Peppers v. State

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NOT DESIGNATED FOR PUBLICATION

No. 112,344

IN THE COURT OF APPEALS OF THE STATE OF KANSAS


ANTWAN PEPPERS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed October 23, 2015.
Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., BUSER, J., and WILLIAM R. MOTT, District Judge, assigned.

Per Curiam: In cases collaterally attacking a criminal conviction, appellate courts
will not act as Monday-morning quarterbacks and second-guess trial lawyers who are
forced by circumstances to make tough strategic choices after a thorough investigation of
the law and facts. Defense counsel here laid the groundwork to present an alibi defense.
After further investigation, however, they had good reasons to abandon the defense.
Antwan Peppers now contends his counsel were deficient and his convictions should be
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overturned. We affirm the denial of Peppers' K.S.A. 60-1507 motion for his failure to
show his defense counsels' actions fell below an objective standard of reasonableness.

Antwan Peppers shot and killed a man outside a Topeka bar.

A jury convicted the defendant, Antwan Peppers, of one count of first-degree
murder and one count of attempted first-degree murder for a shooting that occurred at
Terry's Bar and Grill in Topeka, in 2006. The court sentenced the defendant to life in
prison for murder, along with a consecutive 272-month term for the attempted first-
degree murder conviction. The Kansas Supreme Court affirmed the convictions in State
v. Peppers, 294 Kan. 377, 276 P.3d 148 (2012). The facts of the case can be found in that
opinion.

The defendant has attacked his convictions in a K.S.A. 60-1507 motion. The
district court boiled the issues down to one: whether his trial attorneys were ineffective
for failing to contact and investigate an alibi witness. The court took evidence on the
matter.

The defendant argued that his trial team, which consisted of Wendell Betts,
Jennifer Roth, and Scott Gesner—all from the Shawnee County Public Defender's
Office—was ineffective because they failed to contact his cousin, Dante Peppers, who
was a potential alibi witness. The defendant alleged Dante would have testified at trial
that they were together at a nightclub in Lawrence on the night of the shooting. The court
took evidence on the issue. The defendant testified at the evidentiary hearing. He also
called Dante and a third witness, Jesse Forbes.




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We condense the testimony.

Dante testified he was with the defendant on July 15, 2006—the day of the
murder. Dante said he first saw the defendant early in the afternoon and then later in the
evening at his house at 21st and Buchanan in Topeka. Dante testified he and the
defendant hung out at his house drinking with some women and then decided to go to a
club in Lawrence called "The Last Call." The group left Topeka to go to The Last Call
between 11 p.m. and 11:30 p.m.

Dante also testified that he spoke with an acquaintance, who he knew as "J," who
told him he was at Terry's Bar and Grill where the shooting occurred. Dante testified that
right before the defendant's trial he was contacted by defense attorney Betts who asked to
meet with him. He and the defendant's brother, Laren, went to Betts' office but Dante
could not remember what they discussed. He testified he thought he told Betts he was
with the defendant on the night of the murder and that they went out. He did not
remember telling Betts specifically that the group went out to The Last Call but did
remember telling Betts about what "J" had told him.

"J" turned out to be a man named Jesse Forbes who was acquainted with Dante
and the defendant. He testified at the evidentiary hearing that he had been at Terry's Bar
and Grill the night of the murder and saw the victims ordering food inside the bar. After
the victims left the bar and went back to their car, Forbes testified he heard gunshots,
went outside, and saw men running from the scene. He did not recognize any of the men
as the defendant and had not seen the defendant at the bar that night. He testified that
after he heard the defendant had been arrested, he told Dante he was willing to testify on
the defendant's behalf. Dante told Forbes he would pass that information on to the
defendant's attorney. Forbes said he never heard from Betts or any member of the
defendant's legal team.

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Antwan, the defendant, also testified at the evidentiary hearing. He said that
during trial he told his counsel Betts that he needed to contact Dante Peppers because he
would provide an alibi. He did not give him any other names of people he was with on
the night of the murder or provide any details about his whereabouts, and he specifically
did not tell him he was at The Last Call. At trial, the defendant asked Betts why Dante
had not testified and Betts told him that he did not need him.

