Phillips v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 118,066

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KELVIN PHILLIPS JR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed November 21,
2018. Affirmed.

Dionne A.L. Carter, of Carter Law Offices, of Topeka, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before GARDNER, P.J., GREEN and HILL, JJ.

PER CURIAM: Kelvin Phillips Jr., serving a sentence for premeditated murder and
other crimes, appeals the summary denial of his motion for habeas corpus relief. He
raises several issues of prosecutorial error, ineffective assistance of both trial and
appellate counsel, and several trial errors. Our review of the record leads us to affirm the
district court's summary denial of his motion. Phillips has not shown he is entitled to a
hearing or relief from his convictions.


2

Phillips' case history can be found in the Supreme Court opinion.

Phillips and others were charged with the 2007 murder of James Earl Dyer. The
details of the crime and the rather complicated procedural history of his case are set out in
detail in State v. Phillips, 299 Kan. 479, 480-91, 325 P.3d 1095 (2014). We need not
repeat those details here.

After his convictions were affirmed, Phillips timely filed this K.S.A. 60-1507
motion which the district court summarily denied. In a memorandum decision, the district
court addressed each point raised by Phillips and found his arguments merited no hearing
or relief.

To us, Phillips has reduced his claims to roughly four categories:

 Prosecutorial error;
 ineffective trial counsel;
 ineffective appellate counsel; and
 various trial errors.

We will address his claims in that order.

Phillips has failed to show us any prosecutorial error.

In his motion, Phillips makes seven claims of prosecutorial error:

1. The prosecutor coerced a witness into giving false testimony.
2. The prosecutor vindictively took advantage of the defendants by separating
codefendant Armstrong's trial.
3

3. The prosecutor intentionally introduced unnecessarily prejudicial testimony
about a knife when no knife was involved in the incident.
4. The prosecutor made false statements during voir dire.
5. The prosecutor misstated facts in evidence.
6. The prosecutor improperly commented upon witness credibility,
specifically by calling Phillips a liar.
7. The prosecutor erroneously informed the jury that Armstrong had been
convicted based on his role in the crime.

Phillips claims that the prosecutor coerced a witness into giving false testimony,
made false statements during voir dire, and misstated facts in evidence. These claims do
not appear to have an evidentiary basis and an evidentiary basis is not readily apparent
from our review of the record. In our view, Phillips has failed to carry his burden of
establishing the evidentiary basis for these claims.

While Phillips stated in the motion that he would expand upon the claims when he
had access to the record, he does not do so in his brief. Thus, he has not shown that he is
entitled to relief for these claims. See Holt v. State, 290 Kan. 491, 495-96, 232 P.3d 848
(2010). For the remaining claims, there is a basis within the record or Phillips has
provided an evidentiary basis for his claims for us to consider.

The law on this point is clear. In State v. Sherman, 305 Kan. 88, 378 P.3d 1060
(2016), our Supreme Court established a two-part test that is used to determine if a
defendant's right to a fair trial has been violated. First, we determine whether the
prosecutor erred. A prosecutor errs when he or she acts outside the wide latitude afforded
to prosecutors in pursuing their case. 305 Kan. at 109. If prosecutorial error is
established, the conviction must be reversed unless the error is harmless under the
constitutional harmless error test set out in Chapman v. California, 386 U.S. 18, 87 S. Ct.
824, 17 L. Ed. 2d 705 (1967). Under the constitutional error analysis, this court can
4

uphold the conviction if the State proves beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e. where there is no reasonable possibility that the error contributed to the
verdict. Sherman, 305 Kan. at 109. We will use that framework here.

First, Phillips claims the prosecutor erred by separating Armstrong's second trial
from the other trials. But the record shows that this was not an action of the prosecutor.
Phillips moved to sever his trial from the remaining defendants. The record is clear that
the codefendants were arguing for severance of Armstrong's trial. The prosecutor
acquiesced in the codefendants' requested severance. As a result, this claim fails the first
part of the Sherman analysis because the prosecutor did not act outside the wide
discretion afforded to prosecute the case. This claim is not a basis for Phillips to obtain
relief.

