Mays v. State

1

NOT DESIGNATED FOR PUBLICATION

Nos. 113,456
113,457

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

SHAWNDELL MAYS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed April 26,
2019. Affirmed in part, reversed in part, and remanded with directions.

Christopher Mann, of Mann Law Firm, P.A., of Lenexa, for appellant, and Shawndell Mays,
appellant pro se.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MALONE and POWELL, JJ.

PER CURIAM: This consolidated appeal has taken a very unorthodox procedural
path to reach this panel. In 2001, a jury convicted Shawndell Mays of two counts of first-
degree murder, two counts of attempted first-degree murder, two counts of criminal
possession of a firearm by a juvenile, and one count of conspiracy to commit first-degree
murder. Mays' convictions were affirmed on appeal by the Kansas Supreme Court in
State v. Mays, 277 Kan. 359, 385, 85 P.3d 1208 (2004). In 2006, Mays moved for relief
under K.S.A. 60-1507 based on a variety of grounds, including ineffective assistance of
2

counsel. Unfortunately, the motion was not ruled upon for several years and Mays filed a
petition for writ of mandamus in 2010. After counsel was appointed to represent Mays,
his attorney filed another K.S.A. 60-1507 motion on his behalf in 2012 and supplemented
it in 2013. The district court ultimately dismissed both motions following a
nonevidentiary hearing. Thereafter, Mays appealed.

On October 27, 2016, this court remanded the K.S.A. 60-1507 motion filed in
2006 to the district court for further proceedings but retained jurisdiction over the
appeals. On remand, the district court held a hearing on December 22, 2016, and the
district court filed a Journal Entry on March 7, 2017, in which it again denied the 2006
motion. Thereafter, the matter was returned to this court and the parties briefed the issues.
In addition, Mays filed a supplemental pro se brief in which he asserted two additional
issues. Although we do not find the majority of Mays' arguments to be persuasive, we do
find that the district court should have held an evidentiary hearing on some of the issues
relating to the effectiveness of his trial counsel. Thus, we affirm in part, reverse in part,
and remand for an evidentiary hearing.

FACTS

In affirming Mays' convictions, the Kansas Supreme Court summarized the
underlying facts as follows:

"This case involved two separate drive-by shootings in January 2000. The first
occurred on the night of January 24, 2000. According to the testimony of Marcus Quinn,
he and Joseph Morton were sitting and talking in a car parked in an empty lot across the
street from Quinn's home near 20th Street and Longwood in Kansas City, Kansas. While
sitting there, Quinn saw a red truck. About 30 minutes later, Quinn saw the same red
truck followed by a car. This time the truck stopped and its occupants shot multiple times
at the Chevrolet Caprice in which Morton and Quinn were sitting. Quinn testified that the
right side of his head was grazed, but he was not seriously injured. Morton ran away from
the scene, but later died at a hospital. The second shooting occurred on the afternoon of
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January 26, 2000. Christopher Union and Lee Brooks were driving a white pickup truck
near 30th and Spring when gunshots were fired at the truck. Both Brooks and Union were
injured; Union died from his injuries.
"The police investigation of the two shooting incidents eventually led to the
custodial interrogations of Michael White, Shawndell Mays, Keith Mays, Peter Davis,
and Carvell England on January 27, 2000. (Shawndell Mays will be referred to
throughout this opinion as Mays; Keith Mays will be referred to by first and last name.)
All of them talked to the investigators, describing the events of the two shootings to
various degrees, with Mays and White admitting to firing shots during both incidents and
all of them admitting to being a witness to one or both occurrences. Mays was 16 years
old at the time of the shootings; he turned age 17 on January 29, 3 days after the second
shooting.
"In the same information, the State charged White, Mays, Davis, Keith Mays,
and England with various charges relating to the shootings on January 24, January 26, or
both. Three of the codefendants, including Mays, were juveniles. The court authorized
the State to prosecute the three as adults pursuant to K.S.A. 38-1536(a)(2). The five
codefendants' joint trial lasted nearly 3 weeks, during which 39 witnesses testified. The
redacted statements of each of the five codefendants were played for the jury over
defense counsels' objections. Generally, all of the codefendants denied the allegations
and, through cross-examination of the State's witnesses, sought to create reasonable
doubt. Each codefendant also generally relied upon a self-defense theory.
"The jury convicted Mays of two counts of first-degree murder, two counts of
attempted first-degree murder, two counts of criminal possession of a firearm by a
juvenile, and one count of conspiracy to commit first-degree murder. The jury also
convicted Davis and White of various charges but acquitted Keith Mays and England of
all charges." Mays, 277 Kan. at 362-63.

Mays filed a pro se K.S.A. 60-1507 motion on June 29, 2006. In his motion, Mays
asserted various trial errors and numerous claims of ineffective assistance of trial and
appellate counsel. Evidently, the motion languished in the system for several years with
little or no action being taken. As such, Mays filed a petition for a writ of mandamus on
July 16, 2010, in which he brought the matter to the district court's attention.
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On August 31, 2011, the district court appointed counsel to represent Mays on his
K.S.A. 60-1507 motion. After the first attorney appointed to represent him failed to
appear at a hearing, the district court appointed another attorney to represent Mays. The
new attorney filed a second K.S.A. 60-1507 motion on behalf of Mays on November 5,
2012. Moreover, counsel supplemented the K.S.A. 60-1507 motion on September 30,
2013.