In response, the State called the three attorneys—Betts, Roth, and Gesner—to
testify. In addition, the State presented the testimony of Terry Walker, the owner of
Terry's Bar and Grill, and Detective Don Kennedy, the lead detective in the case. Betts
testified he had been a criminal defense attorney for 30 years and had participated in 600-
700 jury trials, including up to 100 homicide cases. He was not assigned to the case until
approximately 2 months before trial and was brought in because of his expertise in trying
homicide cases. Gesner and Roth stayed on in support and at least three other attorneys in
the Shawnee County Public Defender's Office assisted with the case.

Why the defendant's defense team did not use the alibi defense is explained.

All three attorneys discussed the alibi defense. Roth testified that as the defense
team reviewed the discovery materials they had received from the State, they came across
a report that mentioned Dawn Diggins—the defendant's former girlfriend—said Dante
and the defendant might have been together at 21st and Buchanan on the night of the
homicide.

Based on this information, Roth and Gesner decided to investigate and corroborate
any alibi. The team filed a notice of alibi, giving the State notice that the defense team
intended to present evidence that the defendant was with Dante at 21st and Buchanan on
the night of the homicide. The notice did not include any other potential witnesses
besides Dante. The defense team had trouble making contact with Dante and finally
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reached him after the trial had started. Gesner spotted Dante outside of the courthouse
and told him to get in contact with Betts to speak about the alibi defense. Dante and
Laren met with the defense team and Dante explained that he and the defendant were at
his house at 21st and Buchanan on the night of the homicide with some people, but did
not specify who all of the people were.

Betts testified that Dante never mentioned going to The Last Call in Lawrence.
Dante also mentioned something about "J" having information but could not provide
Betts with "J's" full name or contact information. Dante said he would have "J" contact
Betts. Betts testified he did not personally attempt to locate or investigate "J" because he
had no information on how to reach him. Betts talked to the defendant about his meeting
with Dante, and the defendant agreed that he was at 21st and Buchanan but provided no
other details about the night and never mentioned going to The Last Call.

After the defense filed its notice of alibi, the State sent Detective Don Kennedy to
interview Dante regarding the alibi defense. Detective Kennedy interviewed Dante after
the trial had begun. In this interview, Detective Kennedy asked Dante to tell him what he
had been doing on the day of the homicide. He did not specifically ask him if he had been
with the defendant because he "didn't want to put words in his mouth." Dante asked
Detective Kennedy what the interview had to do with the defendant and Detective
Kennedy responded he was trying to pinpoint the defendant's whereabouts. Even after
this statement, Dante still did not indicate he had been with the defendant that night.

Detective Kennedy had previously interviewed the defendant in 2006 after the
shooting. Kennedy testified that during the 2006 interview, the defendant had never
mentioned being with Dante at 21st and Buchanan the night of the shooting.

Defense attorney Roth testified she received a report of Detective Kennedy's
interview of Dante about 9 days after the defendant's trial had started. Roth said she
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found the report to be "problematic" to the alibi defense. The defense team was also
concerned about information they had received from Dawn Diggins. An investigator for
the Public Defender's Office spoke with Diggins and she said that the defendant had
called her the night of the murder and asked her to pick him up near Stormont Vail
Hospital and to drive him by Terry's Bar and Grill. Betts testified he spoke with Diggins
and she told him the same story and that if she was called to the stand, she would not lie.
The defense team reviewed Diggins' phone records, which confirmed she had received a
phone call from the defendant about 3-5 minutes after the homicide.

This information was inconsistent with Dante's story about the evening. Diggins'
account of the night of the homicide along with the inconsistencies in Dante's story led
the defense team to decide to abandon the alibi defense. Betts testified he consulted with
Gesner and Roth and made the tactical decision to abandon the alibi defense. Roth also
testified the decision was tactical. The team felt Dante's alibi testimony would be
severely undermined on cross-examination by the inconsistencies arising in the two
interviews with Detective Kennedy. Betts had retained Dante as a possible alibi witness
but dismissed him after the team decided to abandon the alibi defense.

