State v. Cheatham

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 95,800

STATE OF KANSAS,
Appellee,

v.

PHILLIP D. CHEATHAM, JR.,
Appellant.


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.

2



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.
3




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.

Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed January 25, 2013.
Reversed and remanded.

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
4




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
5



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
6



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
7



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.
8




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?

"A. [Hawver]: Correct.

"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?

"A. [Hawver]: Yes.

"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."

9



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
10



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 cocounsel,
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
11



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."

12



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.
13




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
14



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.)

Hawver later 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.)

15



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 State stipulated that Hawver argued to the jury
during the second phase that whoever committed the crime deserved to die.

The Van Cleave hearing regarding ineffectiveness during the guilt phase of the
original trial was held on November 30, 2009. Cheatham presented three witnesses:
Hawver, Scalia, and Charles Rogers, an expert on defense performance in death penalty
16



cases. The State called no witnesses but cross-examined Hawver and Rogers. Cheatham
was allowed to question Hawver directly.

In its order the Van Cleave court concluded that Hawver "had no business taking
on a death penalty case." It also found there were "several areas where trial counsel's
performance was deficient." But despite this, the court determined that Cheatham failed
to establish Hawver's deficiencies sufficiently prejudiced the defense during the guilt
phase. And regarding the penalty phase, the court held that Hawver was ineffective
during the penalty phase and ordered a new penalty phase trial—consistent with the
parties' stipulation.

New counsel was appointed for Cheatham, and his direct appeal to this court
resumed. We ordered bifurcation of the ineffective assistance of counsel claims from the
other issues in the appeal as authorized by K.S.A. 21-4627(d) (court may "enter such
orders as are necessary to effect a proper and complete disposition of the review and
appeal" in death penalty cases). We instructed the parties to brief only whether the Van
Cleave court's decision on the ineffective assistance of counsel claim in the guilt phase
was error. Additional facts are discussed as necessary to the arguments.

ANALYSIS

Cheatham's brief asserts ineffective assistance of counsel arguments under both
the Sixth Amendment to the United States Constitution and section 10 of the Kansas
Constitution Bill of Rights. Neither Cheatham nor the State suggests different standards
apply for the state constitutional provision.

The Sixth Amendment guarantees in "all criminal prosecutions" that "the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defence." And this right
17



to counsel is the right to the effective assistance of counsel. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984);
State v. Gonzales, 289 Kan. 351, 357, 212 P.3d 215 (2009); Chamberlain v. State, 236
Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland). In other words, to be
meaningful the right to counsel necessitates more than a lawyer's mere presence at a
proceeding. State v. Galaviz, 296 Kan. ___, Nos. 101,084, 101,085, filed December 28,
2012, slip op. at 8. In addition, this constitutional right extends a duty of loyalty to the
client. A defendant in a criminal trial must have "'representation that is free from conflicts
of interest.'" Boldridge v. State, 289 Kan. at 622 (quoting Wood v. Georgia, 450 U.S. 261,
271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 [1981]). "The purpose of the effective assistance
guarantee 'is simply to ensure that criminal defendants receive a fair trial.'" Galaviz, 296
Kan. at ___, slip op. at 8 (quoting Strickland, 466 U.S. at 689)]. This Sixth Amendment
right to counsel is made applicable to state proceedings by the Fourteenth Amendment to
the United States Constitution. 296 Kan. at ___, slip op. at 8

The Kansas Constitution Bill of Rights, section 10, provides in pertinent part: "In
all prosecutions, the accused shall be allowed to appear and defend in person, or by
counsel. . . ." This court has previously applied Strickland as the "touchstone case" when
a defendant alleged ineffective assistance of counsel under both the Sixth Amendment
and the Kansas Constitution. Ferguson v. State, 276 Kan. 428, 436, 78 P.3d 40 (2003).
Given this precedent, we will do the same because neither party in this case argues
otherwise.

Ineffective assistance of counsel claims—whether based on deficient performance
or conflict of interest—involve mixed questions of fact and law. Boldridge, 289 Kan. at
622. We review the Van Cleave court's underlying factual findings for support by
substantial competent evidence and its legal conclusions based on those facts de novo.
Boldridge, 289 Kan. at 622; Gonzales, 289 Kan. at 358-59.
18




In this case Cheatham alleges both deficient performance and conflicts of interest
infected his trial. Claims of deficient performance may be analyzed differently than those
based on conflict of interest. Galaviz, 296 Kan. at ___, slip op. at 12-13; State v. Gleason,
277 Kan. 624, 650, 88 P.3d 218 (2004) (citing Mickens v. Taylor, 535 U.S. 162, 168, 122
S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 [2002]). We consider first the
deficient performance issues.

DEFICIENT PERFORMANCE

Cheatham argues his trial counsel's deficient performance is demonstrated by
Hawver's: (1) failure to meet the American Bar Association (ABA) standards established
for death penalty representation; (2) lack of preparation time; (3) ignorance of capital
murder litigation, failure to associate with learned counsel, and failure to obtain necessary
training; (4) failure to adequately investigate witnesses and evidence; (5) failure to file
the statutorily required notice of an alibi defense; and (6) introduction and discussion of
Cheatham's prior voluntary manslaughter conviction during voir dire and closing
argument.

Standard of Review

In the deficient performance context, we have consistently said a criminal
defendant must establish:

"'"(1) counsel's performance was deficient, which means counsel made errors so serious
that counsel's performance was less than that guaranteed by the Sixth Amendment, and
(2) the deficient performance prejudiced the defense, which requires showing counsel's
errors were so serious they deprived defendant of a fair trial. Judicial scrutiny of counsel's
19



performance in a claim of ineffective assistance of counsel must be highly deferential. To
show prejudice, the defendant must show a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is probability sufficient to undermine confidence in the outcome.
A court hearing an ineffectiveness claim must consider the totality of the evidence before
the judge or jury." [Citations omitted.]'" Robertson v. State, 288 Kan. 217, 225, 201 P.3d
691 (2009) (quoting Haddock v. State, 282 Kan. 475, 512-13, 146 P.3d 187 [2006]).

This first prong requires a defendant to demonstrate counsel's representation fell
below an objective standard of reasonableness, considering the entire circumstances
attendant to the case. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). When
applicable as it is in this case, one such circumstance is recognition that the allegedly
deficient performance occurred in the context of a death penalty case. Nonetheless,
judicial scrutiny of counsel's performance must be highly deferential and must make
every effort to "eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." 283 Kan. at 90. We indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable assistance. 283 Kan. at 90.

