IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 98,563
CHRISTOPHER M. TROTTER,
Appellant.
v.
STATE OF KANSAS,
Appellee,
SYLLABUS BY THE COURT
1. A defendant's convictions arising out of a double homicide, one for capital murder based upon the intentional and premeditated killing of more than one person under K.S.A. 21-3439(a)(6) and the other for the first-degree premeditated murder under K.S.A. 21-3401(a) of one of those victims, are improperly multiplicitous.
2. Generally, issues not raised before a district court, including constitutional grounds for reversal, cannot be raised for the first time on appeal.
3. Three commonly cited circumstances where an issue, including a constitutional issue, can be presented for the first time on direct appeal are: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and the issue is finally determinative of the case; (2) resolution of the question is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the district court reached the right conclusion but relied on the wrong ground or assigned a wrong reason for its decision.
4. Another exception to the rule that an issue may not be raised for the first time on appeal applies when the issue relates to a court's subject matter jurisdiction. Subject matter jurisdiction may be raised at any time, and a party does not waive jurisdictional defects by not objecting to the procedure in district court.
5. When a multiplicity issue is raised in a K.S.A. 60-1507 motion, a movant must show exceptional circumstances excusing the failure to raise the issue on direct appeal.
6. K.S.A. 22-3504(1) creates a remedy for an illegal sentence, allowing the court to correct an illegal sentence at any time. An "illegal sentence" has been defined to mean a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.
7. A claim that sentences are multiplicitous is not a claim that the sentences were imposed by a court without jurisdiction as is necessary to come within the narrow definition of illegal sentence under K.S.A. 22-3504(1).
8. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised in a K.S.A. 60-1507 motion even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.
9. A K.S.A. 60-1507 movant can overcome the failure to raise an issue at trial or on direct appeal and demonstrate exceptional circumstances by persuading a court that there was ineffective assistance of trial counsel in failing to object regarding an issue; there was 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.
10. Claims of ineffective assistance of counsel, as a general rule, cannot be raised for the first time on appeal. Rather, in most cases a district court must consider the evidence to determine the two-prong test for establishing ineffective assistance of counsel, which requires a defendant to show (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) defendant was prejudiced to the extent that there was a reasonable probability of success but for counsel's deficient performance.
11. Under extraordinary circumstances an appellate court may consider a claim of ineffective assistance of counsel for the first time on appeal if there are no factual issues and the two-prong ineffective assistance of counsel test can be applied as a matter of law based upon the appellate record.
12. A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.
13. A district court considering a K.S.A. 60-1507 motion has three options. First, the court may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the movant's motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the movant. Finally, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. In the event the court determines that the issue or issues are not substantial, the court may move to a final decision without the presence of the movant. If the issue or issues are substantial, involving events in which the movant participated, the court must proceed with a hearing in the presence of the movant.
14. The standard of appellate review for the summary dismissal of K.S.A. 60-1507 motions is de novo, requiring an appellate court to determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief.
15. Under the facts of this case, a K.S.A. 60-1507 movant alleging ineffective assistance of counsel in failing to request an eyewitness instruction fails to establish the prejudice prong of the ineffective assistance of counsel test, and the district court did not err in summarily dismissing the claim.
16. An evidentiary hearing is not justified on a K.S.A. 60-1507 movant's claim of perjured and recanted testimony unless the motion establishes that the altered testimony is material and would cause the exoneration of the movant.
17. Under the facts of this case, a K.S.A. 60-1507 movant failed to establish that allegedly perjured testimony was material, would exonerate the movant, or would entitle the movant to relief.
Appeal from Wyandotte district court; JOHN J. McNALLY, judge. Affirmed in part and reversed in part. Opinion filed January 30, 2009.
Rebecca E. Woodman, of Capital Appellate Defender Office, argued the cause and was on the briefs for appellant.
Michael A. Russell, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Stephen N. Six, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: Christopher M. Trotter appeals the district court's summary denial of his K.S.A. 60-1507 motion, raising arguments that we have grouped into two issues for purposes of our analysis.
First, may this court consider whether Trotter's convictions for capital murder and first-degree premeditated murder are multiplicitous when the issue is raised for the first time on appeal from a summary denial of a K.S.A. 60-1507 motion and, if so, grant relief? We answer this question, "yes." Under the extraordinary circumstances of this case, the defendant successfully establishes a claim of ineffective assistance of counsel for failing to raise a meritorious multiplicity issue on direct appeal, and resolution of the issue can be considered as a matter of law based upon the appellate record.
