Opinion
No. 110299.
07-17-2015
Chatha TATUM, Appellant, v. STATE of Kansas, Appellee.
Patrick E. D'Arcy of Kansas City, for appellant. Edmond Brancart, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Patrick E. D'Arcy of Kansas City, for appellant.
Edmond Brancart, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Chatha Tatum appeals the district court's denial of his K.S.A. 60–1507 motion after an evidentiary hearing. Tatum contends that the district court should have granted him relief on his claims that (1) the district court committed clear error in failing to instruct the jury on lesser included offenses and (2) his trial counsel was ineffective for failing to request or object to the omission of those instructions and for failing to adequately investigate an alibi defense prior to trial. For the reasons stated herein, we reject Tatum's claims and affirm the district court's judgment.
In 2004, a jury found Tatum guilty of first-degree murder and attempted firstdegree murder, and the district court sentenced him to life imprisonment without the possibility of release for 50 years, a hard 50. Tatum appealed to the Kansas Supreme Court, which described the underlying facts of the case as follows:
“On December 17, 2003, Damon Walls, his girlfriend Kyea Kimbrough, and his friend Terrell Williams drove to Dwayne Coates' house in Kansas City, Kansas, to purchase marijuana. The buy had been prearranged shortly before. When they arrived at Coates' house, Walls parked the car and Williams got out. As Williams walked up to the house, Walls' car was hit by a barrage of gunfire. Walls and Kimbrough both received multiple gunshot wounds. Walls survived but Kimbrough died.
“The investigation
“That evening, Kansas City, Kansas, police officers were investigating a crime scene in the 1700 block of Cleveland when they heard about 20 to 30 gunshots in the next block. At first they ducked for cover, not knowing if the shots were directed at them.
They then ran between the houses and saw a van speeding away. Shortly after that, they received a call that there was shooting in the 1500 block of Haskell.
“When officers arrived at the scene, they found a large number of shell casings in the street in front of 1532 Haskell, along with a large amount of blood on the curb, a shoe, a Ruger 9 mm handgun, a cell phone, and broken glass. Crime scene technicians recovered 21 spent shell casings of different calibers—.223 caliber, .40 caliber, and .45 caliber.
“As additional officers were being dispatched to the scene, another call came in that two shooting victims from the Haskell crime scene were at the fire station about 12 blocks away. At the fire station, officers found a vehicle parked in the driveway. The car had been riddled with bullets and had shattered windows and a flat front tire. Walls was lying on the ground outside the driver's side of the car, and Kimbrough was lying outside the passenger side of the car. Both were being attended to by several firemen or paramedics. Walls had suffered three nonfatal gunshot wounds to his left side and one to his right foot. Kimbrough suffered six gunshot wounds and died.
“At the fire station, Walls identified the shooters as ‘Edie’ and ‘Charlie’ and said they were driving a gray Chevy minivan. The investigation lead the police to suspect that ‘Edie’ was Chatha Tatum. The next day, when Walls was shown a photographic lineup that included Tatum's photograph, he immediately identified Tatum as one of the shooters.
“Walls told a detective that he thought ‘Charlie’ was Charlie Allen, that he had a brother named Terry Allen, and that his nickname was ‘Nose.’ When Walls was shown a lineup containing a photograph of an individual named Charlie Allen, Walls was adamant that the Charlie who was involved in the shooting was not in that lineup. The detective contacted the Kansas City, Missouri, Police Department's intelligence unit and learned that a man named Charles Winston associated with Tatum and had a brother named Teny Allen. When Walls was shown a photographic lineup containing Winston's picture, he identified him immediately.
“Williams was questioned the night of the shooting, but he initially lied about his presence at the scene, telling the police he was just an innocent bystander. However, the next day he admitted he went to Coates' house with Walls and Kimbrough and saw the shooting. He told officers he saw a man he knew as Edie shooting at Walls' car.
“Walls' and Williams' versions of the events that night differed somewhat, so they are set out separately below.