As to the second prong, this court has repeatedly indicated that under Strickland
the defendant must show prejudice by establishing a reasonable probability that the result
would have been different without the deficient performance. And by this, the Court has
explained that "[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694. We have accepted this guidepost
in our prior caselaw. Bledsoe, 283 Kan. at 90; accord Edgar v. State, 294 Kan. 828, 838,
283 P.3d 152 (2012); Gonzales, 289 Kan. at 358; Robertson, 288 Kan. at 225. The
Strickland Court further described this inquiry as follows:

20



"An ineffective assistance claim asserts the absence of one of the crucial assurances that
the result of the proceeding is reliable, so finality concerns are somewhat weaker and the
appropriate standard of prejudice should be somewhat lower. The result of the proceeding
can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of
counsel cannot be shown by a preponderance of the evidence to have determined the
outcome." (Emphasis added.) 466 U.S. at 694.

In another portion of the Strickland decision, the Court explained: "[T]he
defendant must show that the deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable." (Emphasis added.) 466 U.S. at 687.

With this as the framework for our review, we consider each of Cheatham's
deficient performance arguments next.

ABA Guidelines

Throughout his brief, Cheatham argues the ABA Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) establish
standards for an attorney defending a death penalty case, and that Hawver did not meet
those standards. Cheatham then asserts his ineffective assistance of counsel claim
premised on the failure to comply with the ABA Guidelines and the argument that a
failure to meet the ABA Guidelines amounts to deficient performance. We do not agree.

Ineffective assistance of counsel does not turn on what is "prudent or appropriate,
but only what is constitutionally compelled." United States v. Cronic, 466 U.S. 648, 665,
n.38, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (A defendant may "make out a claim of
ineffective assistance only by pointing to specific errors made by trial counsel."). The
United States Supreme Court has held that prevailing norms of practice as reflected in the
21



ABA standards are "guides to determining what is reasonable, but they are only guides."
(Emphasis added.) Strickland, 466 U.S. at 688.

Without weighing in on the wisdom or propriety of following the ABA
Guidelines, we decline to hold that they are coextensive with constitutional requirements.
A failure to comply with the ABA criteria may be relevant in an evaluation into whether
counsel's performance fell below an objective standard of reasonableness, but such failure
is simply one circumstance to be considered—it is not by itself determinative. We
summarize the ABA Guidelines relevant to Cheatham's arguments next, but in doing so
we focus on the particular requirements to defend Cheatham's case and whether any
failure to fulfill those requirements led to specific trial errors.

(1) Hawver's lack of preparation time

Cheatham claims Hawver's representation was deficient because he did not reduce
his workload in order to provide Cheatham with high-quality legal representation. He
cites ABA Guideline 10.3, which states: "Counsel representing clients in death penalty
cases should limit their caseloads to the level needed to provide each client with high
quality legal representation in accordance with these Guidelines." Similarly, Cheatham
claims Hawver violated Guideline 6.1, which instructs agencies representing indigent
clients to "implement effectual mechanisms to ensure that the workload of attorneys
representing defendants in death penalty cases is maintained at a level that enables
counsel to provide each client with high quality legal representation . . . ." Cheatham
asserts that the typical attorney defending a capital case invests several thousand hours in
the representation and argues the 200 total hours Hawver spent on Cheatham's
representation, which included trial time, fell woefully short.

22



The Van Cleave court held "there is no evidence trial counsel's workload was
unmanageable," even though Hawver maintained a full-time law practice and was
running for political office while simultaneously preparing for Cheatham's trial. And it
also declined to find error with Hawver's strategy of going to trial just 4 months after
being engaged to defend Cheatham in order to "put pressure on the prosecution." The
Van Cleave court found Hawver's lack of preparation time was neither deficient nor
prejudicial.

We cannot as easily dismiss the limited time Hawver devoted to Cheatham's
defense. This was a complex criminal trial by any measure, even before considering the
added complications attendant to capital charges for murdering two people and
attempting to murder a third. The State called 23 witnesses in its case-in-chief. But the
limited time spent preparing for Cheatham's defense does not amount to a violation of
Cheatham's right to effective counsel absent a showing of actual trial errors that
prejudiced his defense. See Cronic, 466 U.S. at 666.

In Cronic, the defendant was indicted with two codefendants on federal mail fraud
charges. His retained counsel withdrew shortly before the scheduled trial, and the court
appointed a young real estate lawyer without any criminal law experience. The new
lawyer was allowed only 25 days to prepare, in comparison to the 4 1/2 years the
Government had to investigate and prepare the case. Cronic's counsel did not put on any
defense other than cross-examining the Government's witnesses, including the two
codefendants who testified against Cronic.

The Supreme Court, reversing a decision by the Tenth Circuit Court of Appeals
vacating the conviction, held that "[t]he right to the effective assistance of counsel is . . .
the right of the accused to require the prosecution's case to survive the crucible of
meaningful adversarial testing." 466 U.S. at 656. And a defendant can "make out a claim
23



of ineffective assistance only by pointing to specific errors made by trial counsel." 466
U.S. at 666. It then upheld the conviction because no specific errors had infected the trial.

Although Hawver's lack of preparation time is obvious, our caselaw requires it to
be tied to specific trial errors and not considered on its own to be ineffective assistance of
counsel.

(2) Hawver's ignorance of capital murder litigation, failure to associate with
learned counsel, and failure to obtain necessary training

Similarly, Cheatham argues that capital defense litigation requires specialized
knowledge and skill. He cites ABA Guideline 8.1, which instructs agencies responsible
for approving appointments in capital cases to require attorneys seeking appointment to
complete a rigorous training program that includes, among other things, training in
relevant state, federal, and international law. Cheatham asserts Hawver's lack of death
penalty experience infected Cheatham's trial because Hawver otherwise: (1) would have
understood his inherent conflict of interest; (2) would have understood his duty to
assemble a defense team and adequately investigate or present an alibi defense; (3) would
not have introduced the prejudicial prior voluntary manslaughter conviction; and (4)
would not have been unfamiliar with life-qualifying or death-qualifying the jury.