After a holding a nonevidentiary hearing, the district court granted the State's
motion to dismiss on December 5, 2013. Mays filed two notices of appeal and this court
consolidated the appeals on May 27, 2015. Subsequently, Mays filed a motion to remand
the K.S.A. 60-1507 motion filed in 2006 to the district court for a hearing because the
district court had failed to adequately address the issues raised in that motion. This court
agreed and entered an order on October 27, 2016, remanding this matter to the district
court "for the limited purpose of allowing for proceedings on the K.S.A. 60-1507 claim
that was filed [in 2006]" However, this court retained jurisdiction over the consolidated
appeal.

On December 22, 2016, the district court held a hearing to consider the K.S.A. 60-
1507 motion filed by Mays in 2006. Although the district court and the parties suggest
that this was an "evidentiary hearing," a review of the transcript reveals that no witnesses
were called and no evidence was presented. Instead, the district court heard oral
arguments from counsel on the issues presented. Following the hearing, the district court
took the matter under advisement. On March 6, 2017, the district court entered an order
denying the claims asserted by Mays in the K.S.A. 60-1507 motion filed in 2006.

On April 20, 2017, this court lifted the stay issued in this consolidated appeal and
issued a briefing schedule. Because Mays failed to file a brief in a timely manner, we
dismissed the consolidated appeal on November 2, 2017. However, on March 26, 2018,
Mays filed a motion to reinstate the consolidated appeal based on the factors in State v.
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Ortiz, 230 Kan. 733, Syl. ¶¶ 1-3, 640 P.2d 1255 (1982). Our court agreed and reinstated
the appeal. Now that the parties have fully briefed the issues presented, this matter is now
ready for decision.

ANALYSIS

Standard of Review

At the outset, this case presents a very unusual question—did the district court
hold an evidentiary hearing on either or both motions? The answer to this question is
significant because our standard of review depends on the procedure followed by the
district court. Although the district court and the parties all suggest that an evidentiary
hearing was held on December 22, 2016, we have reviewed the hearing transcript and
find nothing to indicate that evidence was presented. Likewise, we have scrutinized the
record on appeal and can find nothing to indicate that Mays has ever been afforded the
opportunity to present evidence over the many years that the K.S.A. 60-1507 motions
were pending.

A district court has three options when handling a K.S.A. 60-1507 motion:

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

Because we can find nothing in the record to establish that the district court held a
"full hearing" or that Mays ever turned down the opportunity to present evidence, we
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conduct a de novo review to determine whether the motion, files, and records of the case
conclusively establish that Mays is not entitled to relief. See Sola-Morales, 300 Kan. at
881.

The right to counsel in criminal cases is provided by the Sixth Amendment to the
United States Constitution:

"'The Sixth Amendment to the United States Constitution guarantees that "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence." This right to counsel is applicable to state proceedings under
the Fourteenth Amendment. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014).
This guarantee includes the right to more than the mere presence of counsel[. It] also
[includes] 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, 104 S. Ct. 3562, 82 L.
Ed. 2d 864 (1984); see also Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468
(1985) (adopting Strickland). We have acknowledged that "[t]he purpose of the effective
assistance guarantee 'is simply to ensure that criminal defendants receive a fair trial.'"
State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012) (quoting Strickland, 466 U.S. at
689.'" Fuller v State, 303 Kan. 478, 486, 363 P.3d 373 (2015).

Similarly, the Kansas Constitution Bill of Rights § 10 and K.S.A. 22-4503
enshrine the right to effective counsel. See State v. Lawson, 296 Kan. 1084, 1093-94, 297
P.3d 1164 (2013); Kan. Const. Bill of Rights § 10.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that the performance of trial counsel was deficient under the totality of
the circumstances, and (2) that the movant suffered prejudice—in other words, that there
is a reasonable probability the jury would have reached a different result absent the
deficient performance. Sola-Morales, 300 Kan. at 882 (relying on Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]). The burden to
7

establish ineffective assistance of counsel is on the movant. Fuller, 303 Kan. at 486; State
v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994).

The benchmark for determining an ineffective assistance of counsel claim is
whether the attorney's conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a fair and just result. Bledsoe
v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). Judicial scrutiny of counsel's performance
in a claim of ineffective assistance of counsel is highly deferential and requires
consideration of the totality of the evidence before the judge or jury. See State v. Kelly,
298 Kan. 965, 970, 318 P.3d 987 (2014). "[A] fair assessment of attorney performance
requires that every effort must 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 the time." Crowther v. State, 45 Kan. App. 2d 559,
564, 249 P.3d 1214 (2011).

To establish prejudice, the defendant must demonstrate a reasonable probability
that, but for counsel's deficient performance, the outcome of the proceeding would have
been different. A reasonable probability is one that is sufficient to undermine confidence
in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015). Where a
movant cannot demonstrate the prejudice prong of Strickland, the court need not consider
whether error actually occurred. See Edgar v. State, 294 Kan. 828, 830, 283 P.3d 152
(2012). Prejudice is demonstrated by a showing that there was a reasonable probability
that, but for counsel's error, the outcome of the hearing would have been different. 294
Kan. at 829.

If counsel has made a strategic decision after making a thorough investigation of
the law and the facts relevant to the realistically available options, then counsel's decision
is virtually unchallengeable. Strategic decisions made after a less than comprehensive
investigation are reasonable exactly to the extent a reasonable professional judgment
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supports the limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292
P.3d 318 (2013). Here, it is impossible to determine trial counsel's strategy because trial
counsel has not testified nor has any other evidence been presented.