“Damon Walls' testimony
“When they arrived at Coates' house, Walls noticed a dark-colored minivan parked across the street and another car in front of the van. Walls noticed from the exhaust that the vehicles were running. Williams got out of the car, Fat Mac (involved in arranging the marijuana purchase) got out of the car parked in front of them, and they walked up toward the house. Walls then received a call on his cell phone from Williams, who said, ‘[H]ey, Bro, that's the dudes from the mall.’ That remark referred to an incident at Oak Park Mall earlier that summer where Winston and Tatum had threatened Walls. That incident will be discussed in detail below.
“Walls then saw Winston get out of the van and saw Tatum get out of one of the cars parked nearby. He knew Tatum and Winston from the incident at Oak Park Mall, and he had played basketball with Winston at the local community center when he was younger. He saw that Winston had a gun, and Winston pointed it at Walls' car in a gesture that appeared to be intended to let Tatum know that Walls was in that car. Walls tried to slide down into the seat, and then the shooting started. He saw Winston shooting from the front of the van and saw Tatum shooting from the side of the van.
“Kimbrough was in the passenger seat, and Walls leaned over and tried to push her out of the car, but she had her seat belt on. He climbed out of the car through the passenger side window, and as he did, he was shot in the foot. The shooting stopped about that time. He opened the passenger door as he lay on the ground and then undid Kimbrough's seatbelt. He heard the van drive off fast. Williams came over to the car, helped Walls get into the back seat, and drove him and Kimbrough to the fire station.
“At trial, Walls identified Winston and Tatum as the shooters.
“Terrell Williams' testimony
“When they arrived at Coates' house, Williams saw a maroon van parked across the street. There were three to four people in the van. As he walked up to the house, he heard someone in the van asking ‘[I]s that him, is that him?’ He tried to call Walls on his cell phone to ask him if they were the guys from the mall, but he said he did not get hold of Walls.
“He then saw Tatum get out of the van, and the shooting started. He dove onto the porch and lay there. He looked through the porch rails and saw two people shooting. However, the only one he saw get out of the van was Tatum. He recognized Tatum from the incident at Oak Park Mall. After the shooting stopped, he jumped off of the porch and
began to run when he heard Walls yelling for him. He went over to the car, helped Walls into the car, and drove them to the fire station.
“At trial Williams identified Tatum as the shooter he saw that night.
“The Oak Park Mall incident
“During the summer before the shooting, Walls, Williams, and Marcus Harris were at Oak Park Mall. Williams saw a group of three guys staring at them. Walls recognized two of the three as Tatum and Winston. A few minutes later, the group approached them and Tatum told Walls he looked like someone Tatum had ‘popped.’ Williams recalled that Tatum said, ‘We killed a nigga looked just like you, we gonna get you too.’ After Tatum's comment, Winston told Walls that Walls' little brother was going to have to get Walls' name tattooed on his neck next. Walls knew the comment concerned his older brother ‘Messy Marvin,’ who had been shot and killed 2 years earlier. Walls had had his brother's name tattooed on his neck after Marvin was killed. Harris took the comment to mean that they wanted Walls dead just like his brother.
“Williams then asked what was going on, and Tatum said they had a problem with Walls, they did not like him, and that Walls knew what was going on. Williams asked Tatum and Winston who they were, and Tatum said he, indicating Walls, knew who they were.
“Tatum did not actually display a gun that day; however, they all believed that he had one. Williams testified that during the confrontation, Tatum ‘stressed’ that he had a gun. Tatum said, ‘I'm ready, we can do whatever’ and indicated to them he had a gun by the way he had placed his hand and from the ‘gun print’ he saw in Tatum's pocket. Harris saw Tatum tap on a bulge on his hip that looked like a gun.
“Although the incident was serious, and he was scared, Walls just ‘laughed it off because he did not have a gun with him. After they left the mall, Walls called his grandmother and told her about the incident. He was very upset.
“At trial, Walls, Williams, and Harris each identified Winston and Tatum as the men at the mall.
“Gang evidence
“The State's theory of the case was that the shooting was gang related in that it arose out of an ongoing conflict between two rival Kansas City, Missouri, gangs. Victim Walls was from Kansas City, Missouri, as were the defendants.