The Van Cleave court agreed that Hawver's representation was deficient because
of his lack of experience in capital cases, stating:

"It never appears to have dawned on trial counsel to consult, much less affiliate,
with other counsel for a capital case. He told Pat Scalia, of BIDS, that his client was
indigent—in spite of a $50,000 fee. He never referred the case back to the Public
Defender's Office once the capital charge was added. He never consulted with the Public
Defender's Office or [BIDS] for any referral help or guidance in his, now, death penalty
24



case. When contacted by Scalia and advised of the services available, trial counsel never
took advantage of available services. Scalia states she thought there was a mistake,
because she knew trial counsel was not on the list she maintained of death-qualified
private counsel. He was not aware of the ABA Guidelines, which in an extensive format,
were released in February 2003. (The first expansive ABA Guidelines were released in
1989.)"

The Van Cleave court went on to conclude that "[c]ounsel appears to have been
completely unaware and made no attempt, other than reading the law, to learn about
handling a death penalty case as a reasonably effective counsel." The court then conceded
it was "greatly concerned with trial counsel's approach."

But the court again declined to find Cheatham was prejudiced by this because, it
said, Cheatham was simply speculating that Hawver's inexperience was what caused him
to devise a trial strategy, for example, involving the introduction of Cheatham's prior
conviction. It held further that Hawver's unfamiliarity with life-qualifying or death-
qualifying the jury was not prejudicial to the guilt phase because Hawver was familiar
with the facts, reports, and witnesses; and Hawver developed a plausible alternative
theory for who committed the shooting.

Hawver's own testimony confirms the Van Cleave court's finding that his
inexperience was problematic. During his deposition, Hawver testified:

"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 [for] the
preparation and trial of cases such as this one in which the client faces a possible death
sentence."

25



Hawver's failure to familiarize himself with the requirements and resources
available to assist with Cheatham's defense is distressing, if not professionally
irresponsible. And it flies in the face of common sense that he so effortlessly dismissed
the offer from the BIDS executive director to publicly provided assistance, which would
have included furnishing cocounsel, investigators, consultants, and expert witnesses for
his client's defense.

But as stated above, we must consider this inexperience in the context of specific
trial errors claimed under Strickland's two-part test. Cronic, 466 U.S. at 666; Flynn v.
State, 281 Kan. 1154, 1161, 136 P.3d 909 (2006); see also Woods v. Sinclair, 655 F.3d
886 (9th Cir. 2011), vacated on other grounds 132 S. Ct. 1819 (2012) (finding capital
murder defendant's attorneys inexperience and caseload "troubling," but insufficient to
establish ineffective assistance of counsel because defendant must point to "specific acts
or omissions that may have resulted from counsel's inexperience and other professional
obligations"). We address the claimed trial errors next, except for the failure to life- or
death-qualify the jury, which is unnecessary given our other holdings.

(3) Hawver's investigation of witnesses and evidence

Again beginning with the ABA Guidelines, Cheatham argues Hawver had a duty
to obtain the investigative resources necessary to prepare for both phases of Cheatham's
trial and conduct a thorough and independent investigation into Cheatham's guilt. He
argues Hawver did not meet those minimum requirements, citing a host of omissions
including that Hawver did not hire a private investigator, interview witnesses, or attempt
to verify Cheatham's alibi defense. The Van Cleave court declined to find most of these
claimed errors amounted to ineffective assistance of counsel, finding instead the link
between these failings and prejudice to Cheatham speculative.

26



The United States Supreme Court has discussed an attorney's failure to investigate
a client's case on numerous occasions, including Strickland. In that case, the Court stated:

"[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words, 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 judgments." (Emphasis added.) 466 U.S. at
690-91.

Cheatham argues Hawver did not initially make a reasonable decision that would
render a more particular investigation unnecessary. And while we will revisit some of
these assertions again in the context of Cheatham's conflict of interest claim, we hold it is
unnecessary to determine whether Hawver's performance was deficient in this regard
because Cheatham fails to articulate a specific prejudice to the alleged deficiencies.
Instead, in his brief to this court, Cheatham twice alleges simply that "prejudice must be
presumed" without citing any authority to support that assertion.

There are limited circumstances when prejudice is presumed. See Mickens, 535
U.S. at 166 (prejudice presumed if counsel has been actually or constructively denied
during a critical stage of the proceeding); Galaviz, 296 Kan. at ___, slip op. at 14-21. But
Cheatham has not alleged those circumstances, nor do we discern their applicability
based on the record. Accordingly, we hold that Cheatham was required to demonstrate
prejudice and failed to do so.

27



Alibi defense

The Van Cleave court found that Hawver's failure to file the statutorily required
notice of an alibi defense was deficient. It held this specific failure violated an objective
standard of reasonableness because Cheatham's ability to present an alibi defense was
"cut short" by the omission. But it held this error was not prejudicial because Cheatham's
own testimony presented his alibi defense to the jury.

This court has previously held that counsel's failure to file the statutorily required
notice of an alibi defense was deficient and prejudicial when the defendant's sole defense
was alibi. State v. Thomas, 270 Kan. 17, 17, 11 P.3d 1171 (2000) (adopting the Court of
Appeals opinion in State v. Thomas, 26 Kan. App. 2d 728, 731-32, 993 P.2d 1249
[1999]). In Thomas, the failure to file the notice prevented the defendant's sister from
vouching for defendant's whereabouts when the crime occurred. The court held the
sister's testimony could have created reasonable doubt in light of weaknesses in the
State's case, even though she might have had a credibility problem because she was a
family member. 26 Kan. App. 2d at 732.

We agree that Hawver's failure to file the statutorily required notice was deficient
under the facts of this case. But Cheatham again makes no specific argument of prejudice
and again incorrectly argues that prejudice should be presumed. Our review of the facts
confirms the Van Cleave court's holding that no prejudice followed this error.

As noted by the Van Cleave court, "there is no one who can put the Defendant in
Chicago, or on the way to Chicago on December 13, 2003, the date of these shootings."
The court then detailed the specifics regarding each of the three witnesses who could be
considered alibi witnesses and how their testimony or lack of availability would not
support Cheatham's claims. In light of this evidence—or lack thereof—Cheatham has
28



failed to establish prejudice. But in so deciding, we note the distinction between the
failure to have these alibi witnesses available and Hawver's own potential to be an alibi
witness, which is discussed in the conflict of interest section below.

