Tatum v. State

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NOT DESIGNATED FOR PUBLICATION

No. 117,062

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHATHA TATUM,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed August 24,
2018. Affirmed.

Chatha Tatum, appellant pro se.

Ethan Zipf-Sigler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., MALONE and STANDRIDGE, JJ.

PER CURIAM: Chatha Tatum appeals from the district court's summary denial of
his second motion for relief under K.S.A. 2017 Supp. 60-1507 as untimely, successive,
and conclusory. Finding no error, we affirm.

FACTS

The relevant facts relating to Tatum's convictions are set forth in the Kansas
Supreme Court's opinion in State v. Tatum, 281 Kan. 1098, 135 P.3d 1088 (2006):
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"On December 17, 2003, Damon Walls, his girlfriend Kyea Kimbrough, and his
friend Terrell Williams drove to Dwayne Coates' house in Kansas City, Kansas, to
purchase marijuana. The buy had been prearranged shortly before. When they arrived at
Coates' house, Walls parked the car and Williams got out. As Williams walked up to the
house, Walls' car was hit by a barrage of gunfire. Walls and Kimbrough both received
multiple gunshot wounds. Walls survived but Kimbrough died.
. . . .
". . . Walls identified the shooters as 'Edie' and 'Charlie' and said they were
driving a gray Chevy minivan. The investigation [led] the police to suspect that 'Edie' was
Chatha Tatum. The next day, when Walls was shown a photographic lineup that included
Tatum's photograph, he immediately identified Tatum as one of the shooters.
. . . .
"Williams . . . told officers he saw a man he knew as Edie shooting at Walls' car.
. . . .
"The defense called no witnesses. The jury found Tatum guilty of one count of
first-degree murder and one count of attempted first-degree murder. Tatum received a
hard 50 life sentence on the first-degree murder conviction and a concurrent sentence of
195 months on the attempted murder conviction." 281 Kan. at 1100-01, 1106.

The Kansas Supreme Court affirmed Tatum's convictions on direct appeal. 281 Kan.
1098.

In 2007, Tatum filed a pro se K.S.A. 60-1507 motion. Tatum's motion alleged that
the trial court had erred in instructing the jury in several respects and that his trial counsel
had been ineffective in failing to request jury instructions on lesser included offenses.
Tatum requested the district court appoint counsel to represent him and hold an
evidentiary hearing. The district court appointed attorney Steven Alexander to represent
Tatum. Alexander later filed a supplemental motion to Tatum's pro se motion for relief
under K.S.A. 60-1507. The supplemental motion included additional claims that trial
counsel was ineffective for (1) failing to object to the reasonable doubt jury instruction,
(2) failing to adequately investigate an alibi defense, and (3) failing to object to improper
character evidence. The supplemental motion also alleged that Tatum's appellate counsel
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was ineffective for failing to raise on direct appeal (1) any claims of jury instruction
error, (2) the district court's exclusion of certain evidence, and (3) the admission of gang
evidence on grounds that it violated Tatum's federal rights to due process. See Tatum v.
State, No. 110,299, 2015 WL 4486775, at *5-6 (Kan. App. 2015) (unpublished opinion).

The district court held an evidentiary hearing on Tatum's 1507 motion. Tatum
testified at the hearing and also presented testimony from his trial counsel, KiAnn
McBratney; and his mother, Sandra Tatum. After hearing this testimony and the
arguments from counsel, the district court denied Tatum's motion. Tatum appealed to this
court, arguing that (1) the trial court erred in failing to instruct the jury on lesser included
offenses and (2) McBratney was ineffective for failing to request or object to the
omission of those instructions and for failing to adequately investigate an alibi defense
prior to trial. We affirmed the district court's denial of Tatum's 1507 motion. Tatum, 2015
WL 4486775 at *13.

In 2016, Tatum filed a second pro se motion for relief under K.S.A. 60-1507. In
the motion, Tatum argued that McBratney had been ineffective for failing to investigate
an alibi defense and call certain witnesses to testify on his behalf at trial. Tatum also
argued that the State committed prosecutorial misconduct by threatening and intimidating
a potential defense witness into invoking his right not to testify at Tatum's trial, as
guaranteed by the Fifth Amendment to the United States Constitution. Although
conceding his motion was untimely under K.S.A. 2017 Supp. 60-1507(f)(1), Tatum
argued failing to consider the merits of his motion would result in a manifest injustice.