“The State filed a motion prior to trial to introduce evidence of gang membership to provide the motive for the shooting and to explain the Oak Park Mall incident. Tatum's counsel filed a motion in limine seeking to exclude evidence of his association with the Hilltop gang unless the State could show that any such association was directly related to the crimes charged. He also sought to exclude any evidence concerning the murder of Walls' brother and any evidence that Marvin Walls' murder provided the motive for the shooting in this case.
“There was a pretrial hearing at which the State presented testimony from Kansas City, Missouri, Homicide Detective Everett Babcock to support its request to allow gang evidence. The transcript of that hearing was part of the record in Winston's case but was not included in the record in this case.
“The court ruled that the gang evidence would be admissible as the State had established that it was relevant to show a motive for what would otherwise be an inexplicable act.
“At trial, the State presented the following gang evidence through Walls, Walls' grandmother, George Anna Myers, and Detective Babcock.
“Walls believed the reason Tatum and Winston tried to kill him that night was because of the gang-related murder of his brother almost 2 years earlier. Walls' brother Marvin had been a member of the Kansas City, Missouri, gang called Tre Wall, also known as Third Wall and Tre Tre. Marvin had a Tre Wall tattoo. Tre Wall was in a longstanding feud with a rival Kansas City, Missouri, gang called Hilltop.
“Walls testified that Tatum and Winston ‘claimed’ Hilltop. He knew Tatum was a Hilltop member from things he had overheard from his brother. Walls testified that
although he personally did not have any problem with Hilltop, his brother's conflict with Hilltop became his problem too, because that is the way things work with the Kansas City gangs. If gang members have a problem with someone, they also have a problem with that person's little brother. While Walls denied that he was involved in a gang, he admitted that he has friends who are Tre Wall members.
“Myers testified that Marvin became involved in a ‘beef over some tennis shoes with Terrence Diamond and his associate, defendant Tatum. Diamond was a member of the 51st Street gang, and Tatum was with Hilltop. According to what Walls had told police, Diamond and Tatum were very close friends. Eventually, the conflict escalated, and Marvin shot at Diamond and other Hilltop gang members. Marvin had told Myers he had to shoot at them because the situation had come to the point where they were going to kill him. Both Walls and Myers believe Marvin was killed by Diamond. Additionally, Myers testified that Coates was supplying marijuana to gang members from Hilltop.
“Detective Babcock testified about his knowledge of Kansas City, Missouri, gangs and the longstanding violent conflict between the Hilltop and Tre Wall gangs. He testified that Hilltop covers an area of town homes that extends from 17th Street to 23rd Street along Topping in Kansas City, Missouri. He testified that Hilltop is affiliated with other gangs, such as the 51st Street gang. Tre Wall covers the area from Linwood south to about 39th Street and includes the 3000(Tre) blocks in between.
“Detective Babcock testified that indicators that someone is associated with a gang include claiming membership, having gang-related tattoos, and wearing gang colors. He testified that Hilltop members are likely to identify themselves with tattoos of their block, such as 23rd Street. Because Hilltop is considered a Crips set, they often wear blue. Tre Wall is considered a Bloods set, and they often wear red.
“Detective Babcock testified that he first heard of ‘Edie’ about 3 years ago, and the name was associated with Hilltop. Since then, he had determined that ‘Edie’ was Chatha Tatum, the defendant. He testified that Tatum is affiliated with Hilltop and that Tatum has a tattoo depicting a street sign with the numbers ‘Duce’ and ‘Tre’ indicating his affiliation with Hilltop.
“Detective Babcock testified that Winston is also associated with Hilltop. He testified that Tatum and Winston associated together and were friends, and that Tatum was also friends with Winston's brother, Terry Allen, who is a Hilltop member. He also testified that Walls' brother, Marvin, was a Tre Wall member and had been involved in a conflict with Terrence Diamond, a member of 51st Street, which is affiliated with Hilltop.