Prior manslaughter conviction and inflammatory characterizations

Cheatham argues next that introduction of his prior voluntary manslaughter
conviction, while simultaneously having his attorney repeatedly portray him to the jury as
a "professional drug dealer" and "shooter of people," constituted ineffective assistance of
counsel. He argues any "strategy" for making these declarations was based upon
Hawver's misunderstanding of the law or misguided perception of what constituted a
proper trial strategy and was prejudicial to his defense. Hawver exposed the jury to this
disparaging information in three ways.

First, during jury selection, he told potential jurors about Cheatham's prior
convictions for manslaughter and cocaine possession and then turned to Cheatham and
had him verbally confirm these facts. Hawver then highlighted this disclosure by
acknowledging that providing this damaging information "goes against all of the precepts
of the average criminal defense lawyering [sic]." Second, during trial, Hawver had
Cheatham describe in detail the shooting that led to the voluntary manslaughter
conviction. This then opened the door for the State on cross-examination to show that
Cheatham shot that victim four times—once in each arm and twice in the neck. The State
was even able to show Cheatham an exhibit that displayed entry wounds to the victim,
which was admitted without objection. Finally, during closing argument Hawver pointed
out Cheatham's conviction again, stating, "My client has killed someone. My client is a
dope dealer. My client is not a boy scout." And after making these remarks, he said, "I
know that it is almost asking some sort of superhuman fiction for you all to not take into
account Phillip Cheatham's background."
29




Hawver did these things even though the State had offered before trial simply to
stipulate that Cheatham was a convicted felon for the purposes of the criminal possession
of a firearm charge so that the jury would not know that Cheatham was previously
convicted of voluntary manslaughter or the details of that crime. And Hawver agreed to
the stipulation by indicating that the State would "memorialize it" for the court. But
presumably sometime between that hearing and trial, Hawver had a change of heart and
decided to introduce the prior conviction himself.

The State argues that informing the jury of Cheatham's prior voluntary
manslaughter conviction was not deficient because it was part of a strategy to be honest
with the jury. And, citing the Van Cleave court's decision, the State speculates there was
a possibility that Cheatham might have accidentally opened the door to this information
while testifying in his own defense, so it was reasonable to share this information first.
But the State also acknowledges "this strategy may . . . have been unusual." And more
importantly, the parties and the Van Cleave court accept that the evidence was otherwise
inadmissible—absent Hawver's decision to introduce it himself.

We agree the prior conviction would have been inadmissible during the guilt phase
once the State took its relevance to the firearm charge off the table and conceded that
admission of the crime's details could be more prejudicial than probative. And while we
are not called upon to decide an admissibility question under K.S.A. 60-455, we note that
its protections extended to Cheatham's case. The statute prohibited admission of prior
crimes evidence for the purpose of proving a person's disposition to commit another
crime unless the evidence is used to prove some other material fact, which the State's
stipulation made unnecessary.

30



The statute's narrow rule is based upon recognition that prior crimes evidence can
be more prejudicial than probative. See State v. Boggs, 287 Kan. 298, Syl. ¶ 2, 197 P.3d
441 (2008) (jury may exaggerate prior similar crimes as evidence that defendant likely
committed current crime); State v. Clements, 241 Kan. 77, 84, 34 P.2d 1096 (1987) (prior
crimes evidence cannot be used to infer defendant committed subsequent crime; evidence
barred if its prejudice overbalances the rational development of the case); see also State v.
Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194 (1997) (introduction of prior bad acts can
"easily 'tip the balance against the defendant'"). The statute's purpose against admitting
prior conviction evidence to show propensity was upended by Hawver's use of the
voluntary manslaughter conviction at trial.

During the Van Cleave proceedings, Hawver gave conflicting explanations as to
why he introduced details about the prior conviction. In a deposition prior to the
evidentiary hearing, he testified that he informed the jury of the conviction because he
believed the State would be able to introduce it during the guilt phase of trial because it
was an aggravating factor the State would attempt to prove during the penalty phase. This
misconception is evident by the following exchange:

"A. [Hawver]: Well, I made the decision that, in a sense, it was a capital case, and since
the jury would be informed that he had done what he had to do in capital cases,
unlawfully, feloniously, intentionally and with premeditation, kill more than one person,
that's a capital murder requirement. Um, let's see. Um, where he would be -- it would be
stated that he had committed a crime that would bring him into the capital realm, I
thought it was better to explain to them what the deal was rather than let them wonder
what he had done.

"Q. [Cheatham's counsel]: And so if I understand you, please correct me if I misstate this,
you understood that one of the aggravating factors that the state would attempt to prove if
31



the penalty phase occurred was that Mr. Cheatham had on a prior occasion be convicted
of this involuntary manslaughter?

"A. [Hawver]: I thought they would be able to do that during the guilt phase, the guilt
phase.

"Q. [Cheatham's counsel]: And can you tell me under what theory you believed that
evidence of involuntary manslaughter would have been admissible in the first phase?

"A. [Hawver]: The fact that it was a capital case.

. . . .

"A. [Hawver]: And in order to get a capital case, my understanding you have to have
done something like that prior.

"Q. [Cheatham's counsel]: All right. And so you believe that because they charged it as a
capital case, that would give them the right to produce aggravating factors in the first
phase of the trial?

"A. [Hawver]: Correct." (Emphasis added.)

Hawver then said he attempts to win cases by "telling the truth and letting the facts
set, an understanding of the full scope of the presentation."

This testimony supports Cheatham's arguments on appeal because it suggests
Hawver was confused or uninformed about the difference between the guilt and penalty
phases of a capital murder trial. Our statute provides separate rules governing admission
of evidence for these distinct phases in a capital murder case. See K.S.A. 21-4624(c) (any
evidence the court deems probative may be received in the sentencing proceeding
regardless of its admissibility under the rules of evidence). Had Hawver followed the
32



State's stipulation, Cheatham's prior conviction would have been excluded during the
guilt phase but admissible as an aggravating circumstance supporting a death sentence
during the penalty phase, which would follow the jury's determination as to guilt.

But Hawver's testimony about why he disclosed the prior voluntary manslaughter
conviction changed during the evidentiary hearing, so we must consider that complication
as well. At the hearing, Cheatham's Van Cleave counsel attempted to elicit the same
testimony from Hawver as quoted above from his deposition. And consistent with that
deposition, Hawver initially answered in the affirmative when asked whether he thought
"the State, by right, were going to have to prove the aggravating circumstances against
Mr. Cheatham in the first stage of the trial." Then, Hawver modified his reasoning for
ignoring the stipulation in the following exchange:

"Q. [Cheatham's attorney]: So that meant your understanding of the capital sentencing
and the capital murder statute that you say you read, your understanding of that is that
Mr. Cheatham, his manslaughter conviction was going to come in against him in the
guilt/innocence phase of the trial, right?