The district court summarily denied Tatum's 1507 motion without holding a
hearing. Specifically, the court held that (1) Tatum's allegations were conclusory and
unsupported by the record, (2) Tatum failed to allege exceptional circumstances that
would justify the court's consideration of what the court deemed to be a successive
motion, and (3) Tatum failed to establish manifest injustice would result if the court
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declined to reach the merits of his motion. Tatum moved to alter or amend the district
court's judgment and filed a "'Supplemental Affidavit of Truth in Support of Habeas
Corpus.'" The district court denied Tatum's motion. Tatum appeals.

ANALYSIS

Tatum argues the district court erred by summarily denying his 1507 motion
without holding an evidentiary hearing. Tatum raises several arguments on appeal that
may be combined into the following issues: (1) the district court failed to make findings
of fact and conclusions of law as required by Kansas Supreme Court Rule 183(j) (2018
Kan. S. Ct. R. 223), (2) McBratney was ineffective in failing to investigate and present
certain witness testimony at trial, (3) Alexander was ineffective in failing to present
certain witness testimony at the evidentiary hearing on his first 1507 motion, (4) the State
committed prosecutorial misconduct, and (5) the district court erred by rejecting his claim
that manifest injustice warranted an extension of the one-year time limitation set forth in
K.S.A. 2017 Supp. 60-1507(f)(1)(A). We will address each of the issues raised by Tatum
on appeal and consider Tatum to have abandoned any issues raised in his 1507 motion
that were not advanced on appeal. See State v. Reu-El, 306 Kan. 460, 471, 394 P.3d 884
(2017) (issues raised in district court but not advanced on appeal are considered
abandoned).

To be entitled to relief under K.S.A. 60-1507, the movant must establish by a
preponderance of the evidence that "the judgment was rendered without jurisdiction, or
that the sentence imposed was not authorized by law or is otherwise open to collateral
attack, or that there has been such a denial or infringement of the constitutional rights of
the prisoner as to render the judgment vulnerable to collateral attack." K.S.A. 2017 Supp.
60-1507(b); see Kansas Supreme Court Rule 183(g).

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A district court has three options when presented with a 1507 motion: It can
summarily dismiss the motion if the "motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief," hold a preliminary hearing
and deny the motion if there are no substantial issues presented, or conduct a full
evidentiary hearing on the issues. K.S.A. 2017 Supp. 60-1507(b); Sola-Morales v. State,
300 Kan. 875, 881, 335 P.3d 1162 (2014).

"'A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an
evidentiary hearing; the movant must make more than conclusory contentions and must
state an evidentiary basis in support of the claims or an evidentiary basis must appear in
the record.' Once a movant satisfies that burden, [the court is] 'required to grant a hearing,
unless the motion is "second" or "successive" and seeks similar relief.' [Citations
omitted.]" 300 Kan. at 881.

Where, as here, the district court summarily denies a K.S.A. 60-1507 motion, we
conduct a de novo review to determine whether the motion, files, and records of the case
conclusively establish that the movant is not entitled to relief. 300 Kan. at 881.

1. Supreme Court Rule 183(j)

Tatum argues the district court failed to make findings of fact and conclusions of
law as required by Kansas Supreme Court Rule 183(j). Tatum asserts the court's failure in
this regard prevents meaningful appellate review and asks us to remand his case to the
district court to make adequate findings.

Supreme Court Rule 183 establishes procedures under K.S.A. 2017 Supp. 60-
1507. Rule 183(j) states: "The court must make findings of fact and conclusions of law
on all issues presented." (2018 Kan. S. Ct. R. 225). The purpose of this rule is to enable
meaningful appellate review. Harris v. State, 31 Kan. App. 2d 237, 239, 62 P.3d 672
(2003). Whether the district court's findings and conclusions comply with Supreme Court
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Rule 183(j) is a question of law subject to unlimited review. Robertson v. State, 288 Kan.
217, 232, 201 P.3d 691 (2009).