Failure to Challenge the Constitutionality of K.S.A. 21-3401

Mays contends that his convictions should be reversed because his trial attorney
did not challenge the constitutionality of K.S.A. 21-3401. Specifically, he argues that the
first-degree murder statute is unconstitutional for failing to provide a definition of
premeditation. Mays asserts that because no definition is provided, the statute is so vague
that it fails to give ordinary people fair notice of the conduct it punishes and invites
arbitrary enforcement in violation of the Fifth Amendment to the Constitution of the
United States. We disagree.

The question of whether a statute is constitutional presents a question of law
subject to unlimited review. State v. Bollinger, 302 Kan. 309, 318, 352 P.3d 1003 (2015),
cert. denied 136 S. Ct. 858 (2016). In reviewing a statute, the appellate courts presume
statutes are constitutional and must resolve all doubts in favor of a statute's validity.
Courts must interpret a statute in a way that makes it constitutional if there is any
reasonable construction that would maintain the Legislature's apparent intent. State v.
Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016), cert. denied 137 S. Ct. 226
(2016).

To determine whether a criminal statute is unconstitutionally vague, the appellate
courts employ a two-part test. First, the court assesses whether the statute gives adequate
warning of the proscribed conduct. A statute is unconstitutionally vague if it fails to
"'provide a person of ordinary intelligence fair notice of what is prohibited.' [Citations
omitted.]" Bollinger, 302 Kan. at 318. In the second step, the court determines whether
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the statute adequately guards against arbitrary and unreasonable enforcement. 302 Kan. at
318.

"It is difficult for a challenger to succeed in persuading a court that a statute is
facially unconstitutional. Such challenges are disfavored, because they may rest on
speculation, may be contrary to the fundamental principle of judicial restraint, and may
threaten to undermine the democratic process. It is easier for a challenger to succeed in
persuading a court that a statute is unconstitutional as applied to that particular
challenger. [Citations omitted.]" 302 Kan. at 318-19.

A void for vagueness challenge is based on the due process requirement that a
statute's language must convey a sufficient warning of the conduct proscribed when
measured by common understanding and practice. State v. Adams, 254 Kan. 436, 438,
866 P.2d 1017 (1994). A statute must also adequately guard against arbitrary and
discriminatory enforcement. State v. Bryan, 259 Kan. 143, 146, 910 P.2d 212 (1996). A
statute is unconstitutionally vague if it "'forbids the doing of an act in terms so vague that
persons of common intelligence must necessarily guess at its meaning and differ as to its
application . . . .'" Adams, 254 Kan. at 439 (quoting State v. Dunn, 233 Kan. 411, 418,
662 P.2d 1286 [1983]).

Vague laws offend several important values by impermissibly delegating basic
policy matters to policemen, judges, and juries for resolution on a subjective basis, with
the dangers of arbitrary and discriminatory application. State v. Taylor, No. 109,147,
2014 WL 113451, at *4 (Kan. App. 2014) (unpublished opinion). See City of Wichita v.
Hackett, 275 Kan. 848, 854, 69 P.3d 621 (2003). Significantly, a statute is not
unconstitutionally vague if its words are commonly used, judicially defined, or have a
settled meaning in law. Hackett, 275 Kan. at 853-54.

Here, Mays was convicted of premeditated murder under K.S.A. 21-3401. At trial,
the jury was instructed that "[p]remediation means to have thought the matter over
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beforehand," as set forth in PIK Crim. 3d 56.04(b). As the State points out in its brief, the
Kansas Supreme Court has rejected challenges to K.S.A. 21-3401 that are similar to the
one asserted by Mays. See State v. Groschang, 272 Kan. 652, 668, 36 P.3d 231 (2001).
Furthermore, our Supreme Court "has approved the PIK definition of premeditation in a
series of cases." State v. Lawrence, 281 Kan. 1081, 1090-91, 135 P.3d 1211 (2006)
(citing State v. Martis, 277 Kan. 267, 302, 83 P.3d 1216 [2004]); State v. Hebert, 277
Kan. 61, 89, 82 P.3d 470 (2004); State v. Pabst, 273 Kan. 658, 661-63, 44 P.3d 1230
(2002); State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000).

Mays fails to cite to any caselaw in support of his position that K.S.A. 21-3401 is
unconstitutionally vague. In addition, he does not assert that the cases handed down by
our Supreme Court on this issue were wrongly decided. Accordingly, we conclude that
Mays has failed to establish his trial counsel was ineffective for failing to challenge
K.S.A. 21-3401 for vagueness or that the result of his trial would have been different had
she done so.

Failure to Challenge Legality of Confession

Next, Mays contends that his trial counsel was ineffective because she failed to
challenge the legality of his confession under 18 U.S.C. § 5033, which addresses the
procedure to be followed when a juvenile is taken into federal custody. Mays argues that
his attorney should have challenged his confession because he was apprehended by the
Fugitive Apprehension Task Force and, as a result, federal jurisdiction was invoked.
Mays claims there is a reasonable probability that had his attorney challenged his
confession under 18 U.S.C. § 5033, the result of the motion to suppress would have been
different. Again, we disagree.