Second, did the district court err in summarily dismissing Trotter's pro se K.S.A. 60-1507 motion that claimed (a) trial counsel was ineffective for failing to request an eyewitness instruction and (b) affidavits of codefendants, in which they stated they had committed perjury, constituted newly discovered evidence warranting a new trial? We answer this question, "no." The motion, files, and records of the case conclusively show that Trotter is not entitled to relief.
Factual Background
Although the facts are fully discussed in State v. Trotter, 280 Kan. 800, 127 P.3d 972 (2006) (Trotter I), a brief discussion is necessary to explain the issues in this appeal, particularly regarding those facts that relate to the issues of the eyewitness instruction and recanted testimony of two of Trotter's codefendants, Kevin Eddington and Virdal Nash.
At trial, the State presented evidence that Trotter shot and killed Traylennea Huff and James Darnell Wallace during the course of an aggravated robbery, which Trotter and others had planned in the hopes of stealing cash they believed to be in Huff's and Wallace's home. Trotter's codefendants testified that Trotter, who knew the victims, approached them about the possible robbery, and the group discussed a plan to enter the home, restrain the victims, and steal the money.
In addition, the codefendants testified regarding their intrusion into the home and the events that led to Trotter's shooting of Huff and Wallace. Codefendants Michael Navarre and Eddington, both of whom had accepted the State's offer to dismiss the first-degree murder charges against them if they testified against Trotter, were at the scene of the crime throughout the incident and both provided similar, although not identical, accounts. According to their testimony, after cutting telephone wires and attempting entry into the victim's home, the group retreated to some nearby woods where they waited until Wallace came out of his home. At that point Trotter rushed Wallace. Wallace struggled with Trotter and removed a shirt Trotter had wrapped around his face as a mask.
In the meantime, Navarre and Eddington went into the home and up the stairs to a hallway where they found Huff as she was coming out of her bedroom. They put a plastic tie on Huff's wrists and asked her where the money was hidden. While they were restraining Huff, a young boy opened his bedroom door. Eddington testified he pushed the boy back into his bedroom and then took Huff into her bedroom where she said the money could be found. As Eddington and Navarre took money from under the bed, they heard a gunshot. Both Eddington and Navarre testified that they left the home immediately, leaving Huff in her room. In addition, both testified that as they came down the stairs they met Trotter as he was coming into the home and up the stairs. When Eddington and Navarre were outside running away from the home, they heard another gunshot.
Codefendant Nash, who also received a favorable plea arrangement in exchange for his testimony, testified he went with the others to the scene, left while the group was waiting in the woods before the home invasion, and returned just as the others were fleeing the home. According to Nash, Eddington told him that Trotter had shot Wallace and Huff. Nash also testified that he heard Trotter say: "All he had to do was just lay down. I wouldn't have had to kill him."
In addition, Huff and Wallace's 8-year-old son, Damante, testified to what he saw and heard when noises woke him during the encounter. Among other things, Damante testified he got up from his bed, looked out of his bedroom door, and was pushed back into his room by a man who was in the hallway with his mother. Damante testified he returned to his bed but could still see out of his room. He was aware of the movement of two people at the top of the stairs, and he knew one of the people was his father because he heard his father say, "Chris." Soon thereafter, Damante heard gunshots.
Damante's ability to identify Trotter as the "Chris" who was at the scene of the crime was a point of contention during Trotter's trial. The jury heard of several occasions when Damante was asked to identify Trotter. The first occurred a day or two after the murder when police showed Damante a picture of Trotter. Damante identified the person as "Rock" and told police he had not seen "Rock" during the incident. Then, several months later, Damante was again shown Trotter's picture and on this occasion he stated, "That kind of looks like the one that was in our house." Finally, during his trial testimony, Damante was asked if he knew anyone in the courtroom; he responded that Trotter was the "Chris" he knew. On cross-examination, Damante testified that the "Chris" he was identifying was the person who had pushed him back into his room.
In the defense's closing argument, counsel argued that Damante's identification of Trotter as the person in the home was a product of suggestion. Defense counsel bolstered that argument by pointing to Damante's inability to identify Trotter's photograph a day or two after the shooting and to Damante's growing confidence in his identification as the prosecution progressed. In addition, defense counsel focused on Damante's identification of Trotter as the person who shoved him. Counsel emphasized that this testimony was inconsistent with Eddington's testimony that Eddington was the one who had pushed the boy, it created a doubt as to whether Trotter was the shooter, and it allowed an inference that Eddington was the one who had actually fired the shots that killed Wallace and Huff.