“Detective Babcock also testified that gang-related homicides are typically an ambush-style attack with multiple rounds, and the witnesses in those cases tend to be uncooperative.
“The defense called no witnesses. The jury found Tatum guilty of one count of first-degree murder and one count of attempted first-degree murder. Tatum received a hard 50 life sentence on the first-degree murder conviction and a concurrent sentence of 195 months on the attempted murder conviction.” State v. Tatum, 281 Kan. 1098, 1100–06, 135 P.3d 1088 (2006).
In his direct appeal, Tatum argued that the district court erroneously admitted evidence about gang membership and activity and erroneously denied his motion for mistrial after evidence of his involvement in past drug sales and homicides was introduced into evidence under K.S.A. 60–455. 281 Kan. at 1110, 135 P.3d 1088. Our Supreme Court disagreed with Tatum's claims and affirmed his convictions. 281 Kan. at 1113, 135 P.3d 1088.
On June 11, 2007, Tatum filed a pro se motion pursuant to K.S.A. 60–1507, claiming the trial court erred by (1) instructing the jury about the doctrine of transferred intent, (2) “unduly emphasiz[ing] the element of intent,” (3) failing to instruct the jury on the lesser included offenses of attempted second-degree murder and intentional and unintentional second-degree murder; and (4) giving the jury an improper reasonable doubt instruction. Tatum also claimed he had received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.
Tatum contemporaneously filed a memorandum in support of his K.S.A. 60–1507 motion, in which he further developed his complaints. In the memorandum, Tatum asserted that his trial counsel was ineffective for failing to request jury instructions on lesser included offenses. At the end of his memorandum, Tatum requested that the district court appoint counsel to represent him and set an evidentiary hearing.
The State filed a response and asserted, among other arguments, that the first four issues were trial errors that Tatum could not properly raise in his K.S.A. 60–1507 motion. The State concluded that because the motion, files, and records conclusively showed that Tatum was not entitled to relief, there was no need for the district court to appoint counsel or hold an evidentiary hearing.
In October 2007, the district court appointed Charles Lamb to represent Tatum and scheduled a hearing, but before the hearing occurred, Lamb withdrew, at which time the court appointed Patrick Quirk. Through Quirk, Tatum requested further continuances of the hearing. In October 2008, Quirk withdrew and the district court appointed Steve Alexander to represent Tatum, which necessitated another continuance, as Alexander needed time to familiarize himself with the case. The appearance docket shows no further activity in the case until September 2011, when an order to transport was filed.
On September 22, 2011, the district court held a status hearing. At that hearing, Tatum requested additional time to obtain trial transcripts and review those transcripts so that he could supplement his motion with additional ineffective assistance of counsel claims. The district court granted Tatum additional time and indicated that it would later decide whether to hold an evidentiary hearing.
On March 12, 2012, Tatum filed a supplemental motion for relief pursuant to K.S.A. 60–1507. The supplemental motion included additional claims that trial counsel was ineffective for (1) failing to object to the improper reasonable doubt jury instruction, (2) failing to adequately investigate an alibi defense, and (3) failing to object to improper character evidence. In addition, Tatum alleged his appellate counsel was ineffective because counsel failed to (1) raise in the direct appeal any claims of jury instruction error, (2) appeal the district court's exclusion of certain evidence, and (3) appeal the admission of gang evidence on the grounds that it violated Tatum's federal rights to due process.
On May 2, 2012, the district court held an evidentiary hearing on Tatum's K.S.A. 60–1507 motion. Although the State asked the district court to limit the scope of the hearing to matters that could not have been raised as part of Tatum's direct appeal, the district court allowed argument and evidence on all of Tatum's claims. Tatum first called KiAnn McBratney, who had represented Tatum during his trial. McBratney's testimony will be summarized later in this opinion. Next, Tatum called his mother, Sandra Tatum, to testify about her interactions with McBratney. Tatum also testified, explaining his original and supplemental K.S.A. 60–1507 motions, reasserting his claims and expanding on some of them. Relevant to the issues now on appeal, Tatum testified about his beliefs that McBratney should have requested lesser included offense jury instructions and that she failed to adequately investigate and obtain testimony from his alibi witnesses. After hearing the evidence, the district court took the matter under advisement.