"A. [Hawver]: I thought there was a possibility that the manslaughter conviction would
come in during the first phase of the trial. That's why I made the decision, with
[Cheatham's] concurrence . . . that we ought to tell them everything . . . ."

Again attempting to elicit the testimony given during the deposition, Cheatham's
attorney asked Hawver whether he believed the State was going to admit the prior
voluntary manslaughter conviction as part of the State's aggravating factors in the guilt
phase. And Hawver then responded, "No, I thought they would bootleg it in. I thought it
would come in one way or the other." (Emphasis added.)

33



In reaction to that new explanation, Cheatham's attorney tried to impeach Hawver
with the deposition transcript, but Hawver again modified his testimony by indicating he
considered the aggravating factors to be the two murders and the repeated shooting,
omitting from the list Cheatham's prior conviction—the third aggravating factor in the
State's case for imposition of the death penalty. Hawver then testified that he "knew [he]
had a right" to keep the voluntary manslaughter conviction out of the guilt phase, but he
"thought it would come in somehow. I didn't know how. I thought they would try to
bootleg it in and be successful at doing so." (Emphasis added.) Finally, Hawver reiterated
his strategy of being honest and completely up-front with the jury "so that they would
believe [Cheatham]."

Now based primarily on Hawver's deposition testimony, Cheatham argues that
Hawver's trial strategy was a misunderstanding of the law and therefore deficient. The
State ignores Hawver's deposition testimony and focuses on the testimony at the Van
Cleave hearing that Hawver believed the State would bootleg the prior conviction into the
guilt phase. And from that, the State argues Hawver did not pursue this strategy from a
misunderstanding of the law.

The Van Cleave court did not resolve the conflicting testimony and seemingly
accepted both of Hawver's explanations because it found "[i]t is not clear why or how
trial counsel believed '[the conviction] would come in anyway.'" It further found Hawver
"admits confusion about evidence in the guilt and penalty phases," which refers to
Cheatham's argument that Hawver did not understand the State did not need to prove
aggravating factors during the guilt phase. And the Van Cleave court also noted Hawver's
explanation that the State would attempt to bootleg the conviction into evidence but then
held that "trial counsel was also aware that any testifying defendant runs the risk of
'opening the door' to prior conviction history." Ultimately, the court characterized
34



Hawver's strategy as bold and risky and then twice repeated that it was not "per se
deficient."

We hold the Van Cleave court erred to the extent it justified Hawver's actions as
"strategy" based upon the risk that Cheatham would open the door through his own
testimony because Hawver never asserted that as a reason. The Van Cleave court
attributed this justification to Hawver absent evidence in the record. We also hold the
Van Cleave court applied the wrong legal standard when it considered whether admitting
the conviction was "per se" deficient. The issue for that court was whether voluntary
disclosure of these particular facts surrounding the prior conviction was deficient under
the circumstances in this case. And we find that it was deficient because it was a highly
risky gambit that, at worst, was based upon a misunderstanding of the law, or, at best,
nonsensical as evidenced by the contradictory explanations.

The record supports the Van Cleave court's first finding that Hawver
misunderstood the difference between the evidence admissible during the trial's guilt and
penalty phases. This is most evident through Hawver's deposition testimony in which he
explicitly said he believed the State would be permitted to introduce the prior conviction
by virtue of this being a capital case.

Two of our prior decisions finding counsel's misunderstanding of the law are
analogous because those misunderstandings were similarly damaging to the defendant in
some way. In State v. Logan, 236 Kan. 79, 689 P.2d 778 (1984), we held the defendant's
credibility was impaired by his attorney's advice to admit on direct examination prior
convictions involving dishonesty, which was based on an incorrect understanding of the
law, because those admissions allowed the State to cross-examine him on a prior
conviction for a similar crime. Similarly, in State v. Rice, 261 Kan. 567, 932 P.2d 981
(1997), applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
35



674, reh. denied 467 U.S. 1267 (1984), this court held that counsel's advice that the
defendant not testify at trial was deficient because it was not based on a correct
understanding of law or any justifiable strategic considerations. See also Wilkins v. State,
286 Kan. 971, 982, 190 P.3d 957 (2008) (stating the "[m]ere invocation of the word
'strategy' does not insulate the performance of a criminal defendant's lawyer from
constitutional criticism").

Noting that the Van Cleave court did not challenge the credibility of Hawver's
deposition testimony, we hold that Hawver's performance was deficient because he
mistakenly believed the State could introduce the prior voluntary manslaughter
conviction because it was an aggravating factor for the penalty phase. That misguided
plan was based on an obvious misunderstanding of the law, and it cannot be excused as
justifiable trial strategy in this circumstance.

We further find Hawver's second explanation that he was concerned the State
might "bootleg" the conviction into evidence equally untenable. First, the State contacted
Hawver, acknowledged that the prior conviction was inadmissible, and offered to
stipulate that he had a prior felony for the purposes of the gun charge to avoid admitting
the prior conviction. In doing so, the State made a sincere effort to follow the Kansas
rules of evidence. It is mere speculation to argue this was some sort of prosecutorial bait-
and-switch tactic. Second, Hawver admits the State risked a mistrial if it suddenly
changed course during trial and attempted to admit the prior conviction. And third, while
there is sometimes a risk that trial events will result in admission of prior convictions, any
risk must be weighed against the potential prejudice that admitting a prior conviction for
a similar crime has. We can find no justification in the record for assuming such a
significant risk, which our statutes carefully seek to avoid, especially in light of the
surviving victim's testimony identifying Cheatham as the shooter in this case.

36



Finally, the State argues that Cheatham consented to this defense approach, so
Hawver should be relieved of responsibility for having chosen a deficient approach in the
first place. But in Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972), this court
held that technical and professional decisions that require training, skill, and specialized
judgment must rest with the lawyer and that the lawyer, after consulting with the client,
has exclusive control over decisions as to what witnesses to call, whether and how to
conduct cross-examination, what jurors to accept or strike, what trial motions should be
made, and all other strategic and tactical decisions. See also Thompson v. State, 293 Kan.
704, 716, 270 P.3d 1089 (2011); Bledsoe, 283 Kan. at 92.