The second challenge of prosecutorial error is Phillips' challenge that the
prosecutor unfairly prejudiced the jury by asking questions about a knife while obtaining
testimony from a coroner. A prosecutor can act outside the latitude afforded to
prosecutors by introducing unnecessarily prejudicial or inflammatory evidence. See State
v. Huynh, No. 93,011, 2005 WL 3527009, at *4-5 (Kan. App. 2005) (unpublished
opinion). When we evaluate conduct of a prosecutor we must do so in the context in
which the conduct occurred. State v. Davis, 306 Kan. 400, 413, 394 P.3d 817 (2017).
Phillips complains that the prosecutor introduced testimony about a knife when no knife
was involved in the incident. Phillips is correct that there was no knife, which makes this
comment somewhat prejudicial. But in context the statement had probative value that
outweighs any prejudice.

The specific testimony that Phillips challenges involved the coroner discussing a
wound that Dyer had received. After showing a picture of the wound to the jury, the
prosecutor asked whether the injury could have been caused by a fist, which the coroner
5

responded in the affirmative. The prosecutor then asked whether the wound could have
been caused by a knife. The coroner stated that it was possible that the wound could have
been caused by a handle of a large knife, but it was unlikely to be caused by the blade.
Finally, the prosecutor asked whether the injury could have been caused by a specific
ashtray, which had been introduced into evidence, and the coroner responded that an
ashtray could have caused the injury.

The purpose of the line of questioning was to inform the jury that the injury was
caused by some kind of blunt force. The question about the knife is relevant in showing
the jury that the injury occurred by blunt force rather than a sharp cut. The question about
the knife helps to highlight the prosecutor's theory that the ashtray caused the injury. In
this context, the prosecutor did not introduce unnecessarily prejudicial or inflammatory
testimony and did not act outside the wide latitude afforded to prosecutors.

The next challenge we consider is Phillips' claim that the prosecutor improperly
commented on Phillips' credibility. A prosecutor errs when he or she states a personal
opinion upon the credibility of a witness. State v. Pribble, 304 Kan. 824, 835, 375 P.3d
966 (2016). These types of statements are a form of unsworn, unchecked testimony and
are impermissible. State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). A prosecutor,
however, may discuss with the jury the evidence the jury should use in assessing witness
credibility. State v. Hart, 297 Kan. 494, 505-06, 301 P.3d 1279 (2013); State v. Scaife,
286 Kan. 614, 624-25, 186 P.3d 755 (2008).

Phillips claims that the prosecutor called him a liar during closing arguments. This
is a misinterpretation. During closing arguments, the prosecutor made a statement that
Phillips had provided two different stories about the events. The prosecutor argued to the
jury which story it should believe. The prosecutor did not call Phillips a liar. Instead, the
prosecutor commented upon the evidence. These statements were not prosecutorial error.
6

Phillips' final claim is that the prosecutor erred in stating that Armstrong had been
convicted for his role in the crimes. Generally, it is impermissible to use a codefendant's
conviction or guilty plea as substantive evidence of guilt. Doing so violates due process
rights. See United States v. Woods, 764 F.3d 1242, 1246 (10th Cir. 2014). The prosecutor
here made no argument that the jury should find Phillips guilty because another jury
found Armstrong guilty. The prosecutor made the comment about Armstrong's conviction
to give context to Armstrong's testimony. The prosecutor argued that the jury should
consider the content of Armstrong's testimony. This argument contained no statement
that the jury should convict Phillips because a different jury convicted Armstrong.

In looking deeper at this, even if there is error, the prejudicial effect of the
comment was mitigated by the jury instruction which required the jury to consider the
guilt of each defendant separately from the others. Additionally, one of Phillips'
codefendants argued that the jury should not find the defendants guilty simply because
Armstrong was found guilty. These factors mitigate any prejudice caused by any
potential error.