The State, on the other hand, noted that Damante had testified that the person who pushed him was wearing latex gloves. All of the codefendants testified that Trotter wore baseball batting gloves while they wore latex gloves. The State also emphasized that in Damante's initial contact with police, which occurred shortly after the incident, Damante told them his father's friend "Chris" was involved. It was this immediate statement that caused police to ask Wallace's family if Wallace knew a "Chris," and their responses led police to Trotter. In addition, the State emphasized that the other evidence–which was primarily the testimony of the codefendants–pointed to Trotter as the shooter.
No physical evidence linked Trotter directly to the crime, although physical evidence did corroborate that the shots that killed both victims were fired from one gun, the gun which the codefendants testified was in Trotter's hands the entire time.
After hearing this testimony and the other evidence more fully described in Trotter I, 280 Kan. 800, the jury found Trotter guilty of the capital murder of Huff, the first-degree premeditated murder of Wallace, aggravated robbery, and conspiracy to commit aggravated robbery. The jury also considered whether to impose the death penalty and decided not to do so. Subsequently, the district court sentenced Trotter to concurrent sentences of life for each murder conviction without eligibility for parole for 50 years, 79 months for the aggravated robbery conviction, and 32 months for the conspiracy conviction.
On direct appeal, Trotter raised issues involving (1) the district court's failure to give an unrequested instruction on eyewitness identification, (2) the court's admission of evidence that Huff was pregnant at the time of the murders, (3) the State's use of peremptory challenges to eliminate 9 of the 10 African-American jurors from the venire panel, and (4) the sufficiency of the evidence to support his convictions for capital murder and first-degree premeditated murder. Trotter I, 280 Kan. 800. This court rejected Trotter's contentions and upheld his convictions.
Less than 1 year later, Trotter filed a pro se K.S.A. 60-1507 motion claiming (a) ineffective assistance of trial counsel for failing to request an eyewitness jury instruction and (b) newly discovered evidence involving recanted testimony of witnesses. Attached to the motion were affidavits from codefendants Nash and Eddington, each attesting that their testimony against Trotter was untrue.
Nash began his affidavit by stating: "With this letter I do solemnly affirm that the statement I made in my preliminary hearing against myself and co-defendants Christopher Trotter, Kevin Eddington, Micheal [sic] Navarre and James Trotter was made up and un-true." (Emphasis added.) He indicated the police showed him pictures of the crime scene, "facts and points and a run down of the statements made by Kevin and Michael." Nash attested he "took the facts [the police] showed me and the run down from the previous statements made and came up with a believable statement." He also stated repeatedly that he was not there, concluding his affidavit by stating he had
"no first hand account of what took place that day of this crime or any role or roles taken place by Chris Trotter, Mr. Eddington or Mr. Navarre.
"I simply was not there! And I am only a pawn used by the D.A. because I'm a relative [of Trotter's] and would be a convincing argument for her case."
Eddington's affidavit was shorter, stating:
"I[,] Kevin Eddington[,] being of sound mind, swear that the statement I made against Christopher Trotter at his trial was untrue! It was made clear to me by the police and D.A. that the only person they wanted was Christopher Trotter! As I have always stated from the beganing [sic] before I made any statement the police made it clear that Chris Trotter had to be the the [sic] master mind behind this whole crime! So I made my statement and testmonies [sic] match up to what they wanted to hear!"
After reviewing these filings, the district court summarily denied Trotter's K.S.A. 60-1507 motion without appointing counsel or conducting an evidentiary hearing. In a memorandum decision, the district court first addressed Trotter's claim that his counsel was ineffective because an eyewitness instruction was not requested. The district court pointed out that this court in Trotter I had found no error in the trial court's failure to give an eyewitness instruction. Consequently, the district court found that Trotter's trial counsel did not provide ineffective assistance on the matter. With respect to the claim of newly discovered evidence and the affidavits of Nash and Eddington, the court stated:
"Nash's affidavit reiterates his testimony at trial that he was not present when these homicides took place and has no first hand knowledge of them. Eddington's affidavit states that 'the statement I made' against petitioner at trial was untrue. Eddington testified at length during petitioner's trial, and he is not specific regarding the 'statement' to which he refers. Neither affidavit provides a basis upon which relief could be granted."
Now, Trotter appeals from the district court's summary denial of his K.S.A. 60-1507 motion. This court has jurisdiction over the appeal under K.S.A. 22-3601(b)(1) (life sentence; off-grid crime).