On January 17, 2013, the district court filed its order denying Tatum's K.S.A. 60–1507 motion. The order stated:
“1. Kansas law is clear that when a matter is directly appealed from a conviction and sentence, the decisions by the appellate courts are final and res judicata as to all issues raised before the appeals court, as well as those which could have been raised. In looking to the multiple issues raised by pleading of the plaintiff, both in his pro se motion, and the other pleadings filed by counsel to supplement his motion, the Court finds that all issues raised, except for two, fall clearly into this rule. As such this Court cannot and will not address any of the trial issues raised.
“2. The Court will note that the first of the issues which falls outside the holding in # 1 deals with the jury instructions given at trial, specifically instruction # 6 [ (the reasonable doubt instruction) ]. The Court has looked closely at the instruction and the cases as cited by both parties, and this Court finds that the instruction given complies with the directions noted in the Miller v. State case. Accordingly this Court finds that the instructions as given were proper.
“3. The second noted issue for consideration by this Court at this time in the claim of ineffective assistance of counsel, wherein the plaintiff claims that the actions of Ms. McBratney rises to a level that should convince this court that his conviction should be set aside. The Court is well aware of the tests set out by the appellate courts for examination of this issue. When looking at either one of the two prongs in those tests the facts in this case do not rise to that level. As such this Court does find that the actions of Ms. McBratney do not constitute ineffective assistance of counsel.
“Accordingly, the Petition is hereby denied and the matter dismissed. ”
Tatum timely appealed the district court's judgment.
Failure to Instruct the Jury on Lesser Offenses
In his first issue, Tatum argues that the trial court committed clear error by failing to instruct the jury on the lesser included offenses of second-degree murder and attempted second-degree murder because the facts clearly supported giving the instructions. The State responds that this issue constitutes a trial error that Tatum should have raised in his direct appeal and is not properly raised in his K.S.A. 60–1507 motion.
We agree with the State that the jury instruction issue, in and of itself, could have been raised on Tatum's direct appeal and generally does not provide grounds for relief under K.S.A. 60–1507. Tatum may not now raise such a trial error unless (a) it affected Tatum's constitutional rights and (b) exceptional circumstances excuse his failure to raise the claim in his direct appeal. See Supreme Court Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 285). Exceptional circumstances that justify allowing a petitioner to raise trial errors in a K.S.A. 60–1507 motion include
“ineffective assistance of trial counsel in failing to object regarding an issue; ... ineffective assistance of direct appeal counsel in failing to raise an issue; or there was newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and movant at the time of the trial and direct appeal. [Citation omitted.]” Trotter v. State, 288 Kan. 112, 127, 200 P.3d 1236 (2009).
Tatum asserts in the next section of his brief that his trial counsel was ineffective by failing to request lesser offense instructions and that his appellate counsel was ineffective for failing to raise this issue on appeal. Tatum's brief fails to develop an argument as to how his ineffective assistance of counsel claims constitutes exceptional circumstances allowing him to raise the alleged trial error concerning jury instructions in his K.S.A. 60–1507 motion. Nevertheless, we will need to address the merits of Tatum's claim that the trial court should have instructed the jury on lesser offenses in order to dispose of Tatum's corresponding claims of ineffective assistance of counsel, and we will do so in the next section of this opinion.
Ineffective Assistance of Counsel Claims
In his second issue, Tatum argues that his counsel was ineffective in two ways: (1) trial counsel was ineffective by failing to request lesser included offense jury instructions and direct appeal counsel was ineffective for failing to argue that the district court erred by failing to give the instructions, and (2) trial counsel was ineffective by failing to adequately investigate potential alibi witnesses. The State responds by asserting that the district court's findings relative to the ineffective assistance of counsel claims are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law.
When a district court holds a full evidentiary hearing on a K.S.A. 60–1507 motion, as it did here, the district court must then issue findings of fact and conclusions of law concerning all issues presented. See Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285). On appeal this court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the conclusions of law. This court reviews the ultimate conclusions of law de novo. See State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013). Appellate courts apply the same standard of review to claims of ineffective assistance of counsel. See State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014).