In assessing the harmlessness of prosecutorial error, we may also provide a
secondary focus upon the weight of the evidence. See Sherman, 305 Kan. at 111. Simply
put, the evidence supported a conviction. Under the pre-Sherman standard, our Supreme
Court found an instance of prosecutorial error from Phillips' trial was harmless based in
part on the weight of the evidence. Phillips, 299 Kan. at 502-08. Phillips did not
challenge whether he fired the gun—through his testimony, he admitted he fired the gun.
Phillips' defense was based on a lack of intent and premeditation. See 299 Kan. at 488-
94, 497. Our Supreme Court found that the evidence of premeditation was overwhelming
enough to overcome error in misstating the law of premeditation. 299 Kan. at 506-08.
Based on that conclusion, as well as the information we have set out above, there is no
reasonable possibility that the comments on Armstrong's conviction affected the jury's
verdict.
7

Based on the review of Phillips' claims of prosecutorial error, he has not stated a
claim for which he is entitled to relief. Thus, the district court did not err in summarily
denying this portion of his motion.

Phillips has not shown us that his trial counsel was ineffective.

Phillips claims he received ineffective assistance of counsel because of allegedly
deficient performance of his trial counsel. To obtain relief because of ineffective
assistance of counsel, the criminal defendant bears the burden of showing two elements.
First, the counsel's representation must fall below an objective standard of reasonableness
based on all the circumstances. Second, if there is deficient performance, the defendant
must show that there is a reasonable probability that the outcome of the proceeding would
have been more favorable to the defendant. Rowland v. State, 289 Kan. 1076, 1083, 219
P.3d 1212 (2009).

In making the determination of whether counsel's representation was reasonable,
there is a strong presumption that the trial counsel's actions were appropriate. We must be
highly deferential in this scrutiny and must make every effort to eliminate the potential
distortions that can occur because of hindsight. Moncla v. State, 285 Kan. 826, 832, 176
P.3d 954 (2008). "Strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable, and strategic choices made
after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. [Citation
omitted.]" State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004).

First, Phillips claims error because his trial counsel did not request a directed
verdict and did not object to the retrial following his mistrial. This argument fails the
prejudice side of the test. As for the objection to retrial, our Supreme Court fully
addressed Phillips' contention and found that a retrial was appropriate. Phillips, 299 Kan.
8

at 491-97. Turning to the claim about a directed verdict, a directed verdict is essentially a
motion for judgment of acquittal. See State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877
(1984). Judgment of acquittal is appropriate "if [insufficient evidence] to sustain a
conviction of such crime or crimes" was presented at trial. K.S.A. 22-3419(1). Our
Supreme Court found that sufficient evidence was presented to uphold Phillips'
convictions. Phillips, 299 Kan. at 497-502. Because there was sufficient evidence to
convict Phillips, it is unlikely that a motion for a judgment of acquittal would have been
granted had it been requested. Thus, Phillips' argument fails the prejudice prong.

Phillips' next claim is that his counsel did not fully investigate the State's witnesses
who were not law enforcement officers. Phillips argues there were unfiled charges
against these witnesses that would have impeached their testimony. Phillips' claim is
conclusory and he has not shown a basis in the record to grant his motion on this ground.
See Holt, 290 Kan. at 495-96.

Next, Phillips argues his counsel was ineffective for not obtaining a firearms
expert. The decision to obtain an expert witness is generally a strategy decision. See
Ferguson v. State, 276 Kan. 428, 448-50, 78 P.3d 40 (2003). Phillips does not challenge
that there was a lack of investigation; thus, the decision to not hire an expert witness is
virtually unchallengeable. See Gleason, 277 Kan. at 644. Additionally, the State's
firearms expert testimony was rather limited. The firearms expert identified the type of
bullets fired and that the bullets and casings were fired from a single gun. It was
impossible to determine whether the casings and the bullets were fired from the same
gun. Thus, the expert could not determine whether more than a single gun was present.
Based on the content of the expert testimony, it is unclear what additional information a
defense expert would have provided. In other words, it is unclear how the failure to
obtain an expert created any prejudice even if not hiring an expert was deficient
performance by Phillips' trial counsel.