1. Multiplicity
Trotter contends his conviction for one count of capital murder and one count of first-degree premeditated murder–convictions which arose out of the double homicide–are improperly multiplicitous and, therefore, his first-degree premeditated murder conviction must be reversed. This issue is being raised for the first time on appeal.
In making the argument, Trotter notes the manner in which the State pled the count of capital murder under K.S.A. 21-3439(a)(6), the intentional and premeditated killing of more than one person. The State alleged that Trotter did
"unlawfully, feloniously, and intentionally and with premeditation, kill a human being, to-wit: Traylennea Huff, which constituted the killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct, in violation of K.S.A. 21-3439."
Trotter argues this count required proof of the premeditated murder of more than one person, meaning the State was required to prove the same elements as in the first-degree murder count, which alleged the premeditated murder of Wallace.
He points to the jury instructions for further support. The jury was instructed that one of the elements to be proved in the capital murder charge was that "the premeditated and intentional killing of Traylennea Huff and James Wallace were part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct." The jury was also instructed that first-degree premeditated murder is a lesser included offense of capital murder and was given the option of finding Trotter guilty of the first-degree premeditated murder of Huff.
Although Trotter does not object to the manner in which the charge was pled or to the instructions, he argues the first-degree premeditated murder of Wallace–which was charged as a separate count–was also a lesser included offense of the capital murder charge. As a result, he suggests his conviction for the first-degree premeditated murder of Wallace must be reversed because K.S.A. 21-3107(2) provides a "defendant may be convicted of either the crime charged or a lesser included crime, but not both." (Emphasis added.)
In presenting this argument in his appellant's brief, Trotter relies primarily upon this court's decision in State v. Martis, 277 Kan. 267, Syl. ¶ 1, 83 P.3d 1216 (2004). In Martis, the defendant was charged with capital murder under K.S.A. 21-3439(a)(6), the intentional and premeditated killing of more than one person. The district court gave lesser included instructions of first-degree premeditated murder, as defined by K.S.A. 21-3401(a), relating to both victims, and Martis was convicted on both lesser included offenses. On appeal, Martis argued he could not be convicted of two lesser included offenses arising from one charged count. This court disagreed and approved the instructions holding that a district court "is required to give lesser included instructions for each victim set forth in the capital-murder charge." 277 Kan. 267, Syl. ¶ 2. Applying Martis' holding that the first-degree murder was a lesser offense, Trotter invokes the prohibition in K.S.A. 21-3107(2) against convictions for both the crime charged and a lesser included offense.
Subsequently, in a letter of additional authority filed pursuant to Supreme Court Rule 6.09 (2008 Kan. Ct. R. Annot. 47), Trotter cited State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008), which raised the same issue as we consider here, but under a previous version of K.S.A. 21-3107. The statute, as considered in Scott, stated:
"Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
"(a) A lesser degree of the same crime;
"(b) an attempt to commit the crime charged;
"(c) an attempt to commit a lesser degree of the crime charged; or
"(d) a crime necessarily proved if the crime charged were proved." K.S.A. 21-3107(2) (Furse).
Scott based his argument on the "necessarily proved" language of K.S.A. 21-3107(2)(d) (Furse), which was deleted from the statute effective July 1, 1998. L. 1998, ch. 185, sec. 1.
The State in Scott did not dispute that the first-degree murder of more than one victim must be necessarily proved in order to prove capital murder, and this court accepted that conclusion. Consequently, the focus of this court's analysis was on whether the conviction for first-degree murder must be reversed. We explained:
"Although multiple punishments for the same crime are constitutionally prohibited, this prohibition extends only to prevent a sentencing court from prescribing greater punishments than the legislature intended. [Citations omitted.] The Double Jeopardy Clause is not violated where the legislature specifically authorizes cumulative punishment under two statutes for the same offense. [Citation omitted.]
"The issue is whether the Kansas Legislature intends cumulative punishment for capital murder under K.S.A. 21-3439(a)(6) and first-degree premeditated murder under K.S.A. 21-3401(a). We conclude the answer is 'no.'" 286 Kan. at 65-66.