Here, the district court's three-page journal entry denying Tatum's 1507 motion
clearly set forth facts and conclusions as to why the court denied the motion—it was
untimely, successive, and conclusory. Because the journal entry is adequate for our
review, it is unnecessary to remand for further findings and conclusions.

2. Ineffective assistance of trial counsel

Tatum argues McBratney was ineffective for failing to investigate or call Damon
Walls or Walls' father to testify at trial. Tatum claims that this testimony would have
implicated another person as the shooter and would have supported his theory that he was
not at the scene of the crime.

Notably, Tatum raised this exact issue in his first 1507 motion. At the evidentiary
hearing on that motion, Alexander questioned McBratney about her failure to have Walls
or Walls' father testify at trial. Tatum also testified extensively about why this testimony
would have helped his case. After considering all of the testimony and other
circumstances, the district court ruled that McBratney's representation did not fall below
an objective standard of reasonableness and even if her performance had been deficient,
Tatum was not prejudiced because the outcome of the proceeding would not have been
different. Although Tatum did not challenge this part of the district court's ruling in the
appeal of his first 1507 motion, we affirmed the district court's decision to deny Tatum's
motion. See Tatum, 2015 WL 4486775 at *7-13.

In a K.S.A. 60-1507 proceeding, the sentencing court is not required to entertain a
second or successive motion for similar relief on behalf of the same prisoner. K.S.A.
2017 Supp. 60-1507(c); State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013); see
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also Kansas Supreme Court Rule 183(d) (2018 Kan. S. Ct. R. 225) ("A sentencing court
may not consider a second or successive motion for relief by the same movant when: [1]
the ground for relief was determined adversely to the movant on a prior motion; [2] the
prior determination was on the merits; and [3] justice would not be served by reaching
the merits on the subsequent motion."). We do so only upon a showing of exceptional
circumstances justifying consideration. State v. Kelly, 291 Kan. 868, Syl. ¶ 2, 248 P.3d
1282 (2011).

"Exceptional circumstances . . . are those unusual events or intervening changes
in the law which prevented the movant from being aware of and raising all of his [or her]
alleged trial errors in his [or her] first post-conviction proceeding, and they must be such
that the ends of justice can only be served by reaching the merits of the subsequent
application. [Citation omitted.]" Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788
(1977).

The record in this case establishes that Tatum's ineffective assistance of counsel
allegations against McBratney already have been determined adversely to him, and that
determination was on the merits. Tatum has asserted no unusual events, intervening
changes in the law, or new evidence in his second K.S.A. 60-1507 motion, so the ends of
justice would not be served by reaching the merits of this issue a second time. The district
court did not err in denying Tatum relief on this basis.

3. Ineffective assistance of 60-1507 counsel

Tatum argues that Alexander was ineffective in failing to have certain alibi
witnesses testify at the evidentiary hearing held with respect to his first 1507 motion.

Tatum did not raise this argument in his current 1507 motion. Instead, Tatum
argued that McBratney (trial counsel) was ineffective for failing to investigate the alibi
witnesses and have them testify at trial. Generally, issues not raised before the district
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court cannot be raised on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375,
403, 266 P.3d 516 (2011). There are several exceptions to this general rule, but Tatum
does not acknowledge his failure to raise this issue below or otherwise argue that any of
the exceptions apply to justify our consideration of the issue. See In re Estate of
Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008) (listing exceptions). Supreme
Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34) requires an appellant to explain why an
issue not raised below should be considered for the first time on appeal. Litigants who
fail to comply with this rule risk a ruling that the issue is improperly briefed, and the
issue will be considered waived or abandoned. State v. Williams, 298 Kan. 1075, 1085,
319 P.3d 528 (2014); see State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015)
(holding that Rule 6.02[a][5] is to be strictly enforced). Because Tatum provides no
justification for this court to consider Alexander's ineffectiveness for the first time on
appeal, we decline to consider the issue.