9

Phillips also claims his counsel provided ineffective assistance by failing to
stipulate to the cause of death, which allowed prejudicial photographs to be presented to
the jury. First, this argument presumes that the State would have stipulated to the cause of
death. Second, the decision whether to stipulate is a strategy decision that is not sufficient
grounds to reverse Phillips' convictions. Finally, the State may have been able to produce
the photographs to corroborate testimony even if Phillips conceded the cause of death.
See State v. Smallwood, 264 Kan. 69, 84, 955 P.2d 1209 (1998). The alleged failure to
stipulate to the cause of death is not a ground for ineffective assistance of counsel.

Phillips claims his trial counsel provided ineffective assistance by not objecting to
Armstrong's testimony. First, Phillips argues his attorney should have objected to the
hearsay testimony based on the Confrontation Clause. This claim is based on a claim that
Phillips was unable to cross-examine Armstrong in any meaningful way because he was
uncooperative. This claim lacks merit. Under Crawford v. Washington, 541 U.S. 36, 52-
57, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), out-of-court statements that are
testimonial are inadmissible under the Confrontation Clause unless the witness is
unavailable and the defense has had an opportunity to cross-examine the witness at a
prior time. Armstrong was available for cross-examination. Because Armstrong was
present and subject to cross-examination there is no issue with the Confrontation Clause
to support an objection to the testimony.

The State's redirect examination occurred on a separate day. The State attempted
to only introduce a single question, and Armstrong was uncooperative. The question was
whether Armstrong had been convicted of premediated murder, and the district court took
judicial notice that he had been convicted. Additionally, the district court offered a
limited cross-examination to any defendant based on the court taking judicial notice of
the conviction, and the defendants declined the opportunity. An attorney's representation
is not deficient for not raising an objection that would not be granted. See Brown v. State,
No. 104,248, 2011 WL 3795475, at *2 (Kan. App. 2011) (unpublished opinion), rev.
10

denied 296 Kan. 1129 (2013); Davis v. State, No. 102,566, 2010 WL 2545674, at *3
(Kan. App. 2010) (unpublished opinion), rev. denied 290 Kan. 1092 (2010). Here, an
objection based on the Confrontation Clause and lack of ability to cross-examine would
not have been granted; thus, Phillips has not shown his trial counsel's performance was
deficient.

As for Armstrong's hearsay testimony, Phillips argues his trial counsel was
ineffective for not objecting to a lack of the district court qualifying Armstrong under
K.S.A. 60-460. Phillips claims Kansas law requires the district court find that the
statement be voluntarily given before admission under a hearsay exception. Phillips is
correct when the hearsay evidence being admitted is a confession. See K.S.A. 60-460(f).
Armstrong's hearsay statement was not a confession. Instead, the statement was a prior
inconsistent statement that is admissible under K.S.A. 60-460(a). The qualification that
Phillips asserts was required is not applicable to statements admissible under K.S.A. 60-
460(a). Phillips' trial counsel was not ineffective for failing to raise this objection because
the objection would have been futile.

Next, Phillips argues his trial counsel was ineffective for failing to object to the
admission of testimony given by Armstrong's counsel. Phillips argues that his attorney
should have objected on the grounds of the attorney-client privilege. There is no
foundation for this objection. The attorney-client privilege is a statutory privilege within
the rules of evidence. K.S.A. 60-426. The privilege belongs to the client protected by the
privilege. It may be asserted by the client or the client's counsel on behalf of the client.
State ex rel. Stovall v. Meneley, 271 Kan. 355, 374, 22 P.3d 124 (2001). This means that
only Armstrong or his attorney could have asserted the privilege on behalf of Armstrong.
Phillips' attorney could not have asserted Armstrong's privilege to prevent the evidence
being introduced. Thus, the counsel's performance was not deficient in this way.