We note from a review of the record that trial counsel did attempt to suppress
Mays' confession. Ultimately, the district court denied Mays' motion to suppress and
11

admitted his statement into evidence at trial. On appeal, our Supreme Court evaluated the
voluntariness of Mays' confession and concluded that "it was not error to determine that
[Mays'] waiver of his Miranda rights was knowing, voluntary, and intelligent." Mays,
277 Kan. at 377. However, it does not appear that the issue of suppression under 18
U.S.C. § 5033 was presented on direct appeal.

Title 18 U.S.C. § 5033 provides:

"Whenever a juvenile is taken into custody for an alleged act of juvenile
delinquency, the arresting officer shall immediately advise such juvenile of his legal
rights, in language comprehensive to a juvenile, and shall immediately notify the
Attorney General and the juvenile's parents, guardian, or custodian of such custody. The
arresting officer shall also notify the parents, guardian, or custodian of the rights of the
juvenile and of the nature of the alleged offense.

"The juvenile shall be taken before a magistrate forthwith. In no event shall the
juvenile be detained for longer than a reasonable period of time before being brought
before a magistrate judge."

K.S.A. 22-2102 mandates that the Kansas Code for Criminal Procedure "shall
govern proceedings in all criminal cases in the courts of the state of Kansas." The Kansas
Code for Criminal Procedure does not adopt—in whole or in part—federal criminal
procedure. Moreover, we find nothing in the plain language of 18 U.S.C. § 5033 or in
cases interpreting the federal law to mandate its application in state courts. Likewise,
Mays cites no authority supporting his position that 18 U.S.C. § 5033 applies in state
court proceedings.

Although we are aware of no Kansas case interpreting the application of 18 U.S.C.
§ 5033, federal courts have held that "a federal arrest or a federal charge is a necessary
prerequisite to the statute's application. [Citation omitted.]" United States v. Doe, 155 F.
3d 1070, 1076 (9th Cir. 1998). In Doe, which involved a defendant in tribal custody, the
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United States Court of Appeals for the Ninth Circuit found the United States Supreme
Court's opinion in United States v. Alvarez-Sanchez, 511 U.S. 350, 114 S. Ct. 1599, 128
L. Ed. 2d 319 (1994), to be instructive. The United States Supreme Court held in Alvarez-
Sanchez that the protections of 18 U.S.C. § 3501(c) (delay in bringing person before a
magistrate) did not apply to a person questioned by a federal officer while being held on
state charges. 511 U.S. at 358-59.

In Doe, the Ninth Circuit found the reasoning in Alvarez-Sanchez to be persuasive
because both 18 U.S.C. § 5033 and 18 U.S.C. § 3501(c) address "someone being taken
into 'custody' by an 'arresting officer.'" Doe, 155 F.3d at 1077. The Ninth Circuit also
found that 18 U.S.C. § 5033 did not apply when the defendant was merely being
questioned by the federal officer. It stated that the defendant in Doe "was being held on
tribal charges of aggravated assault only. There is no doubt that he was in custody, but
that custody was tribal and therefore did not trigger the protections of § 5033." 155 F.3d
at 1077.

The Ninth Circuit did note in Doe that under special circumstances, a person may
be deemed to be in federal custody "where there is a 'working arrangement' between the
federal and tribal officers to deprive a suspect of federal procedural rights." 155 F.3d at
1078 (citing United States v. Leeds, 505 F.2d 161, 163-64 [10th Cir. 1974]). In this case,
even though there were federal agents involved in Mays' arrest, there is no allegation of
collaboration between federal and state authorities to deprive him of his rights under 18
U.S.C. § 5033. Under these circumstances, we conclude that Mays has failed to establish
his trial counsel was ineffective for failing to challenge the admissibility of his confession
under 18 U.S.C. § 5033.




13

Failure to Object to Exclusion of Ex-Felons from Venire Panel

Mays also contends that his trial counsel was ineffective for failing to object to the
exclusion of ex-felons from the jury panel in violation of the Sixth Amendment right to
be tried by an impartial jury that reflects a fair cross section of the community.
Specifically, Mays complains that his trial counsel should have objected to the exclusion
of three potential jurors who evidently had felony records. Mays claims the failure to
object to the exclusion of jurors with a prior felony "ultimately worked to [his]
disadvantage" by depriving the jury panel of an ex-felon's views on sending a juvenile to
prison. We find this argument to be unpersuasive.

K.S.A. 43-158(c) provides that those persons who have been convicted of a felony
in the last 10 years "shall be excused from jury service" by the district court. Mays
alleges this statute is unconstitutional because it deprives criminal defendants the right to
be tried by an impartial jury that reflects a fair cross section of the community. See
Berghuis v. Smith, 559 U.S. 314, 319, 130 S. Ct. 1382, 176 L. Ed. 2d 249 (2010). To
establish a violation of the Sixth Amendment's fair cross section requirement, a defendant
must show:

"(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2)
that the representation of this group in venires from which juries are selected is not fair
and reasonable in relation to the number of such persons in the community; and (3) that
this underrepresentation is due to systematic exclusion of the group in the jury-selection
process." Durren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).

