had actually fired the shots that killed Wallace and Huff.

The State, on the other hand, noted that Damante had testified that the person who pushed him was wearing latex gloves. All of the codefendants testified that Trotter wore baseball batting gloves while they wore latex gloves. The State also emphasized that in Damante's initial contact with police, which occurred shortly after the incident, Damante told them his father's friend "Chris" was involved. It was this immediate statement that caused police to ask Wallace's family if Wallace knew a "Chris," and their responses led police to Trotter. In addition, the State emphasized that the other evidence—which was primarily the testimony of the codefendants—pointed to Trotter as the shooter.

No physical evidence linked Trotter directly to the crime, although physical evidence did corroborate that the shots that killed both victims were fired from one gun, the gun which the codefendants testified was in Trotter's hands the entire time.

After hearing this testimony and the other evidence more fully described in Trotter I, 280 Kan. 800, 127 P.3d 972, the jury found Trotter guilty of the capital murder of Huff, the first-degree premeditated murder of Wallace, aggravated robbery, and conspiracy to commit aggravated robbery. The jury also considered whether to impose the death penalty and decided not to do so. Subsequently, the district court sentenced Trotter to concurrent sentences of life for each murder conviction without eligibility for parole for 50 years, 79 months for the aggravated robbery conviction, and 32 months for the conspiracy conviction.

On direct appeal, Trotter raised issues involving (1) the district court's failure to give an unrequested instruction on eyewitness identification, (2) the court's admission of evidence that Huff was pregnant at the time of the murders, (3) the State's use of peremptory challenges to eliminate 9 of the 10 African-American jurors from the venire panel, and (4) the sufficiency of the evidence to support his convictions for capital murder and first-degree premeditated murder. Trotter I, 280 Kan. 800, 127 P.3d 972. This court rejected Trotter's contentions and upheld his convictions.

Less than 1 year later, Trotter filed a pro se K.S.A. 60-1507 motion claiming (a) ineffective assistance of trial counsel for failing to request an eyewitness jury instruction and (b) newly discovered evidence involving recanted testimony of witnesses. Attached to the motion were affidavits from codefendants Nash and Eddington, each attesting that their testimony against Trotter was untrue.

Nash began his affidavit by stating: "With this letter I do solemnly affirm that the statement I made in my preliminary hearing against myself and co-defendants Christopher Trotter, Kevin Eddington, Micheal [sic] Navarre and James Trotter was made up and un-true." (Emphasis added.) He indicated the police showed him pictures of the crime scene, "facts and points and a run down of the statements made by Kevin and Michael." Nash attested he "took the facts [the police] showed me and the run down from the...