11

And the attorney-client privilege may be waived by the client who is protected by
the privilege. K.S.A. 60-437. Armstrong waived the privilege by discussing the
conversations he had with his attorney about the plea deal. Armstrong claimed his
attorney lied to him and coerced him into entering into a plea deal with the State. By
testifying about the communications with his attorney, Armstrong effectively waived the
privilege as it pertained to the testimony the attorney provided. See Meneley, 271 Kan. at
375-76. This objection would have been futile, and Phillips' trial counsel was not
deficient for failing to raise this objection.

Phillips argues that his trial counsel should have obtained a jury instruction that
hearsay statements can be used only for impeachment purposes and not as evidence of
substantive guilt. In order for the district court to give a jury instruction, it must be both
legally and factually appropriate. State v. Fisher, 304 Kan. 242, 256-57, 373 P.3d 781
(2016). The instruction Phillips requested would not be legally appropriate. Hearsay is
generally inadmissible to prove the truth of the matter asserted. K.S.A. 60-460. A hearsay
statement may be used as substantive evidence, meaning for proving the truth of the
matter asserted, when the statement falls within an exception. See K.S.A. 60-460(a-ee).
Because the requested instruction would not have been legally appropriate, Phillips' claim
lacks merit.

In three additional arguments over jury instructions, Phillips claims first that trial
counsel was ineffective for not requesting a jury instruction requiring the jury to find
specific intent to commit murder before convicting him of aiding and abetting. Such an
instruction would not have been factually appropriate for Phillips. The State's theory of
the case was that Phillips was the principal and the other defendants aided and abetted
him.

This theory is borne out by the evidence. In his own testimony, Phillips stated that
he had picked up a gun Dyer had dropped. Dyer jumped on his back causing Phillips to
12

stumble. When he stumbled, the gun fired. And through Armstrong, the jury was told that
Phillips shot Dyer and he was shooting to kill. Based on the testimony Phillips was
necessarily the principal, because under either Phillips' or the State's theory Phillips had
the gun when it was fired. The question for the jury about Phillips was the existence of
premeditation. Because the evidence was clear that Phillips was the alleged principal, his
trial counsel was not deficient for failing to request an instruction on the law of the
specific intent needed to convict for aiding and abetting.

Second, Phillips also contends his trial counsel erred by not requesting a voluntary
manslaughter instruction. Phillips' claim is unclear because he received a voluntary
manslaughter instruction as a lesser included offense of premeditated murder.

For his third instruction argument, Phillips contends his trial counsel was
ineffective for not requesting a self-defense or defense of another jury instruction. The
law on this point is clear. To be entitled to use lethal force to defend oneself or another,
the actor must reasonably believe that the use of lethal force is necessary to prevent
imminent death or great bodily harm to himself or another. K.S.A. 21-3211(b). A
justified use of force instruction requires two elements. First, the defendant must show
that he or she sincerely and honestly believed that the use of force was necessary.
Second, the defendant must show that a reasonable person in the defendant's
circumstances would have believed the use of force was necessary. State v. Friday, 297
Kan. 1023, 1037, 306 P.3d 265 (2013).

It is questionable whether the evidence would support giving this instruction.
Certainly, Phillips' testimony does not support a justified use of force instruction. Phillips
claimed that Dyer had a weapon but dropped the weapon. Phillips picked up the weapon
and, during a struggle, the gun was fired. Phillips' testimony supports a conclusion that
the gun was fired accidentally. Specifically, Phillips stated that he did not intend to shoot
Dyer because "I had no reason to. I don't believe I would have had a reason. That's not
13

my style." Thus, a justified use of force instruction would not have been factually
appropriate because Phillips had no subjective belief that the use of force was necessary
to prevent imminent death or great bodily harm.