We hold that Hawver's "strategic" decision to disclose damaging facts that did not
need to be exposed was within the exclusive province of trial counsel and the
responsibility for such decisions that are not objectively reasonable cannot be passed off
to the client or otherwise excused as the State argues. On this claim, Cheatham's claim
has much in common with Bledsoe. We hold the Van Cleave court erred by relying too
heavily on deference to a trial "strategy" that on closer examination had no justifiable
basis in reflection, research, or experience. Hawver's actions in this regard were deficient,
which leads us next to consider prejudice.

The Van Cleave court found Cheatham failed to establish prejudice resulted from
disclosing this information because, it noted, Hawver specifically elicited a promise from
potential jurors during voir dire that they would not consider it in deciding Cheatham's
guilt. And with respect to the voir dire specifically, the district court found no prejudice
because all potential jurors who indicated any difficulty with the prior crimes information
were removed from the panel during the selection process. We disagree with the Van
Cleave court's conclusion that this excuses the deficient performance. These errors,
standing alone, were so prejudicial they denied Cheatham his right to a fair trial.

37



Prior conviction evidence can be very damaging, especially in cases like this when
there are similar crimes being charged. As we have previously explained, a jury may
easily exaggerate the value of the prior crime and conclude because it is similar that the
same defendant committed the one in question. Or, a jury might simply conclude the
defendant deserves punishment because he was a wrongdoer in the past. Finally, the jury
might conclude that because of the defendant's past acts, the evidence on his behalf
should not be believed. Rice, 261 Kan. at 594 (quoting State v. Peterson, 236 Kan. 821,
828, 696 P.2d 387 [1985]). This court has required reversal in some cases when the State
introduces such evidence. See State v. Torres, 294 Kan. 135, 143-54, 273 P.3d 729
(2012) (reversible error when State introduced prior conviction for indecent liberties with
a child at rape trial). See also Stone v. State, 17 S.W.3d 348, 352-53 (Tex. App. 2000) (no
reasonably competent attorney would believe admitting prior murder conviction during
examination of defendant at trial for drugs was sound trial strategy); People v. Ofunniyin,
114 A.D.2d 1045, 495 N.Y.S.2d 485 (1985) (reversible error where trial counsel, after
securing exclusion of prior drug conviction, questioned defendant about it on direct
examination).

Underscoring the magnitude of this disparaging information and its likely impact
is Hawver's closing argument during which he conceded that asking the jury to ignore
Cheatham's background when determining guilt required "some sort of superhuman
fiction." (Emphasis added.) We agree. And coupled with Hawver's inflammatory
characterizations of his own client to the jury, our confidence in the outcome of the jury's
verdict is shaken to its core. These particular errors cannot be excused and require a new
trial.

38



CONFLICT OF INTEREST

Cheatham next argues the fee agreement Hawver entered into with him
demonstrates ineffective assistance of counsel because it fostered one or more conflicts of
interest that adversely affected Hawver's representation. Specifically, Cheatham claims
the unwritten fee agreement was contingent on acquittal, which is per se unethical. In the
alternative, Cheatham argues that if the fee agreement is viewed as a flat fee, the
circumstances under which it was entered provided a financial disincentive for Hawver to
actively investigate or promote Cheatham's defense and further denied Cheatham the
ability to use Hawver as a supporting alibi witness. In other words, Cheatham contends
the alleged conflict of interest arose because Hawver's personal or business interests were
contrary to Cheatham's and that conflict adversely affected Hawver's representation of
Cheatham.

What test governs Cheatham's claim?

We begin by addressing what test governs Cheatham's claim. We conclude that
Cheatham has alleged a conflict of interest and apply the "Sullivan standard" announced
in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). To apply
that test in order to address the parties' arguments, we must determine: (1) what type of
fee agreement Hawver and Cheatham entered; (2) whether it created a conflict of interest;
and (3) whether that conflict adversely affected Hawver's performance.

The district court viewed this question differently as relating only to deficient
performance and found the fee agreement deficient. Using the ABA Guidelines as the
prevailing norms, the Van Cleave court concluded: "It is clear [Hawver] was not aware
of, and did not follow, the ABA Guidelines regarding fees in this matter." And having
made that determination, the district court then considered whether that failing—
39



characterized as a deficient performance claim—prejudiced Cheatham. The district court
concluded he was not prejudiced, stating:

"The Defendant does not offer any evidence as to how the Defendant was prejudiced by
this deficiency. The Defendant's position appears to be that because the ABA Guideline
was not met, there is prejudice. Trial counsel was familiar with the facts, witnesses and
reports in this case. He was able to develop and present a plausible alternative theory as
to who committed these shootings. The Court finds that the Defendant has not shown that
there is a reasonable probability that, but for any error regarding the fee structure in this
case, the outcome of the guilt phase would have been any different." (Emphasis added.)

We must determine whether the Van Cleave court used the appropriate test
because as discussed below the United States Supreme Court has held that at least some
ineffective assistance of counsel claims based on a conflict of interest are determined
using a different standard than those alleging deficient performance. Strickland, 466 U.S.
at 692; Boldridge, 289 Kan. at 622-23; State v. Gleason, 277 Kan. 624, 650, 88 P.3d 218
(2004). We address first whether the Strickland standard should apply to this claim.

When the defendant alleges conflicts of interest arising from multiple concurrent
representations and there was no trial objection, the United States Supreme Court has
held that a criminal defendant must establish: (1) the existence of an actual conflict of
interest between attorney and client; and (2) that the established conflict adversely
affected the adequacy of the attorney's representation. Sullivan, 446 U.S. at 348-49;
Mickens v. Taylor, 535 U.S. 112, 168, 152 L. Ed. 2d 291, 122 S. Ct. 1237, reh. denied
535 U.S. 1074 (2002) (citing Sullivan); see also Boldridge, 289 Kan. at 622-23; Gleason,
277 Kan. at 644-45. But in Mickens, the United States Supreme Court left open whether
the Sullivan rule applies when the conflict alleged does not involve multiple concurrent
representations.