A distinctive group is one that is recognizable, distinct, and singled out for
different treatment under the law. Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct.
1272, 51 L. Ed. 2d 498 (1977). Distinctive groups are generally comprised of immutable
characteristics such as race or color. See Hernandez v. Texas, 347 U.S. 475, 478, 74 S.
14

Ct. 667, 98 L. Ed. 866 (1954). However, other characteristics may create distinctive
groups:

"[C]ommunity prejudices are not static, and from time to time other differences from the
community norm may define other groups which need the same protection. Whether such
a group exists within a community is a question of fact. When the existence of a distinct
class is demonstrated, and it is further shown that the laws, as written or applied, single
out that class for different treatment not based on some reasonable classification, the
guarantees of the Constitution have been violated." 347 U.S. at 478.

Without providing any authority to support his position, Mays claims that
convicted felons are a distinctive group in Wyandotte County and should be afforded
protection from being excluded from the venire panel. He claims that excluding
convicted felons from jury panels is not fair or reasonable. Mays asserts that the
underrepresentation of prior felons in Wyandotte County is due to systemic exclusion.

In State v. Ji, 251 Kan. 3, 8, 832 P.2d 1176 (1992), our Supreme Court rejected a
defendant's challenge to the constitutionality of K.S.A. 43-158(a) on the basis that it
excluded those persons unable to read, write, and understand English with a degree of
proficiency sufficient to fill out the jury questionnaire. In State v. Baker, 249 Kan. 431,
436-37, 819 P.2d 1173 (1991), our Supreme Court analyzed the Kansas statutes relating
to jury panels—including K.S.A. 43-158—and held the statutes were "not violative of
defendant's constitutional and statutory right to a jury that is a fair cross section of the
community." 249 Kan. 431, Syl. ¶ 1. Similarly, federal courts have upheld statutes
excluding felons from jury panels as constitutional because the exclusion is rationally
related to the legitimate governmental purpose of guaranteeing the probity of jurors. See
United States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979); see also United States v. Best,
214 F. Supp. 2d 897, 904-05 (N.D. Ind. 2002) (the exclusion of convicted felons from
juries is a constitutional limitation on jury qualifications).

15

In United States v. Greene, 995 F.2d 793, 796 (8th Cir. 1993), the United States
Court of Appeals for the Eighth Circuit expressly rejected a claim that the exclusion of
felons is impermissible because it has a disparate impact on potential jurors who are
African-American. In Greene, the Eighth Circuit noted that one of the purposes of the fair
cross section requirement is to preserve "'public confidence in the fairness of the criminal
justice system.'" 995 F.2d at 797 (quoting Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.
Ct. 692, 42 L. Ed. 2d 690 [1975]). The Greene court concluded:

"Since we accept the proposition that the exclusion is rationally related to the legitimate
governmental purpose of assuring the unquestionable integrity of jurors and selecting
jurors who are likely to be unbiased, it is only a small step to accepting the proposition
that the significant governmental interest in having jurors who can be relied upon to
perform their duties conscientiously, and in accordance with the law, is an 'adequate
justification,' for the 'infringement of the defendant's interest in a jury chosen from a fair
community cross section.' We therefore affirm the trial court on its holding that Mr.
Greene proved no violation of the constitutional guarantee of juries chosen from a fair
cross-section of the community." [Citations omitted.] 995 F.2d at 798.

Here, Mays has not shown that ex-felons constitute a distinctive group nor has he
shown that their exclusion from jury service violates the Sixth Amendment. He has not
cited any cases finding that such a provision violates the Sixth Amendment, and there is
substantial caselaw from federal courts that have rejected similar arguments. Therefore,
we conclude that Mays has failed to establish his trial counsel was ineffective for failing
to object to the exclusion of ex-felons from the venire panel.

Failure to Object to State's Alleged Misstatement of Law

In addition, Mays contends that his trial counsel was ineffective for failing to
object to the alleged misstatement of the elements of aiding and abetting during voir dire.
He argues that the prosecutor failed to explain that in order to be convicted of aiding and
abetting first-degree murder, the State must prove that he intentionally aided and abetted
16

a first-degree murder. In particular, Mays claims the prosecutor misstated the law when
he explained that a person who "'does just a little bit to aid'" may be convicted of aiding
and abetting first degree murder. In response, the State denies that the prosecutor
misstated the law on aiding abetting.

During voir dire, the prosecutor informed the potential jurors:

"I don't have the instruction in front of me and I have to step into the Court's shoes
because the Court's going to instruct you and tell you what the law is. But to paraphrase
that instruction, it talks about the amount—sorry, I don't remember the exact language it
uses, but it talks about someone who does just a little bit to aid and someone who does a
lot to aid can be found equally guilty with the person who actually does it."

The prosecutor then posed the following scenario:

"[L]et's say we just put three cases out in front of you, one who actually does the killing
and one who just does a little bit to aid in the killing, one who does a lot to aid in the
killing, could you given that all things are proven too, of course, beyond a reasonable
doubt, could you find all three of them guilty or only some?" (Emphasis added).

We note that the prosecutor attempted to make it clear to the jury that it is the
State's burden to prove all the elements of a crime—including the intent of the defendant.
The State's burden of proof was also set forth in the instructions given to the jury after the
evidence was presented. Furthermore, the district court properly instructed the jury on the
principles of aiding and abetting and the requisite mental culpability. Thus, we find no
error.

Even if the prosecutor's statements constituted error, we find it to be harmless
error under the circumstances presented. See State v. Rivera, 48 Kan. App. 2d 417, 444,
291 P.3d 512 (2012) (a misstatement of law in a preliminary jury instruction can be cured
by the district court submitting the correct instruction to the jury at the end of trial). In
17

light of the instructions given by the district court as well as the time between the alleged
misstatements and the case being submitted to the jury, we find that any error was cured.
As such, we conclude that Mays has failed to establish his trial counsel was ineffective
for failing to object to the prosecutor's statements made during voir dire regarding the
elements of aiding and abetting.