That said, even though Phillips' testimony does not support a justified use of force
instruction, there is other testimony not consistent with Phillips' version of the events that
may be a basis for the jury instruction. See State v. Anderson, 287 Kan. 325, 334-36, 197
P.3d 409 (2008). Anderson held that a defendant's testimony may be enough to support a
jury instruction, but a defendant's testimony alone is not dispositive of the issue.

In one of Armstrong's versions of the events, Armstrong first brought the gun into
the house, but Phillips took it from him. During the struggle, Dyer jumped on Phillips'
back. Dyer fell to the floor after Armstrong hit Dyer in the head with an ashtray. While
Dyer was on the floor, Phillips shot Dyer. Under these facts, there is no reasonable belief
that lethal force was necessary to prevent death or imminent bodily harm.

Under the events described by Armstrong in his trial, a justified use of force
instruction may have been factually appropriate. According to the testimony from
Armstrong's trial, Dyer allegedly tried to take property from Armstrong, Williams,
Kettler, and Phillips using two guns. Dyer allegedly lost one of the guns and Phillips
retrieved that gun. After trying to run away unsuccessfully, Phillips shot Dyer.

Given all this conflicting testimony, it is questionable whether a juror would find
the use of force was justified. But that is not the test. A defendant is entitled to a jury
instruction on the pertinent law if a reasonable juror could find in accordance with the
theory. State v. Dupree, 304 Kan. 377, 394-95, 373 P.3d 811 (2016). If a juror believed
this series of events and disregarded all the other evidence, that juror could have found
that Phillips reasonably believed lethal force was necessary to prevent death or great
bodily harm. But there is more to this question.
14

That a justified use of force instruction could have been given does not mean that
Phillips' trial counsel was deficient in his performance. Such an instruction would have
been inconsistent with Phillips' theory of defense because Phillips claimed the shooting
was accidental. While an inconsistent defense can be raised, the decision by Phillips' trial
counsel to raise one defense and not another inconsistent defense was a reasonable
strategic decision. See Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998). Based
on the facts presented at trial, Phillips has not presented a reason this strategic decision
was deficient. Phillips' claims for ineffective assistance of counsel based on the jury
instructions are not meritorious.

Turning to his next claim of deficient performance, we consider Phillips' claim
that trial counsel did not object to the instances of prosecutorial error. Based on our
analysis set out above, we see no meritorious claim of prosecutorial error, thus trial
counsel was not deficient for failing to object.

Finally, Phillips claims his trial counsel was deficient for not calling Tina Stewart
as a witness. According to Phillips, Tina Stewart would have testified that when the
codefendants went to Renee and Tina Stewart's house, they had no gun. Generally, the
decision of what witnesses to present is a matter of strategy that is virtually
unchallengeable. See Flynn v. State, 281 Kan. 1154, 1157, 136 P.3d 909 (2006).

The strategic decision may be challenged if the counsel failed in investigating the
witness. See Shumway v. State, 48 Kan. App. 2d 490, 497-98, 293 P.3d 772 (2013).
Phillips makes no claim that his trial counsel's investigation was lacking. And there are
valid reasons not to call Tina Stewart. Renee Stewart testified that Tina Stewart was in a
relationship with one of the codefendants and had been in a relationship with the victim.
Trial counsel may have been worried about the content of Tina Stewart's testimony and
the potential to harm Phillips' defense. Because Phillips has asserted no reason his trial
15

counsel was deficient in investigating Tina Stewart, we find no basis for this claim of
ineffective assistance of counsel.

Additionally, Phillips fails to show us any prejudice on this point. There is not a
reasonable probability that Tina Stewart not testifying affected the outcome. According to
Phillips' proffer, she would have impeached Renee Stewart's testimony that Williams and
Kettler came to the Stewarts' home with a gun. Frankly, Renee Stewart's testimony
provided scant incriminating evidence against Phillips. Basically, her testimony dealt
with the disposal of the murder weapon by Williams and Kettler after the killing had
occurred. Because of all the evidence that was incriminating, a reasonable juror would
not have been swayed by this testimony to reach a different verdict.