40



In Mickens, the defendant alleged a conflict of interest based upon a successive
representation. The Court applied the Sullivan standard in Mickens because "[t]he case
was presented and argued on the assumption that (absent some exception for failure to
inquire) Sullivan would be applicable." 535 U.S. at 174. And it noted that the parties'
assumption that Sullivan applies was not unreasonable given the federal Court of
Appeals' unblinking application of it to all kinds of alleged attorney conflicts, including
when the representation implicates counsel's personal or financial interests. 535 U.S. at
174 (citing United States v. Hearst, 638 F.2d 1190, 1193 [9th Cir. 1980]).

But the Mickens Court warned future litigants that the language and rationale
underlying Sullivan does not necessarily support its application to other types of conflict
of interest claims. And it held it was an open question whether "Sullivan should be
extended to [successive representation] cases." Mickens, 535 U.S. at 174-76; see also
Schwab v. Crosby, 451 F.3d 1308, 1324 (11th Cir. 2006) (Application of the Sullivan rule
outside of concurrent, multiple representation cases is not clearly established under
Supreme Court decisions.).

Applying Mickens, our court recently summarized the framework for addressing a
conflict of interest claim in State v. Galaviz, 296 Kan. at ___, slip op. at 17. Galaviz
involved a successive representation claim, and this court noted that Mickens left open
whether successive, personal, or financial interest claims were governed by the Sullivan
standard. See Galaviz, 296 Kan. at ___, slip op. at 19 (discussing the "Mickens
reservation"). Like the Mickens Court before it, this court in Galaviz did not decide the
question, opting instead to use the "more lenient" adverse effect standard advocated by
the parties. We held:

"We need not determine whether the adverse effect exception is the appropriate
exception to be applied post-Mickens to successive representation situations because in
41



this case the State does not argue any other test should be applied. Furthermore, like
Mickens, in theory, Galaviz benefitted from this treatment by not being required to meet
the more difficult Strickland test that requires a showing that counsel's performance
resulted in prejudice, which is determined by examining whether the deficient conduct
affected the outcome of the proceeding. [Citation omitted.]" Galaviz, 296 Kan. at ___,
slip op. at 28.

The State has argued that we should apply the adverse effect test to Cheatham's
alleged conflict of interest claims, and we will do so for the same reasons cited in
Galaviz. And on that basis, we conclude the Van Cleave court erred by reviewing this
claim solely under the Strickland standards. Accordingly, we must determine whether the
district court's failure to address whether a conflict of interest actually existed under the
facts as outlined above requires us to remand the case for review under the appropriate
standard.

We faced a similar problem in Gleason and Jenkins when the ineffective
assistance allegations were based upon a claimed conflict of interest that was not
considered by the trial court. We found in both that we had sufficient evidence to make
the necessary legal determinations under our standard of review and remand would serve
no useful purpose. Gleason, 277 Kan. at 649-50; State v. Jenkins, 257 Kan. 1074, 1080,
898 P.2d 1121 (1995).

And as with Gleason and Jenkins, we have carefully reviewed the Van Cleave
court's decision and the case record. We have determined that all facts necessary for
resolution of Cheatham's conflict of interest arguments are contained in the record before
us, and many necessary findings were made by the Van Cleave court in its Strickland
analysis. Therefore, we hold that remand would serve no useful purpose.

42



We consider next whether Cheatham has demonstrated ineffectiveness based upon
a conflict of interest that adversely affected the adequacy of Hawver's representation in
this case. We rule that he has.

What type of fee agreement governed Hawver's representation of Cheatham?

As noted above, the evidence conflicted whether the fee was contingent on
Cheatham being acquitted. In his affidavit, Hawver swore under oath that the fee
arrangement with Cheatham was contingent on acquittal. But in a later deposition, also
taken under oath, Hawver disavowed that statement, and attempted to explain away the
affidavit as simply a document drafted by Cheatham's appellate counsel.

Notably, Hawver also acknowledged that an ethics complaint was pending against
him with the Office of Disciplinary Administrator as a result of the earlier affidavit
because contingent fee agreements under these circumstances are prohibited. KRPC
1.5(f)(2) (2001 Kan. Ct. R. Annot. 471-72) ("A lawyer shall not enter into an
arrangement for, charge, or collect . . . a contingent fee for representing a defendant in a
criminal case.").

At the Van Cleave hearing, Hawver repeated his denial that the fee agreement was
contingent on Cheatham's acquittal. He insisted the engagement was for a flat fee and
declared that Cheatham still owed him the $50,000. And faced with these inconsistencies
in Hawver's sworn testimony, the Van Cleave court found: "The likely answer is that
there was no contingency fee arrangement." Later in its decision, the court with more
certainty stated: "There is no evidence of a contingency fee agreement. The only
evidence is that trial counsel would represent [Cheatham] for $50,000." (Emphasis
added.)

43



These findings contradict themselves. On the one hand, the Van Cleave court
speculates about how the conflict in evidence should be resolved; while on the other
hand, the district court declaratively states there is "no evidence" whatsoever of any
contingent fee arrangement. This latter finding cannot be correct because the affidavit
stated that an unwritten contingent fee agreement existed and that one of its provisions
was that $50,000 would be due "if [Cheatham] was found not guilty on the charges."

Our first question consequently is whether there is substantial competent evidence
to support the Van Cleave court's factual finding that there was not a contingency fee
arrangement. See Ferguson v. State, 276 Kan. 428, 445, 78 P.3d 40 (2003) (district
court's fact findings regarding an ineffective assistance of counsel claim must have
substantial support in the evidence). And as to this, despite the inherent contradiction in
the district court's discussion about the fee agreement, we hold the record supports the
Van Cleave court's finding that Hawver entered into a flat fee agreement with Cheatham.

Put simply, Hawver gave conflicting testimony and the Van Cleave court believed
one version. The district court's factual determination that there was a flat fee agreement
is supported by substantial competent evidence. This resolves Cheatham's first issue with
the fee arrangement in the State's favor. But that does not put to rest the conflict claim.

Did the flat fee agreement create a conflict that adversely affected Hawver's
performance?