In reaching the conclusion the legislature did not intend cumulative punishment, we examined various Kansas statutes and cases from Virginia, noting that the relevant portion of the Kansas Death Penalty Act, K.S.A. 21-3439(a)(6), is patterned after a similar provision in the Virginia Death Penalty Act and, therefore, Virginia precedent could reflect the Kansas Legislature's intent. After discussing these authorities, we stated:
"We are unable to conclude from a plain reading of K.S.A. 21-3439(a)(6) and its legislative history that the legislature intended to override the acknowledged reach of K.S.A. 21-3107(2)(d). In other instances, the legislature has not hesitated to state when K.S.A. 21-3107(2) is not to be applied. See K.S.A. 21-3436 (precluding application of K.S.A. 21-3107[2] to specific felony offenses regardless of whether such felony is distinct from the alleged homicide). Here, there has been no such declared legislative intent. Accordingly, we conclude Scott's conviction for the first-degree premeditated murder of [the victim in the noncapital count] must be reversed." 286 Kan. at 68.
Trotter asserts that Scott controls, and his conviction for the first-degree murder of Wallace must also be reversed.
Application of Scott to this case is not as straightforward as Trotter suggests, however, because there are two potential distinctions. First, the "necessarily proved" language relied upon in Scott had been deleted from K.S.A. 21-3107 before Huff and Wallace were murdered. Second, Scott raised the multiplicity issue before trial and again on direct appeal. 286 Kan. at 62, 65. In contrast, Trotter raises the issue for the first time in this appeal from a summary denial of a K.S.A. 60-1507 motion.
Regarding the first potential distinction, the determination of whether the first-degree murder of Wallace was a lesser included offense must be determined by the statute in effect at the time Huff and Wallace were murdered. That version of the statute, which is still in effect, states:
"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
"(a) A lesser degree of the same crime;
"(b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
"(c) an attempt to commit the crime charged; or
"(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b)." K.S.A. 21-3107(2).
Because this provision does not include the "necessarily proved" language relied upon in Scott, that decision does not control the question of whether Trotter's first-degree premeditated murder conviction was a lesser included offense of the capital murder conviction.
This question is answered by the decision in Martis, however, which held that first-degree premeditated murder was a lesser included offense of capital murder by application of K.S.A. 21-3107(2)(b), "a crime where all elements of the lesser crime are identical to some of the elements of the crime charged." Martis, 277 Kan. at 276.
Given that Martis establishes that Trotter's first-degree premeditated murder conviction is a lesser included offense of his capital murder conviction, the remainder of the Scott analysis of this issue applies: K.S.A. 21-3439(a)(6) does not express a legislative intent contrary to that expressed in K.S.A. 21-3107(2), which unambiguously states a defendant may not be convicted of both a charged crime and a lesser included offense. Hence, under Martis and Scott, Trotter's two convictions arising out of the double homicide, one for capital murder based upon the intentional and premeditated killing of more than one person under K.S.A. 21-3439(a)(6) and the other for first-degree premeditated murder under K.S.A. 21-3401(a) of one of those victims, are improperly multiplicitous.
The other potential distinction is that Scott raised the multiplicity issue before his trial and again on direct appeal. In this case, the issue was not raised during the trial proceedings, on direct appeal, or during the district court proceedings on the K.S.A. 60-1507 motion. Generally, issues not raised before a district court, including constitutional grounds for reversal, cannot be raised for the first time on appeal. See State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007); State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007).
Acknowledging this general rule and recognizing the procedural difficulties of raising an issue for the first time on appeal, Trotter maintains (a) his sentences are "illegal" because the trial court lacked jurisdiction to permit the convictions of both capital murder and first-degree premeditated murder for the double homicide and (b) alternatively, exceptional circumstances exist that excuse Trotter's failure to raise the issue on direct appeal. Based on these arguments, Trotter contends he is entitled to bring a request for relief.
Trotter's arguments and our analysis require us to consider several exceptions to the general rule that an issue cannot be considered for the first time on appeal. These exceptions have developed into at least the following three general categories that are relevant to our discussion: (1) those which apply to direct appeals in civil and criminal cases generally; (2) those which apply to claims of an illegal sentence; and (3) those which apply to issues raised in K.S.A. 60-1507 proceedings.
The first category of general exceptions relating to direct appeals appears to have been synthesized into a partial list in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967). There the court recognized three situations where an issue, including a constitutional issue, could be presented for the first time on direct appeal: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and the issue is finally determinative of the case; (2) resolution of the question is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the district court reached the right conclusion but relied on the wrong ground or assigned a wrong reason for its decision. The Pierce exceptions have been frequently cited in subsequent cases. See, e.g., State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 1, 194 P.3d 1195 (2008).
However, as Trotter notes, there are other exceptions, including one allowing an issue relating to the court's subject matter jurisdic