Based on the motion, files, and record, we hold that Phillips is not entitled to relief
for ineffective assistance of trial counsel.

Phillips has failed to establish that his appellate counsel was deficient.

Phillips claims that he received ineffective assistance of appellate counsel. The test
for ineffective assistance of appellate counsel is the same two-part test for ineffective
assistance of trial counsel— the performance must be deficient and prejudicial. Miller v.
State, 298 Kan. 921, 930-31, 318 P.3d 155 (2014). To show prejudice, Phillips must
show that there is a reasonable probability that his appeal would have been successful but
for any deficient performance by appellate counsel. See 298 Kan. at 934-35.

Most of Phillips' claims of ineffective assistance of appellate counsel relate to the
claims we have previously addressed above. He argues his appellate counsel was
deficient because counsel did not raise these issues:

1. The retrial following the hung jury was unconstitutional.
16

2. Insufficient evidence supported his conviction.
3. Inadmissible hearsay was admitted and used without the district court
qualifying the statements under K.S.A. 60-460.
4. Armstrong's attorney was permitted to testify without a waiver of the
attorney-client privilege.
5. Issues on the jury instructions.
6. Prosecutorial error required reversal.
7. Other unidentified issues.

First, we address the issues that either were raised on direct appeal, could not have
been raised on direct appeal, or are not a basis for relief in a motion under K.S.A. 60-
1507. Our Supreme Court addressed Phillips' claim on the constitutionality of being
retried and whether there was sufficient evidence to support his conviction. See Phillips,
299 Kan. at 491-502. There is no deficiency in failing to raise these issues because they
were raised on direct appeal.

Next, about the allegedly inadmissible hearsay and statements from Armstrong's
attorney, the appellate counsel's performance was not deficient. Generally, evidentiary
questions cannot be raised for the first time on appeal. In other words, in order for an
appellate counsel to challenge the introduction of evidence there must be a
contemporaneous objection to the evidence being admitted at trial. See State v. Dukes,
290 Kan. 485, 487-88, 231 P.3d 558 (2010). Since there was no contemporaneous
objection, we cannot rule appellate counsel deficient for failing to raise an issue that
could not be raised. Phillips' final claim that other issues about ineffective assistance of
appellate counsel may exist is a mere conclusion. It cannot serve as the basis for relief.

In looking at Phillips' two remaining issues, we can see that appellate counsel
could have raised issues over prosecutorial error and the jury instructions. But we are
mindful of the rule that an appellate counsel is not deficient for not raising every
17

colorable claim of error on appeal. Baker v. State, 243 Kan. 1, 9-10, 755 P.2d 493 (1988).
Our Supreme Court has instructed:

"In an appeal from a criminal conviction, appellate counsel should carefully consider the
issues, and those that are weak or without merit, as well as those which could result in
nothing more than harmless error, should not be included as issues on appeal. Likewise,
the fact that the defendant requests an issue or issues to be raised does not require
appellate counsel to include them. Conscientious counsel should only raise issues on
appeal which, in the exercise of reasonable professional judgment, have merit." 243 Kan.
at 10.

Turning to the claim of prosecutorial error, based on our analysis above, appellate
counsel's performance was not deficient. The three nonfrivolous claims would not have
resulted in reversible error. In fact, Phillips' appellate counsel raised one claim of
prosecutorial error, which the Supreme Court determined was harmless error. Phillips,
299 Kan. at 502-08. The claim about the coroner's testimony and commenting on witness
credibility are not prosecutorial error. The claim that the prosecutor erred by commenting
on Armstrong's conviction might be error, but any error would be harmless. On direct
appeal, Phillips' counsel whittled down the claims of prosecutorial error to the seemingly
strongest challenge—the prosecution misstating the law. This action was not deficient
performance of appellate counsel.