“To establish ineffective assistance of counsel, [Tatum] must establish (1) that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that [her] performance was less that that guaranteed by the Sixth Amendment to the United States Constitution, and (2) that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive [Tatum] of a fair trial.” See State v. Burnett, 300 Kan. 419, 452, 329 P.3d 1169,
329 P.3d 1169 (2014).
Tatum first claims that his trial counsel was ineffective by failing to request lesser included offense jury instructions and direct appeal counsel was ineffective for failing to argue that the district court erred by failing to give the instructions. At his trial, the district court instructed the jury on first-degree premeditated murder under K.S.A. 21–3401(a) (Torrance 2007), which was defined as “the killing of a human being committed ... [i]ntentionally and with premeditation.” Tatum now contends that the jury should have received instructions on second-degree murder pursuant to K.S.A. 21–3402 (Torrance 2007), which was defined as “the killing of a human being committed (a) [i]ntentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.”
Tatum argues that there was no direct evidence of premeditation. He contends that because the location was a house where drug transactions occurred and because Walls brought a gun to the scene, “a jury could easily accept that the gunfire resulted spontaneously or recklessly and not as a result of premeditation.” In response, the State points out that there was overwhelming evidence of premeditation and no evidence at trial in which the jury reasonably could have concluded that the shootings were anything but premeditated.
We agree with the State's categorization of the trial evidence. The State's theory of the case was that the shootings were gang-related in that the shootings arose out of an ongoing conflict between two rival Kansas City, Missouri, gangs. Specifically, Walls testified that he believed the reason for his attempted murder was gang-related; Walls' brother, the victim of an earlier gang-related murder, was a member of a gang in a longstanding feud with a gang Walls believed Tatum claimed. See Tatum, 281 Kan. at 1105, 135 P.3d 1088. Walls' testimony about the gang-related nature of the shootings was corroborated by his grandmother and also by Detective Babcock. Additionally, Walls, Williams, and Harris testified at trial about what our Supreme Court called “The Oak Park Mall incident.” During the summer prior to the shooting, Walls and others had a confrontation with Tatum and others, during which Tatum threatened to kill Walls. 281 Kan. at 1103, 135 P.3d 1088.
On the day of the shootings when Walls, Williams, and Kimbrough arrived at Coates' house, Walls noticed a dark-colored minivan parked across the street with its engine running. Williams testified that as he walked to the house, he heard someone in the van saying, “ ‘[I]s that him, is that him?’ “ 281 Kan. at 1102, 135 P.3d 1088. Walls testified that when he first observed Winston and Tatum, Winston pointed a gun at Walls' car “in a gesture that appeared to be intended to let Tatum know that Walls was in that car” and the shooting began. 281 Kan. at 1102, 135 P.3d 1088. Neither Walls nor Kimbrough were out of their car, and neither said a word to the shooters. The shootings were not provoked. Winston and Tatum took up positions on two fronts, at close range, and they opened fire on Walls. As Walls scrambled over Kimbrough's lap, the shooters kept shooting. They shot Walls four times and Kimbrough six times. After the gunfire, Winston and Tatum fled the area, leaving Walls and Kimbrough for dead.
Tatum presented no evidence in his defense. He argued that the State failed to prove beyond a reasonable doubt that he was involved in the shootings. He made no argument at trial that the gunfire resulted spontaneously or recklessly and not as a result of premeditation. At the evidentiary hearing on the K.S.A. 60–1507 motion, McBratney testified that she could not conceive of a lesser included offense instruction that would have been supported by the evidence at trial.
The duty to instruct on a lesser included offense does not arise if the evidence at trial could not reasonably support a jury verdict on the lesser included offense or is contrary to the defense asserted. State v. Hall, 270 Kan. 203, 212, 14 P.3d 430 (2000). The primary difference between first-degree and second-degree murder is the element of premeditation. Circumstances which may give rise to an inference of premeditation include: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. State v. Meeks, 277 Kan. 609, 622, 88 P.3d 789 (2004).