Failure to Assert a Theory of Self-Defense

Mays further contends that his trial counsel was ineffective for failing to raise self-
defense at trial. He argues that his attorney should have mentioned his theory of self-
defense during opening statements. Also, Mays claims that his attorney should have
advised him of the need to testify in support of his theory of self-defense. In addition,
Mays points to the fact that trial counsel failed to present evidence regarding the shooting
death of Mays' 10-year-old cousin, which he claims supports his self-defense theory.

Although the State contends that Mays waived this issue by failing to cite to the
record with specificity, we note that his allegations are primarily based on claims
regarding things that trial counsel failed to do. It is difficult—if not impossible—to point
to specific places in the record under these circumstances. Furthermore, we find that
Mays' claims relating to the theory of self-defense were adequately set out in his original
K.S.A. 60-1507 motion.

In particular, Mays outlined the following concerns in the K.S.A. 60-1507 motion
he filed in 2006:

"(I) TRIAL COUNSEL GAVE A ONE MINUTE OPENING STATEMENT
WHERE SHE FAILED TO EXPRESS WHAT SHE THOUGHT THE EVIDENCE
WOULD PROVE IN FAVOR OF MOVANT, NOR DID SHE RELATE WHAT THE
DEFENSE WOULD BE SO THE JURY COULD BE EVALUATING THE EVIDENCE
PRESENTED IN A LIGHT OF MOVANT'S ASSERTED DEFENSE.
18

. . . .
"(K) TRIAL COUNSEL FAILED TO INTRODUCE EVIDENCE OF THE
SHOOTING DEATH OF MOVANT'S COUSIN, [C.C.], WHICH WAS THE ENTIRE
BASIS OF THE ASSERTED DEFENSE THAT MOVANT'S ACTIONS WERE
PREDICATED UPON A BELIEF THAT HIS LIFE WAS IN IMMEDIATE DANGER,
AND THE BASIS FOR THAT BELIEF WAS THE SHOOTING DEATH OF HIS
COUSIN AND MATTERS RELATED THERETO. MOVANT HAD AN ABSOLUTE
RIGHT TO PRESENT ANY AND ALL EVIDENCE RELATED TO HIS STATE OF
MIND AND HIS BELIEFE THAT HIS LIFE WAS IN DANGER.
"(L) TRIAL COUNSEL FAILED TO ADVISE MOVANT OF THE NEED FOR
HIM TO TAKE THE STAND IN HIS OWN DEFENSE, AND SHE FAILED TO CALL
HIM TO THE STAND, WHICH WAS REQUIRED TO ESTABLISH HIS DEFENSE
OF SELF DEFENSE. WITHOUT MOVANT TESTIFYING IN HIS OWN DEFENSE
THE JURY WAS LEFT WITH ABOSLUTELY NO EVIDENCE TO RULE IN HIS
FAVOR ON THE ISSUE BECAUSE NOTHING ESTABLISHED THAT HE WAS IN
IMMEDIATE APPREHENSION OF GREAT BODILY HARM."

On appeal, Mays cites to State v. Johnson, No. 111,339, 2015 WL 3632205, at *5
(Kan. App. 2015) (unpublished opinion). In that case, the defendant claimed that he
chose not to testify at trial in support of his theory of self-defense because he felt that his
attorney's failure to discuss the defense during opening statements precluded him from
pursuing the theory. On appeal, a panel of our court held that trial counsel's actions were
not ineffective because the attorney had explained to his client that his testimony was
crucial to support a theory of self-defense. The panel also found that the defendant
knowingly made the decision not to testify. 2015 WL 3632205, at *5.

Here, we do not have the benefit of trial counsel's testimony at an evidentiary
hearing. Perhaps Mays' attorney could adequately explain her trial strategy and the
decisions she made. However, there is simply no way to know based on the record as it
currently exists. The State points to the lack of a record to note that there is nothing to
indicate that Mays ever told his attorney that he wanted to assert self-defense or that she
19

ever advised him about whether he should testify in support of his theory of self-defense.
But this is the type of issue that is best resolved at an evidentiary hearing where the
movant and trial counsel both testify regarding the events.

Finally, the State claims that the record shows that trial counsel acted reasonably
as a matter of trial strategy. Again, without trial counsel's testimony regarding her trial
strategy and the reasons for her decisions, it is impossible to determine. Mays asserts that
there is a reasonable probability that the result of his trial would have been different if his
attorney had pursued his theory of self-defense in her opening statement, presented
evidence of his cousin's death, and properly advised him of the effect of his decision not
to testify on a theory of self-defense. Thus, we conclude that it is appropriate to remand
this issue to the district court for an evidentiary hearing.

Failure to Object to the Admission of Hearsay Evidence

Similarly, Mays contends that his trial counsel was ineffective for failing to object
to the admission of certain hearsay statements at trial. Specifically, he claims his attorney
should have objected to the admission of hearsay during the testimony of Alberta Bailey,
Anthony Dantzler, and Gary Hahn. Further, Mays argues that the admission of the
hearsay evidence substantially increased the likelihood of him being convicted on the
charge of conspiracy to commit first-degree murder.