But even if Tatum had preserved this issue below, he is not entitled to relief
because he provides no support for his claim that Alexander was ineffective for failing to
call the alibi witnesses to testify at the evidentiary hearing. To prevail on a claim of
ineffective assistance of counsel, a movant must establish (1) counsel's performance was
deficient under the totality of the circumstances and (2) prejudice, i.e., a reasonable
probability that but for counsel's deficient performance, the outcome of the proceeding
would have been different. See State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828
(2015). At the 1507 evidentiary hearing, Tatum and his mother both testified that they
told McBratney about the alibi witnesses, what the witnesses would testify to, and how to
contact them. Alexander questioned McBratney at length about her investigation into
Tatum's alibi witnesses and her reasons for not offering their testimony at trial. Because
Alexander fully presented the alibi witness issue at the evidentiary hearing, we cannot say
that his performance was deficient. And even if it was deficient in some way, Tatum has
alleged no facts to support his conclusory assertion that the witnesses' presence at the
hearing would have changed the district court's ruling. See Holt v. State, 290 Kan. 491,
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496, 232 P.3d 848 (2010) (mere conclusory allegations without evidentiary basis will not
support ineffective assistance of counsel claim).

4. Prosecutorial misconduct

Tatum argues that the State committed misconduct by suppressing or failing to
disclose certain evidence relating to two potential defense witnesses: Wall and Antonio
Ford.

Tatum's 1507 motion did not include a claim of prosecutorial misconduct with
respect to evidence relating to Walls. Instead, Tatum alleged only that McBratney was
ineffective for failing to present this evidence about Walls at trial. Again, the well-
established general rule is that issues not raised below are not to be considered for the
first time on appeal unless the party affirmatively asserts and explains why an exception
to the rule applies. Supreme Court Rule 6.02(a)(5); see Godfrey, 301 Kan. at 1043-44;
Williams, 298 Kan. at 1085. Because Tatum has failed to explain why we should consider
this specific prosecutorial misconduct argument for the first time on appeal, we decline to
consider the issue.

Tatum did, however, preserve the prosecutorial misconduct issue involving Ford.
Tatum argues that the State threatened and intimidated Ford into invoking his Fifth
Amendment right not to testify at Tatum's trial. Tatum claims the State's interference with
Ford's decision to testify was premised on a false claim that Ford had been charged with
felony murder, leading the State to improperly argue facts not in evidence. Tatum also
suggests that the State committed Brady violations by failing to disclose exculpatory
evidence; specifically, that Ford was alleged to have said that he did not see Tatum at the
crime scene and that Ford was not charged with felony murder. See Brady v. Maryland,
373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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Tatum's claim of prosecutorial error fails for multiple reasons. First, Tatum's
allegations are matters that Tatum could or should have raised in his direct appeal:

"A proceeding under K.S.A. 60-1507 ordinarily may not be used as a substitute
for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere
trial errors must be corrected by direct appeal, but trial errors affecting constitutional
rights may be raised even though the error could have been raised on appeal, provided
exceptional circumstances excuse the failure to appeal." Kansas Supreme Court Rule
183(c)(3) (2018 Kan. S. Ct. R. 224).

Tatum makes no discernable argument setting forth exceptional circumstances excusing
his failure to raise these issues on direct appeal.

Second, Tatum's claim that the State threatened or intimidated Ford into not
testifying at Tatum's trial is without any evidentiary support in the record. Tatum's claim
is nothing more than a conclusory allegation and is insufficient to provide him any relief.
See Solas-Morales, 300 Kan. at 881 (to prove 1507 motion warrants evidentiary hearing,
movant must make more than conclusory contentions and an evidentiary basis must
appear in the record).

Third, Tatum's suggestion that the State failed to disclose Ford's alleged
exculpatory statements is contrary to the record and contrary to Tatum's assertion below
that McBratney was ineffective in failing to offer Ford's statements at trial. The record
reflects that McBratney was aware of Ford's exculpatory statements; thus, there is no
possibility that the State committed misconduct by failing to disclose these statements.