As an alternative to his contingent fee arguments, Cheatham contends the fee
agreement, if viewed as a flat fee, provided a financial disincentive for Hawver to fully
investigate or prepare Cheatham's defense under the circumstances of the case. Two
questions must be answered to resolve this claim: (1) Did this fee agreement create a
conflict of interest? and (2) If so, did that conflict of interest adversely affect the
44



adequacy of Cheatham's representation? Mickens, 535 U.S. at 168; Gleason, 277 Kan. at
650. The Seventh Circuit Court of Appeals has said:

"An actual conflict of interest exists if 'the defense attorney was required to make
a choice advancing his own interests to the detriment of his client's interests.' Stoia I, 22
F.3d at 771 (quoting United States v. Ziegenhagen, 890 F.2d 937, 939 [7th Cir.1989]).
Such a conflict has an adverse effect if 'but for the attorney's actual conflict of interest,
there is "a [reasonable] likelihood that counsel's performance somehow would have been
different."' Id. (quoting Frazer v. United States, 18 F.3d 778, 787 [9th Cir.1994] [Beezer,
J., concurring])." Stoia v. United States, 109 F.3d 392, 395 (7th Cir. 1997).

In Winkler v. Keane, 7 F.3d 304 (2d Cir. 1993), a case cited by Cheatham, the
Second Circuit Court of Appeals considered a case in which trial counsel entered into a
contingency fee agreement with his client. Winkler argued the fee agreement created an
actual conflict of interest "because Winkler's interests in effective representation were
pitted against trial counsel's monetary interest." 7 F.3d at 307. The Court of Appeals,
agreeing with Winkler's argument, drew upon Justice Marshall's opinion concurring and
dissenting in Sullivan for the proposition that

"[a]n attorney has an actual, as opposed to a potential, conflict of interest when,
during the course of the representation, the attorney's and defendant's interests 'diverge
with respect to a material factual or legal issue or to a course of action.' [Citation
omitted.]" Winkler, 7 F.3d at 307.

Cheatham also points to the ABA Guidelines in support of his argument that the
fee agreement in this case was improper. These guidelines unequivocally disapprove of
flat fees in death penalty cases, stating:

"The express disapproval of flat or fixed fee compensation provisions and statutory fee
maximums is new to this edition. The provision is in keeping with Guideline 10.1(A) of
45



the original edition, which mandates that counsel be fully compensated at a reasonable
hourly rate of compensation, and follows the commentary to Standard 5-2.4 of the ABA
Standards for Criminal Justice: Providing Defense Services, which observes that '[t]he
possible effect of such rates is to discourage lawyers from doing more than what is
minimally necessary to qualify for the flat payment.'" (Emphasis added.) ABA Guideline
9.1, History of the Guideline.

In other words, the Guidelines unequivocally disapprove of flat fees in death
penalty cases precisely because such fee arrangements pit the client's interests against the
lawyer's interest in doing no "more than what is minimally necessary to qualify for the
flat payment." In this capital case, in which Cheatham faced the death penalty, the fee
agreement entered between Hawver and Cheatham undoubtedly fostered a conflict of
interest. And the circumstances in this case were even more pronounced when, as here,
there was little likelihood of any payment because Cheatham was indigent, which
Hawver knew.

As Cheatham argues, Hawver was no more likely to be paid if Cheatham were
convicted than he would have been under a forbidden contingent fee agreement because
Cheatham was indigent. On the other hand, the incentive to obtain a total acquittal was
absent. And there can be little doubt that, under the fee agreement Hawver and Cheatham
entered, Hawver's and Cheatham's interests diverged. Hawver, a solo practitioner with a
"high volume" law practice requiring near daily court appearances, would have little
financial incentive to invest the significant time commitment a capital case requires. On
the contrary, his incentive would have been to pay attention to those cases whose billable
hours were more likely to produce actual income. Hawver even concedes this point by
testifying that he told Cheatham he was not going to be concentrating full-time on this
case because "[he] had to earn a living."

46



Accordingly, we must determine whether this conflict adversely affected the
adequacy of Hawver's performance. Cheatham maintains the financial disincentive under
which Hawver labored was illustrated by his failure to adequately investigate and prepare
the case and by his failure to withdraw and serve as an alibi witness for Cheatham. We
agree.

Hawver estimated he spent around 200 hours in defense of Cheatham. This is
appallingly low for a death penalty case defense and even more stunning when all but 60
of those hours, as Hawver testified, were spent in trial. In addition, Hawver failed to
retain an investigator or to assemble a defense team to adequately present Cheatham's
case due to an unwillingness to invest the resources this would take. As a result, potential
defense witnesses were never interviewed and possible leads, such as an unexplained foot
print at the crime scene, were never pursued. Hawver admitted openly that he had no
intention of spending his own funds to prepare the case and no intention of taking time
away from his other cases or his political activities. Hawver obviously realized the
questionable nature of his inattention because he had Cheatham acknowledge it in
writing. In sum, Hawver's representation bore a greater resemblance to a personal hobby
engaged in for diversion rather than an occupation that carried with it a responsibility for
zealous advocacy.

Hawver also failed to make himself available as an alibi witness for Cheatham by
serving as his counsel. Cheatham notes that if called to testify, Hawver would have
explained that on the day before the murders, Hawver had advised Cheatham to leave
town because Hawver believed the police were looking for an excuse to arrest Cheatham.
Similarly, Cheatham would have testified that he followed his counsel's advice and left
for Chicago on the afternoon of December 13. And Hawver most certainly could have
provided a measure of credibility to Cheatham's claim that he was in or on his way to
47



Chicago at the time of the murders by taking the stand and recounting to the jury how he
had advised Cheatham to get out of town. But that line of testimony was foreclosed
because Hawver was serving as trial counsel.

Even so, Hawver attempted during closing argument to present this evidence by
stating, "Now when I first got this case, I got a call from Phillip Cheatham in Chicago—"
but the State objected before he could finish because Hawver's argument was beyond the
scope of admitted evidence. Clearly, Hawver recognized too late the contribution his
testimony could have brought to the defense and attempted unsuccessfully to present it.
But becoming an alibi witness would have required him to withdraw from the
representation and forego any claim to a fee or the public attention garnered from serving
as trial counsel in a double homicide trial.

We hold that under the circumstances presented the fee arrangement in this death
penalty case created a conflict of interest for Hawver that adversely affected the
representation of Cheatham in multiple respects. And we hold further that it is not
necessary for Cheatham to show that he was actually prejudiced by Hawver's failure to
adequately pursue his defense or withdraw and provide alibi support. Cheatham's
convictions, therefore, must be reversed and the case remanded for a new trial.

Reversed and remanded.
ROBERT W. FAIRCHILD, District Judge, assigned.
1

1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by art.
3, § 6(f) of the Kansas Constitution, Judge Fairchild was appointed to hear case No.
95,800 to fill the vacancy on the court created by the retirement of Chief Justice Robert
E. Davis.