Again, the State asserts that Mays has waived this issue because he fails to point to
evidence in the trial transcript in support of his assertion. Although he does not directly
cite to the hearsay statements made at trial, Mays points to the following hearsay
evidence mentioned in the Kansas Supreme Court's decision in his direct appeal:

"Alberta Bailey, a former roommate of Michael White's, testified that White told Bailey
and her fiancé to watch the news 'because we smoked that nigger Antwan.' No
contemporaneous objection was made. White's counsel then sought to cross-examine
20

Bailey about the statement because there was no victim named Antwan involved in the
case. When White's counsel asked Bailey to repeat White's statement, Mays' counsel
objected on the grounds of prejudice to Mays and asked that the witness be instructed to
use the pronoun 'I' rather than 'we' in order to cure the Bruton problem. The trial court
overruled Mays' objection, finding there was no confrontation problem. The witness then
repeated White's statement.
"Mays also argues there was insufficient evidence to support his conviction of
conspiracy to commit first-degree murder. The evidence regarding the conspiracy count
consisted of the testimony of Bailey described above, as well as the testimony of two
other people who lived in the same crack house as Bailey. Anthony Dantzler testified that
White and several other young men, including Mays, came in and out of the house with
guns in their hands near the end of January 2000. Dantzler testified that at one point when
the young men came back to the house they were happy and jumping around. Dantzler
heard something mentioned about a white truck. Union and Brooks were driving a white
truck when they were shot.
"Another housemate, Gary Hahn, also testified observing White and his 'buddies'
with guns at the house around the time of the shootings. Hahn heard the group talk about
going to do a hit before they left the house. When they returned, they were jumping up
and down and laughing." Mays, 277 Kan. at 383-84.

On direct appeal, our Supreme Court addressed the hearsay issue as follows:

"Mays contends that all of the evidence mentioned above was hearsay and it was
inadmissible under the coconspirator exception to the hearsay rule. See K.S.A. 2003
Supp. 60-460(i)(2). In fact, only those portions of the testimony where the witnesses
described the young men's statements or conversations were hearsay. The rest of the
testimony involved the witnesses' visual observations of the young men and was not
hearsay. In any event, Mays did not object to any of the evidence on hearsay grounds.
"A defendant's failure to timely object at trial to alleged hearsay statements
precludes the defendant from raising the issue on appeal. State v. Carr, 265 Kan. 608,
620, 963 P.2d 421 (1998). This is true even where the defendant alleges a violation of the
Confrontation Clause of the Sixth Amendment to the United States Constitution. State v.
Bryant, 272 Kan. 1204, 1207-08, 38 P.3d 661 (2002)." Mays, 277 Kan. at 384-85.

21

We conclude that this issue has been properly preserved and that it should also be
addressed at an evidentiary hearing in which Mays has the opportunity to testify, to call
his trial counsel as a witness, and to present other evidence. Again, we cannot determine
from the record as it currently exists whether there was a legitimate strategic reason for
Mays' attorney to permit those portions of the testimony where the witnesses described
the statements or conversations of others without asserting a hearsay objection. Thus, we
remand this issue to the district court for an evidentiary hearing.

Failure to Object to Instruction No. 5

Additionally, Mays contends that his trial counsel was ineffective for failing to
object to a jury instruction that he alleges was erroneous. In particular, he contends that
Instruction No. 5 shifted the burden of proof to him. The State responds that the
instruction was legally proper and that the burden never shifted to Mays.

Instruction No. 5 stated:

"Ordinarily a person intends all of the usual consequences of their voluntary acts.
This inference may be considered by you along with all the other evidence in the case.
You may accept or reject it in determining whether the State has met its burden to prove
the required criminal intent of the defendant. This burden never shifts to the defendant."

In support of his argument, Mays cites State v. Johnson, 233 Kan. 981, 985, 666
P.2d 706 (1983). In Johnson, the Kansas Supreme Court distinguished between jury
instructions that shift the burden of proof and those that properly instruct on a statutory
presumption. Our Supreme Court cited with approval the PIK instruction that was used
by the district court this case. The instruction does not shift the burden of proof to the
defendant nor does it destroy the presumption of innocence. 233 Kan. at 985-86.
Therefore, we conclude that Mays has failed to establish his trial counsel was ineffective
for failing to object to Instruction No. 5.
22

Claim of Ineffective Appellate Counsel

Mays asserts that he was denied the right to effective assistance of appellate
counsel. First, he claims that appellate counsel was ineffective for not arguing that his
confession should have been suppressed under 18 U.S.C. § 5033. Second, he argues that
appellate counsel should have raised the issue on appeal regarding Instruction No. 5. We
find both arguments to be meritless.

The test for ineffective assistance of appellate counsel is the same as that for trial
counsel. Miller v. State, 298 Kan. 921, 930-31, 318 P.3d 155 (2014). Here, we have
found as a matter of law that 18 U.S.C. § 5033 has no application in this case. Likewise,
we have found as a matter of law that Instruction No. 5 was properly given by the district
court. As such, we conclude that Mays has failed to establish that he was denied his right
to effective assistance of appellate counsel.

Withdrawal of Request for Mental Evaluation Prior to Sentencing

In a pro se supplemental brief, Mays contends that his trial counsel was ineffective
for withdrawing her request for an additional competency hearing and proceeding to
sentencing. Prior to sentencing, the district court ordered a competency evaluation at the
defendant's request. However, before the evaluation was completed, Mays' attorney
withdrew the request for an evaluation on the day of sentencing. As a result, the district
court sentenced Mays without having the benefit of an evaluation report.