Next, Phillips' contention of ineffective assistance of appellate counsel based on
the jury instruction issues is not grounds for relief. As for the issue of an aiding and
abetting jury instruction, because the evidence shows that Phillips was the person who
shot Dyer—regardless of which series of events the jury believed—he was not aiding and
abetting the shooting. Without deciding whether the instruction is erroneous, we can
conclude that any error in this instruction as it pertains to Phillips is harmless. Appellate
counsel was not deficient for not raising this issue.

18

Moving on to Phillips' claims that his appellate counsel was deficient for not
arguing the court erred by not giving a justified use of force instruction, we find no
deficiency. When an error on the jury instructions was not objected to at the trial court, an
appellate court reviews the claim of error for clear error. To establish clear error, Phillips
would have had to firmly convince the appellate court that the giving of the instruction
would have made a difference in the verdict. See State v. Cooper, 303 Kan. 764, 770, 366
P.3d 232 (2016). Based on our Supreme Court's analysis about the harmlessness of the
prosecutorial error of misstating the law and the weakness of Phillips' claim of justified
use of force, it is unlikely our Supreme Court would have reversed Phillips' convictions if
the issue had been raised. See Phillips, 299 Kan. at 505-08. Even if we did find that it
was deficient for Phillips' appellate counsel to not raise the jury instruction issue, we see
no reasonable probability that it would have been successful on appeal. See Miller, 298
Kan. at 934-35.

Phillips has not stated a claim of ineffective assistance of appellate counsel for
which he would be entitled to relief. Summary denial of the motion was appropriate for
these claims.

We remain unmoved by Phillips' remaining claims.

In Issue I through Issue VII of Phillips' motion, he raises several trial errors.
Generally, trial errors must be raised on direct appellate review and are not grounds for
reversing a conviction under K.S.A. 60-1507. Woods v. State, 52 Kan. App. 2d 958, 964,
379 P.3d 1134 (2016); Supreme Court Rule 183(c)(3) (2018 Kan. S. Ct. R. 223).

Even so, a movant may obtain review of trial errors by showing exceptional
circumstances. This means that there was an intervening change in the law that prevented
the trial error from being raised on direct appeal or the movant had ineffective assistance
19

of counsel. See State v. Mitchell, 297 Kan. 118, 123, 298 P.3d 349 (2013); Rowland, 289
Kan. at 1087.

Phillips does not argue that there is a change in law that would permit him to
address his trial errors in his K.S.A. 60-1507 motion. Instead, he claims ineffective
assistance of counsel as the basis for exceptional circumstances. As discussed above, the
claims of ineffective assistance of appellate counsel are not grounds for relief. For the
same reasons, the claims of ineffective assistance of counsel are not grounds for
exceptional circumstances. Phillips has not shown that either form of exceptional
circumstances applies. And the district court fully addressed the merits of each claim, and
we find the court's reasoning is sound.

In his brief, Phillips raises one additional claim for exceptional circumstances—
his trial counsel has surrendered his license because of ethical violations. This claim lacks
an evidentiary basis. While our Supreme Court accepted the voluntary surrender of the
trial counsel's license and ordered disbarment, Phillips makes no connection between the
counsel's representation of Phillips and the eventual disbarment. See In re Rosel, 296
Kan. 97, 97-98, 290 P.3d 611 (2012). The fact the trial counsel was eventually disbarred
has little relevance to whether Phillips received ineffective assistance of counsel during
his trial. Appellate counsel was not deficient for failing to raise this claim that is
apparently unrelated to Phillips' trial. We see no exceptional circumstances that would
compel us to address these claims of trial errors now.

Finally, Phillips raises a claim that appellate counsel was ineffective because the
issues raised precluded a claim of cumulative error. This issue was not raised in his
60-1507 motion. Generally, issues cannot be raised for the first time on appeal. Phillips
provides no reason that this issue should be considered; thus, we should not consider the
issue. See State v. Godfrey, 301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015).

20

Based on the motion, files, and record, Phillips has not raised a claim for which
relief can be granted. The district court did not err in summarily denying his motion.

Affirmed.