Williams v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 112,971

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JAMAL R. WILLIAMS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed December 11,
2015. Affirmed.

Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for
appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., LEBEN and BRUNS, JJ.

Per Curiam: In an appeal following a remand to the district court for a full
evidentiary hearing, Jamal R. Williams challenges the district court's order denying his
K.S.A. 60-1507 motion. Williams contends that the district court should have granted
him a new trial because of newly discovered evidence suggesting that he was acting in
self-defense when he shot the victim. However, the district court's decision rests
primarily on its determination of the witnesses' credibility, which is beyond the scope of
2

our review. Accordingly, we conclude that the district court did not abuse its discretion in
denying Williams a new trial. Thus, we affirm.

FACTS

The facts of Williams' underlying criminal case as well as his several
postconviction motions are set forth as follows in Williams v. State, No. 109,228, 2014
WL 1362994, at *1-2 (Kan. App. 2014) (unpublished opinion):

"Williams was convicted by a jury of aggravated battery in 1996. He was given a
departure sentence of 250 months in prison and 36 months of postrelease supervision.
Williams directly appealed his conviction, claiming violations of his statutory and
constitutional speedy trial rights, and this court affirmed his convictions. State v.
Williams, No. 77,866, unpublished opinion filed July 24, 1998, rev. denied 265 Kan. 889
(1998).

"Williams has since filed at least nine postconviction motions challenging either
his conviction or sentence. State v. Williams, No. 105,009, 2011 WL 6310442, at *1
(Kan. App. 2011) (unpublished opinion), rev. denied 296 Kan. 1136 (2013); State v.
Williams, No. 87,905, unpublished opinion filed July 12, 2002. Three of these were
motions challenging his sentence as illegal. He filed the first motion to correct an illegal
sentence in 2001, in which he alleged his upward departure sentence was unconstitutional
under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
The district court denied this motion, and the Kansas Supreme Court affirmed that denial.
Williams, No. 87,905. Williams filed the second motion in 2006, which alleged the
aggravating factors relied on by the district court for his departure sentence were imposed
without being proved beyond a reasonable doubt to the jury. The district court denied this
motion as res judicata based on the prior Kansas Supreme Court decision, and a panel of
this court summarily affirmed. The third motion filed in 2010 alleged that the upward
durational departure sentence was illegal under Apprendi and that Williams' claims of
ineffective assistance of trial and appellate counsel were not raised in a prior appeal. The
district court denied this motion as res judicata, having been previously decided on
appeal, and a panel of this court affirmed. Williams, 2011 WL 6310442.
3

"The other motions were K.S.A. 60-1507 motions. Although Williams listed six
previous K.S.A. 60-1507 motions in the K.S.A. 60-1507 motion to the district court
below, he did not provide the records of any of those district court actions in the record
on appeal. As such, we do not know what issues were raised in these prior motions.

The instant K.S.A. 60-1507 motion was filed on August 2, 2012. Although
Williams raised claims of prosecutorial misconduct and ineffective assistance of appellate
counsel in this motion, the crux of his claim was the existence of newly discovered
evidence that he says is so vital to the theory of self-defense he presented at trial that it
would be likely to produce a different result upon retrial. To support his claim, Williams
attached to his motion an affidavit signed by Tress Morgan, the nephew of the victim,
Yusef Presley. Morgan's affidavit stated that in March 2011, Presley told Morgan that
Presley had a gun on his person during the altercation in which Williams was charged
with aggravated battery, but Presley passed the gun off to someone else before Presley
was taken to the hospital. Presley also told Morgan that Presley and another witness
testified against Williams only because the district attorney threatened to revoke their
probation if they did not testify. Finally, Presley told Morgan that another witness
testified against Williams only because the district attorney told that witness she would
lose her kids if she did not do so.

"On September 13, 2012, the district court summarily denied Williams' motion.
The court rendered its decision on a preprinted form order by checking the box next to
the statement providing: 'Court declines to exercise jurisdiction because your request
represents a second or successive motion for similar relief, and fails to set forth facts
demonstrating manifest injustice or exceptional circumstances to warrant relief. K.S.A.
60-1507(c).'

"Williams filed a motion for reconsideration on grounds that the district court
failed to make adequate findings of fact and conclusions of law on the issue of
exceptional circumstances as required by Supreme Court Rule 183(j) (2013 Kan. Ct. R.
Annot. 278). To that end, Williams argued in the motion for reconsideration that the new
evidence created the exceptional circumstance required to justify having the court
consider a successive K.S.A. 60-1507 motion. Nevertheless, the district court denied the
motion for reconsideration."
4

On April 4, 2014, Williams' K.S.A. 60-1507 motion was remanded to the district
court's decision for an evidentiary hearing on Williams' claim of newly discovered
evidence. 2014 WL 1362994, at *4. Specifically, the district court was directed to
determine the affiant's credibility as well as the credibility of any other witnesses who
may support Williams' claim. 2014 WL 1362994, at *3.

On September 24, 2014, the district court conducted an evidentiary hearing at
which Williams testified in support of his motion. According to Williams, he met
Presley's nephew, Tress Morgan, in 2012 while the two were incarcerated in the El
Dorado Correctional Facility (EDCF). Williams claimed that Morgan told him that he
spoke with Presley, who admitted to having a gun in his belt at the time of the shooting
but was unable to draw the weapon before Williams shot him. Moreover, in the affidavit
purportedly signed by Morgan, it is alleged that before Presley was taken to the hospital
following the shooting, he gave his gun to a person named Clinton a/k/a "June Pee Wee"
May.