We note from the record that Mays' competency was an issue prior to trial. It was
also an issue in his direct appeal. As our Supreme Court noted in its decision, there was
evidence that Mays had a low IQ, used drugs, and suffers from Post-Traumatic Stress
Disorder (PTSD) as a result of his cousin's traumatic death. Mays, 277 Kan. at 372-77.
The current issue involves Mays' mental competency at the time of sentencing.
23

At the hearing held on December 22, 2016, the attorney representing Mays on his
K.S.A. 60-1507 motions stated: "At sentencing, the court had authorized having a mental
evaluation by Dr. Logan. I think that [Mays] was supposed to go to a state hospital after
that. They didn't go ahead and do that. They didn't get that second evaluation."

In response, the district court inquired why the evaluation was not completed:

"THE COURT: And why weren't they followed through? Does anyone know?
"Do you know, Mr. Mays?
"MR. MAYS: Yes.
"THE COURT: Tell me.
"MR. MAYS: During the time they stopped my sentencing and they continued it from
the rest of my codefendants. So—
"THE COURT: Were you the only juvenile of the bunch?
"MR. MAYS: Yes, that actually got found guilty.
"THE COURT: Okay. You're the only juvenile that was convicted then in this group?
"MR. MAYS: Yes.
"THE COURT: Okay.
"MR. MAYS: In the transcripts he gave, Jerry Gorman was supposed to take over the
proceedings to make sure, I guess, the funding or however it was supposed to get done.
He offered to take over that.
"THE COURT: The funding for what?
"MR. MAYS: For the evaluation.
"THE COURT: For the evaluation?
"MR. MAYS: Yeah, so at that time—
"THE COURT: That would be unusual.
"MR. MAYS: I mean, it's all right here in the transcripts, though.
"THE COURT: Okay.
"MR. MAYS: So at that time I had to wait on the evaluation or whatever to get done. But
then my attorney came back and told me during sentencing—he's, like, we're about to go
on with the sentencing proceedings because she said that the State didn't pay for Dr.
Logan so they're not going to pay for these other evaluations to get done. So we just
ought to go on and get through the sentence."
24

In the Journal Entry filed on March 7, 2017, the district court concluded that Mays
"fails to show that a second evaluation would have given any different information to the
Court, or that he would have been given any different sentence." On appeal, Mays argues
that the second mental evaluation should have been performed due to his age, his
competency to understand the proceedings, and his PTSD.

It is impossible for us to determine from the record why the request for a second
mental evaluation was withdrawn. We do know that Mays received two consecutive hard
25 life sentences in the underlying criminal case. Had the evaluation been performed, it is
possible that it would have provided mitigating factors that could have resulted in a
lighter sentence. Thus, we find that this issue should also be remanded to the district
court for an evidentiary hearing to determine whether trial counsel was ineffective based
on her withdrawal of the request for a second mental evaluation to be completed prior to
sentencing.

Failure to Object to the Length of Sentence

Finally, Mays contends in his supplemental brief that his trial counsel was
ineffective for failing to object to his sentence on the grounds that it violated the Eighth
Amendment prohibiting cruel and unusual punishment. Mays argues that his sentence is
unconstitutional because he was a juvenile when he committed the crimes. Mays asserts
both a case-specific challenge and a categorical challenge.

A case specific challenge cannot be raised for the first time on appeal because the
district court was not given the opportunity to make factual findings. See State v.
Williams, 298 Kan. 1075, 1084-85, 319 P.3d 528 (2014). A categorical challenge has
been addressed for the first time on appeal in the event that the appellant has invoked an
exception to the general rule that issues cannot be raised for the first time on appeal. 298
Kan. 1075, Syl. ¶¶ 3, 4. However, Mays gives no reason as to why we should consider
25

this issue for the first time on appeal. Moreover, Mays did not raise this issue in either of
his K.S.A. 60-1507 motions. In order to invoke an exception to the general rule that a
party may not raise a constitutional issue for the first time on appeal, Kansas Supreme
Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34) requires that the party affirmatively
invoke and argue an exception. Failure to do so results in an abandonment of the issue.
See State v. Godfrey, 301 Kan. 1041, Syl., 350 P.3d 1068 (2015). Mays fails to invoke or
argue an exception as to why this issue should be raised for the first time on appeal.
Under these circumstances, we conclude that this issue has been waived and abandoned.

CONCLUSION

In summary, we affirm the district court's decision on the issues of counsel's
failure to challenge the constitutionality of K.S.A 21-3401, counsel's failure to challenge
the legality of his confession, counsel's failure to object to the exclusion of ex-felons
from the jury, counsel's failure to object to the State's alleged misstatements of law,
counsel's failure to object to the jury instruction, and Mays' claims of ineffective
assistance of appellate counsel. However, we reverse the district court's dismissal of the
following claims of ineffective assistance of trial counsel without holding an evidentiary
hearing: (1) failure to assert a theory of self-defense; (2) failure to object to the
admission of hearsay evidence; (3) and withdrawal of Mays' request for a mental
evaluation prior to sentencing. Furthermore, we remand these issues to the district court
for an evidentiary hearing.

Affirmed in part, reversed in part, and remanded with directions.