Betts testified he consulted with the defendant about the alibi defense. He told the
defendant if they decided to go forward with the alibi defense, he would have to testify
on his own behalf. He advised the defendant he did not think that was in his best interest,
especially because he felt the trial was going favorably. He testified he never pressured
the defendant to testify, he told him it was his choice, but the defendant decided not to
testify.

Betts did admit he never told the defendant about the information the team had
received from Diggins. When asked why, Betts explained he made a "calculated
decision" not to tell [the defendant] and to not cross-examine Diggins because of the
"highly volatile" environment surrounding the case.
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After all of the evidence was heard, the defendant amended his K.S.A. 60-1507
motion to include an allegation that Betts' failure to share with the defendant the
information he had received from Diggins about the alibi defense also constituted
ineffective assistance of counsel.

In a carefully worded memorandum decision, the district judge found the decision
not to pursue an alibi defense was reasonable trial strategy and did not constitute
ineffective assistance of counsel. The court noted the decision to abandon the alibi
defense was based on various factors, including the information provided by Diggins, and
that Betts did not violate any professional rules when he did not inform the defendant
about Diggins' information. The court denied the defendant any relief.

The defendant raises one argument on appeal.

The defendant argues the district court erred in denying his K.S.A. 60-1507
motion because his trial counsel was ineffective. He claims Betts' failure to tell him about
Diggins' claim that she picked him up and drove him by Terry's Bar and Grill on the night
of the murder constitutes ineffective assistance of counsel. He alleges that he was never
given an opportunity to refute Diggins' statement and the failure to communicate this
information was a violation of the Rules of Professional Conduct and deprived him of his
right to present an alibi defense.

There is no mystery about the rules that govern our consideration of this issue.
Since the defendant does not challenge the district court's findings of fact, we review the
district court's legal conclusions de novo. Allegations of ineffective assistance of counsel
must satisfy the constitutional standards set forth in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This test has also been adopted by the
Kansas Supreme Court. See Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014);
Thompson v. State, 293 Kan. 704, 715-16, 270 P.3d 1089 (2011).
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Under the Strickland test, the movant must establish: (1) that counsel's
performance was constitutionally deficient, which requires a showing that counsel made
errors so serious that his or her performance was less that that guaranteed by the Sixth
Amendment to the United States Constitution; and (2) that counsel's deficient
performance prejudiced the defense, which requires a showing that counsel's errors were
so severe as to deprive the defendant of a fair trial. Miller, 298 Kan. at 929. To establish
prejudice, the movant must show a reasonable probability that, but for counsel's deficient
performance, the outcome of the proceeding would have been different, with reasonable
probability meaning a probability sufficient to undermine confidence in the outcome. 298
Kan. at 934.

When applying the Strickland test, a reviewing court must strongly presume that
counsel's conduct fell within the broad range of reasonable professional assistance. State
v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). Judicial scrutiny of counsel's
performance must be highly deferential, and a fair assessment of attorney performance
requires that every effort be made 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 that time. Thompson, 293 Kan. at 715 (citing
Bledsoe v. State, 283 Kan. 81, 90-91, 150 P.3d 868 [2007]).

When considering a claim of ineffective assistance of counsel, a reviewing court
must consider it is generally within the province of a lawyer to decide what witnesses to
call, whether and how to conduct cross-examination, and other strategic and tactical
decisions. Sola-Morales v. State, 300 Kan. 875, 887-88, 335 P.3d 1162 (2014). Strategic
decisions made by counsel after thorough investigation of the law and the facts are
virtually unchallengeable. Flynn v. State, 281 Kan. 1154, 1157, 136 P.3d 909 (2006).

The defendant advances at least four theories on how this failure to communicate
resulted in ineffective assistance of counsel:
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 Betts decided to abandon the alibi defense solely on Diggins' allegations
without giving the defendant an opportunity to refute Diggins' statements.
If the defendant had been given the chance to refute Diggins' story, the
defense team may have decided to go forward with the alibi defense, which
may have resulted in a significantly different outcome at trial.
 The defendant's decision to not testify was based on incomplete information
because he did not know about Diggins' allegations.
 Betts violated the Rules of Professional Conduct by not communicating
with the defendant.
 If Betts had communicated with the defendant about Diggins' allegations,
he could have elicited impeachment material about Diggins from the
defendant that could have been used on cross-examination of Diggins.