At Tatum's trial, the State presented substantial evidence that the shootings directed at Walls were intended and planned in advance, with a motive provided, including Tatum's earlier threats to kill Walls. As to the fatal shooting of Kimbrough, the State proceeded on a theory of transferred intent, and Tatum makes no claim on appeal challenging the application of that theory. The defense did not provide any evidence that could have led the jury to reasonably conclude that Tatum was involved in the shootings but acted without premeditation. Tatum's defense was that he was not involved in the shootings. However, there was no evidence to support the notion that the shootings were anything but premeditated. Based upon the evidence presented at trial, Tatum either was guilty of the crimes as charged or not guilty, but there was no evidence that could have reasonably supported a jury verdict on a lesser offense. Thus, Tatum's trial counsel was not ineffective for not requesting jury instructions on lesser offenses. Likewise, Tatum's appellate counsel was not ineffective for not raising the issue on appeal.
Next, Tatum claims that his trial counsel was ineffective by failing to adequately investigate potential alibi witnesses. Tatum raised this claim of ineffective assistance of counsel in his supplemental K.S.A. 60–1507 motion. He alleged that he told McBratney prior to trial that he was not present during the commission of the charged crimes and that he gave McBratney the names of and contact information for three women who could corroborate his alibi: Melissa Shaw, Alexis Young, and Sue Hollowin.
McBratney testified at the evidentiary hearing on Tatum's K.S.A. 60–1507 motion. Relevant to this issue, McBratney testified that on March 10, 2004, when she went to the Wyandotte County Jail, she met a woman named Alexis Young, who was visiting Tatum. Tatum told McBratney that “he may use [Young] as an alibi.” Young confirmed Tatum's statement and McBratney obtained her phone number. McBratney told Tatum that if he had an alibi, he needed to tell her the details of that alibi. McBratney also testified that although she remembered talking to Young prior to the trial, her case file did not contain notes from that conversation, so McBratney believed that Young “didn't say anything that was going to help [Tatum].” McBratney specifically testified that using Young as an alibi “did not come to fruition during trial preparation.”
In regards to Sue Hollowin, McBratney testified that she had reviewed her entire case file and found no mention of Hollowin; therefore, she asserted that she had never received Hollowin's name as a possible alibi. As to Melissa Shaw, the only mention in McBratney's case file of a Shaw was a letter McBratney received after the trial from a “B. Shaw,” stating that she knew Tatum did not commit the crime; nowhere in the letter did B. Shaw assert that she was an alibi. McBratney freely conceded that she did not meet with anyone named Melissa Shaw prior to Tatum's trial.
McBratney also testified that she asked Tatum in March 2004 to prepare a “handwritten journal” for her detailing the State's allegations from Tatum's perspective. When she received the journal, it had no indication that Tatum had an alibi for the time of the charged crimes. McBratney also testified that according to her notes, she met with Tatum and/or his mother numerous times and they did not discuss an alibi at those meetings. McBratney testified generally that as she learned more about the case against Tatum and the related facts, the information led her away from an alibi defense and Tatum's actions suggested that such a defense would not be appropriate. McBratney testified that on one occasion Tatum had asked her to investigate intoxication as a defense. McBratney also testified that at a hearing on one of the pretrial motions, Tatum informed her that he had no witnesses for trial.
Tatum's mother, Sandra Tatum, also testified at the K.S.A. 60–1507 hearing, and stated that she took Melissa Shaw to see McBratney; Sandra understood that Shaw could be an alibi witness. According to Sandra, she drove Shaw to and from McBratney's office but did not go into the office and did not think that Shaw got to see McBratney.
Tatum also testified at the hearing about his claim that McBratney failed to adequately investigate alibi witnesses. Tatum asserted that he had explicitly directed McBratney to have an alibi witness testify on his behalf, and he had given McBratney the names and contact information for Shaw, Young, and Hollowin. Tatum testified that at trial, when the prosecution rested its case, McBratney leaned over and asked him about his alibi witness. McBratney told Tatum that she would try to find his alibi witness, but she never notified the court of an alibi defense.