Fourth and finally, Tatum's assertion that Ford was not charged with felony
murder is incorrect. On June 10, 2004, the State filed a complaint charging Ford and
Dwayne Coates with first-degree murder. Tatum's trial began on July 6, 2004, and ended
on July 13, 2004. On September 3, 2004, Ford entered guilty pleas to conspiracy to
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possess marijuana with intent to sell and attempted possession of marijuana with intent to
sell in exchange for the dismissal of the first-degree murder charge. Although Tatum
contends that Ford's murder charge was dismissed before Tatum's trial, he erroneously
relies on a document reflecting that the district court dismissed the case against Coates,
Ford's codefendant, on July 11, 2004. Because the State did not dismiss Ford's murder
charge until after Tatum's trial, any suggestion that the State committed prosecutorial
misconduct by discussing these charges at Tatum's trial necessarily fails.

5. Manifest injustice exception to time deadline

An action under K.S.A. 60-1507 "must be brought within one year of . . . [t]he
final order of the last appellate court in this state to exercise jurisdiction on a direct
appeal or the termination of such appellate jurisdiction." K.S.A. 2017 Supp. 60-
1507(f)(1)(A). An exception can be made only when necessary "to prevent a manifest
injustice." K.S.A. 2017 Supp. 60-1507(f)(2).

Final disposition of Tatum's underlying criminal case occurred on July 10, 2006,
when the mandate issued. Tatum filed his first 1507 motion before the one-year statutory
time limitation expired on July 10, 2007. Tatum, 2015 WL 4486775 at *5. He did not file
the 1507 motion currently before this court on appeal until May 11, 2016. Tatum
concedes that his motion was untimely but argues that counsel's ineffectiveness
establishes manifest injustice sufficient to justify our review.

When Tatum filed his 1507 motion, the Kansas Supreme Court had held that
manifest injustice must be determined by considering whether: (1) the movant provides
persuasive reasons or circumstances that prevented him or her from filing the 1507
motion within the time limitation; (2) the merits of the movant's claims raise substantial
issues of law or fact deserving the district court's consideration; and (3) the movant sets
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forth a colorable claim of actual innocence. See Vontress v. State, 299 Kan. 607, Syl. ¶ 8,
325 P.3d 1114 (2014).

The Legislature amended K.S.A. 60-1507 in 2016, essentially codifying the first
and third factors set out by the Vontress court. Manifest injustice, as defined by the
statute, now requires the court to only consider: (1) "why the prisoner failed to file the
motion within the one-year time limitation or [2] whether the prisoner makes a colorable
claim of actual innocence." K.S.A. 2017 Supp. 60-1507(f)(2)(A). But our Supreme Court
recently held that the July 2016 amendment to K.S.A. 60-1507 limiting the manifest
injustice inquiry—K.S.A. 60-1507(f)(2)(A)—does not apply retroactively to motions
filed before July 1, 2016. White v. State, 308 Kan. ___, 421 P.3d 718, 726-27 (2018).
Because Tatum's motion was filed before July 1, 2016, we apply the Vontress factors to
determine whether Tatum has established manifest injustice sufficient to justify review of
his untimely motion. Under Vontress, no single factor is dispositive, and courts need not
weigh the factors equally. 299 Kan. at 616-17. Specifically,

"courts should not simply tally the factors and determine, for example, that a movant had
established manifest injustice simply because two out of the three factors favored that
outcome. Instead, a court applying the Vontress factors must consider all the
circumstances and determine if, in total, those circumstances create a situation in which it
would be obviously unfair or shocking to the conscience to not allow a movant to pursue
relief under 60-1507." White, 421 P.3d at 725.

Under the first Vontress factor, Tatum fails to explain why he did not timely file
his most recent 1507 motion for relief. Under the second Vontress factor, our discussion
above demonstrates that Tatum's claims do not raise substantial issues of law or fact
deserving the district court's consideration. And finally, under the third Vontress factor,
Tatum's motion does not set forth a colorable claim of actual innocence. 299 Kan. 607,
Syl. ¶ 8.

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CONCLUSION

Tatum's second 1507 motion was untimely, successive, and conclusory. The
record before us does not support a finding of exceptional circumstances to justify
considering a successive motion for relief or a finding that our failure to consider the
merits of Tatum's motion would result in a manifest injustice. As a result, the district
court did not err in summarily denying Tatum's motion.

Affirmed.