We start our analysis with a brief review of the district judge's ruling. The court
noted there were many reasons—beyond the information from Diggins—that factored
into the decision not to use the alibi defense. In addressing the defendant's argument that
his counsel was ineffective for not informing him about Diggins' allegations, the district
court found that violations of the Rules of Professional Conduct do not alone constitute
ineffective assistance of counsel and can only be used as a factor to consider when
determining whether counsel provided adequate representation. The court was troubled
by the defendant's argument that he should have been given the chance to refute Diggins'
allegations. The court noted Diggins did testify at trial; however, her story about picking
up the defendant after the homicide was never elicited by the prosecution on direct
examination. The court noted that there was no trial testimony from Diggins that the
defendant needed to refute.

In fact, Diggins was called by the State to testify at the defendant's trial. She
testified briefly about her relationship with the defendant and that she had given him a
phone that was registered in her name. She answered some questions about three phone
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calls that were made on the night of the homicide from the phone she had given the
defendant. She was never asked any questions regarding her allegation that she picked the
defendant up on the night of the homicide. The defendant's trial counsel did not cross-
examine her. At the K.S.A. 60-1507 hearing, the State asked Betts why he did not cross-
examine Diggins about her allegation that she picked up the defendant on the night of the
homicide. Betts responded that it would not have been in the defendant's best interest to
bring to light a story that was inconsistent with the defendant's potential alibi defense.

Although the district court pointed out that Diggins did not testify at trial about her
interaction with the defendant after the murder, the court's rationale does not precisely
resolve the defendant's argument. The defendant is not concerned with Diggins' trial
testimony, but with the fact he did not have the opportunity to refute Diggins' allegations
to his own attorneys when deciding whether to present an alibi defense.

The defense team spoke with Diggins while investigating the alibi defense and she
told them she picked up the defendant after the homicide—a story entirely inconsistent
with the defendant's alibi defense. The defendant asserts Betts should have told him
Diggins' allegations were one of the reasons they were choosing to abandon the alibi
defense. He claims that had he known about Diggins' allegations, he could have provided
his attorneys with information that would attack Diggins' credibility or refute her
allegations. He believes that had he been given this opportunity, his defense team may
have decided to go forward with the alibi defense and the outcome of his case would have
been different.

Basically, the defendant contends Betts violated the Rules of Professional Conduct
which require an attorney to communicate with their client. See KRPC 1.4 (2014 Kan. Ct.
R. Annot. 495). The rule speaks in terms of reasonableness:

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"(a) A lawyer shall keep a client reasonably informed about the status of a matter and
promptly comply with reasonable requests for information.

"(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation."

The district court correctly pointed out that "[U]nprofessional conduct by defense
counsel which violates a disciplinary rule contained in the Code of Professional
Responsibility does not constitute ineffective and inadequate counsel as a matter of law."
See State v. Wallace, 258 Kan. 639, 646, 908 P.2d 1267 (1995). A violation of a Rule of
Professional Conduct is "simply one factor to be considered" when deciding whether a
defendant received effective assistance of counsel. 258 Kan. at 646. Even if Betts
violated the Rules of Professional Conduct by failing to communicate with the defendant
regarding Diggins' information, this alone does not constitute ineffective assistance of
counsel.

We evaluate Betts' performance from his perspective at the time of the trial,
without the benefit of hindsight. Based on Betts' testimony, he made a strategic decision
with the information he had available at the time. Betts testified he made the decision to
not share Diggins' information with the defendant because he was in the middle of trial
and trying to do the best he could with the evidence that would support the defendant and
that the situation at the courthouse was extremely volatile.