The district court's findings were brief concerning Tatum's claims of ineffective assistance of trial counsel. In its journal entry denying Tatum's motion, the district court found as follows:
“The second noted issue for consideration by this Court at this time i[s] the claim of ineffective assistance of counsel, wherein the plaintiff claims that the actions of Ms. McBratney rises [sic ] to a level that should convince this court that his conviction should be set aside. The Court is well aware of the tests set out by the appellate courts for examination of this issue. When looking at either one of the two prongs in those tests the facts in this case do not rise to that level. As such this Court does find that the actions of Ms. McBratney do not constitute ineffective assistance of counsel.”
Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 287) requires district courts to “make findings of fact and conclusions of law on all issues presented” in a motion pursuant to K.S.A. 60–1507. Whether the district court's findings of fact and conclusions of law comply with Rule 183(j) is a question of law that is reviewed de novo. Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009).
The State correctly notes that Tatum did not object to the adequacy of the district court's findings of fact and conclusions of law. In order to give the district court the opportunity to correct inadequacies, litigants and their counsel generally bear the responsibility of objecting to such errors and in the absence of an objection, omissions in findings will not be considered on appeal. See State v. Herbel, 296 Kan. 1101, 1119, 299 P.3d 292 (2013). Without an objection, our court presumes the district court found all the facts necessary to support its judgment, but we may consider a remand if the lack of specific findings precludes meaningful review. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).
There was substantial evidence presented at the K.S.A. 60–1507 hearing that supported the district court's finding “that the actions of Ms. McBratney do not constitute ineffective assistance of counsel.” McBratney testified that she spoke with Young, the only person Tatum identified to her as an alibi witness, and Young did not “say anything that was going to help [Tatum].” McBratney also testified that she believed, based on the lack of any mention of Hollowin in her notes and case file, that Tatum never identified Hollowin to her as a potential alibi witness. Likewise, McBratney's case file and notes did not mention Melissa Shaw. McBratney also testified that (1) a written account of the charges from Tatum's perspective, prepared by Tatum, did not indicate Tatum had an alibi; (2) numerous meetings with Tatum and/or his mother did not include discussion of an alibi; and (3) Tatum instructed McBratney not to call witnesses at trial and to explore an intoxication defense.
Tatum provided evidence at the evidentiary hearing that conflicted with McBratney's testimony. But an appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). On the issue of whether McBratney's performance was constitutionally deficient, we presume the district court found all the facts necessary to support its conclusion that McBratney provided effective assistance of counsel. Vaughn, 288 Kan. at 143, 200 P.3d 446.
Even if Tatum had established that McBratney's performance was constitutionally deficient, he also needed to establish that counsel's deficient performance prejudiced the defense in order to prevail on his claim of ineffective assistance of counsel. Burnett, 300 Kan. at 452, 329 P.3d 1169. In this regard, we note with significance that neither Shaw, Young, nor Hollowin testified at the evidentiary hearing in order to support Tatum's claim that these witnesses would have provided an alibi defense. The burden of proof at the hearing was on Tatum to establish grounds for relief by a preponderance of the evidence. See Rule 183(g) (2014 Kan. Ct. R. Annot. 285). Tatum provided no details at the evidentiary hearing as to what his alibi witnesses would have said, except that Tatum alleged that he had been with Shaw and Young the entire day of the murder and they had not been in Wyandotte County. Without corroborating testimony from the alleged alibi witnesses, Tatum failed to meet his burden of establishing that McBratney's alleged deficient performance prejudiced the defense, which required a showing that counsel's errors were so severe as to deprive Tatum of a fair trial. See Burnett, 300 Kan. at 452, 329 P.3d 1169.
In summary, the record on appeal provides substantial competent evidence to support the district court's conclusion that the actions of McBratney did not constitute ineffective assistance of counsel. Tatum fails to establish on appeal that the district court erred in denying his claim for relief under K.S.A. 60–1507.
Affirmed.