Betts gave good reasons for not telling the defendant about Diggins' information,
and the defendant provides no concrete evidence that would prove the withholding of that
information was unreasonable, especially since the decision to abandon the alibi defense
was based on other factors besides Diggins' allegations. There is evidence that Betts is
overall a competent attorney. The defendant conceded that Betts took the alibi defense
seriously enough to investigate and prepare it for trial. The defense team did all of the
foundation work required in presenting an alibi defense. They decided it would not
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succeed—a strategic decision. Other evidence in the case shows Betts did a thorough job
of attempting to impeach eyewitness testimony. Betts' failure to discuss Diggins'
information with the defendant did not fall below an objective standard of reasonableness
and his performance did not constitute ineffective assistance of counsel.

The defendant's alternative arguments for why the lack of communication
constituted ineffective assistance of counsel are unconvincing. The defendant claims his
decision to not testify was uninformed because he did not know about Diggins'
allegations. The defendant, however, does not show how this information would have
altered his decision to testify. On direct examination by the State, Diggins did not testify
about picking up the defendant on the night of the homicide, and Betts was not intending
to elicit this injurious testimony from her through cross-examination or by examining her
directly. Her story about picking up the defendant and driving him by Terry's Bar and
Grill was never heard by the jury and, therefore, the defendant would have had nothing to
refute. He provides no explanation for why his decision whether to testify would have
changed if he had known about Diggins' allegations.

The defendant also argues to this court that if Betts had told him about Diggins'
allegations, the defendant could have provided Betts with impeachment material for him
to use during Diggins' cross-examination. Since Diggins did not testify about picking up
the defendant on the night of the homicide, there was no reason for Betts to impeach
Diggins' credibility.

The defendant contends it was unreasonable for Betts to withhold Diggins'
allegations from him because he claims had he known about Diggins' story, he could
have refuted her story or provided information that would have changed Betts' mind
about abandoning the alibi defense. The problem with this argument, however, is the
defendant provides no evidence that he actually had information that would refute
Diggins' allegations to the extent that Betts would change course with the alibi defense.
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It is very clear that Betts and the other defense attorneys were most concerned that
their sole alibi witness, Dante, had given inconsistent interviews and would unlikely
withstand cross-examination from the State. Diggins' story only reaffirmed their decision
to abandon the alibi witness. The defendant's contention that he could have refuted
Diggins' story is entirely speculative and does not conclusively prove Betts would have
taken a different action regarding the alibi defense. Even if the defendant had provided
Betts concrete information that Diggins was lying, Betts still had the enormous hurdle of
Dante's inconsistencies to overcome. The defendant does not explain how refuting
Diggins' story would have changed the potential alibi defense or the outcome of the trial.
There is no reasonable probability that the outcome of the defendant's trial would have
been different but for Betts' failure to disclose Diggins' allegations.

The defendant also claims that Jesse Forbes' testimony would have put a different
light on the alibi defense which would have potentially resulted in a significantly
different outcome of the trial. Dante told him he had information from an individual
named "J." Dante had no other information about "J" but promised Betts he would try to
locate him and have him contact Betts. Betts was never able to locate "J" and, therefore,
he was not part of the alibi defense. "J"—who is actually Jesse Forbes—testified at the
K.S.A. 60-1507 hearing that he did not see the defendant at the scene of the shooting. The
defendant's argument that Forbes' testimony would have changed the outcome of the trial
is perplexing because the defendant never alleged Betts was ineffective for not securing
Forbes as a witness.

The defendant seems to accuse Betts of not making an effort to find Forbes;
however, this is not the basis for his ineffective assistance claim. Betts testified at the
K.S.A. 60-1507 hearing that Dante provided no other information about Forbes other
than he was an African-American named "J." Betts had little information to investigate
"J" and, therefore, relied upon Dante to help him locate Forbes. Dante did not help Betts
locate Forbes before the trial and Betts did not include Forbes as an alibi witness on his
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notice of alibi. Betts was reasonable in his investigation of the alibi defense and the
defendant has not shown he was prejudiced by Betts not securing Forbes as an alibi
witness.

We conclude that Betts' performance did not fall below an objective standard of
reasonableness and thus, the defendant's claims do not meet the first step of the
Strickland test. He is not entitled to K.S.A. 60-1507 relief.

Affirmed.