Presley testified that he had never spoken about the shooting to Morgan or anyone
else in the past 4 years. According to Presley, he did not know where Morgan was or
whether he was incarcerated. Presley further testified that he had been in federal custody
since his arrest on September 20, 2011. As such, he was prohibited from speaking with
anyone incarcerated at another prison.

Morgan testified that shortly after he arrived at EDCF in April 2012, he met
Williams, discussed Williams' case, and reviewed some paperwork that Williams
possessed. However, he denied ever talking to Presley about the shooting and claimed
that he had not spoken with Presley since 2009. Morgan testified that when Williams
asked him to write an affidavit, he refused to do so and that he did not see the purported
affidavit until Williams' attorney showed it to him a few days before the evidentiary
5

hearing. In addition, Morgan testified that he had nothing to do with the affidavit and that
he did not recognize the notary who signed the alleged affidavit.

The State also questioned Morgan about some specific allegations made in the
purported affidavit. For example, the purported affidavit claims that in March 2011,
Morgan befriended a fellow inmate named Damion Vontress while the two were located
at Lansing Correctional Facility (LCF). However, Morgan agreed with a KASPER report,
which indicated that he was not transported to LCF until September 21, 2011. Morgan
was also asked about another KASPER report that evidently indicated Vontress was on
parole in Sedgwick County in March 2011. Moreover, Morgan denied that he ever
worked in the kitchen at LCF as alleged in the purported affidavit.

On November 19, 2014, the district court entered an order denying Williams'
K.S.A. 60-1507 motion. Thereafter, Williams filed this appeal.

ANALYSIS

Williams contends that the district court's findings of fact are insufficient to
support its conclusions of law as required by Supreme Court Rule 183(j) (2015 Kan. Ct.
R. Annot. 271). On appeal, we review the district court's findings of fact to determine
whether they are supported by substantial competent evidence and are sufficient to
support the court's conclusions of law. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311
(2013). Substantial evidence refers to legal and relevant evidence that a reasonable
person could accept as being adequate to support a conclusion. State v. May, 293 Kan.
858, 862, 269 P.3d 1260 (2012). We review the district court's ultimate conclusions of
law de novo. Adams, 297 Kan. at 669.

Although Williams never filed a motion for new trial, he filed a K.S.A. 60-1507
motion asking this court to reverse and remand this case for a new trial based on newly
6

discovered evidence. See State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013) (treating
movant's motion for new trial as a motion for habeas relief under K.S.A. 60-1507);
Moncla v. State, 285 Kan. 826, 839-41, 176 P.3d 954 (2008) (considering movant's claim
for a new trial based on newly discovered evidence that he raised in a K.S.A. 60-1507
motion). A district court may grant defendant a new trial "if required in the interest of
justice." K.S.A. 22-3501(1). We review a trial court's decision on a motion for new trial
for an abuse of discretion. State v. Soto, 301 Kan. 969, 977, 349 P.3d 1256 (2015). Abuse
of discretion means that the decision was (1) arbitrary, fanciful, or unreasonable; (2)
based on an error of law; or (3) based on an error of fact. Fischer v. State, 296 Kan. 808,
825, 295 P.3d 560 (2013).

To establish the right to a new trial based upon newly discovered evidence, a
criminal defendant must establish: (1) that the newly proffered evidence could not have
been produced at trial with reasonable diligence; and (2) that the newly discovered
evidence is of such materiality that it would be likely to produce a different result upon
retrial. State v. Laurel, 299 Kan. 668, 676, 325 P.3d 1154 (2014). In the present case, a
prior panel of this court has already determined that Williams could not have presented
with reasonable diligence the proffered evidence set forth in the purported affidavit since
he claims that Morgan and Presley did not speak with each other until well after his
conviction. Williams, 2014 WL 1362994, at *3. Accordingly, we are left with the
question of whether the alleged newly discovered evidence is material.

The Kansas Supreme Court has explained that when determining the materiality of
alleged newly discovered evidence,

"[T]he district court must assess the credibility of the newly proffered evidence.
[Citations omitted.] Ordinarily, a new trial is not warranted when the newly proffered
evidence merely tends to impeach or discredit the testimony of a witness. [Citations
omitted.] [And], even when the evidence tends to impeach the testimony of a witness, the
7

presence or absence of corroborating evidence is another factor to consider in
determining whether the newly discovered evidence is of such materiality that it is likely
to produce a different result upon retrial. [Citations omitted.]" State v. Rojas-Marceleno,
295 Kan. 525, 540, 285 P.3d 361 (2012).

On appeal, however, we are not to reassess the district judge's credibility
determination made after an evidentiary hearing. Laurel, 299 Kan. at 676-77; see State v.
Betancourt, 301 Kan. 282, 302, 342 P.3d 916 (2015). Here, the district court based its
materiality determination on the credibility—or lack thereof—of the Williams' testimony
and of the purported affidavit submitted in support of the K.S.A. 60-1507 motion. See
State v. Warren, 302 Kan. ___, 356 P.3d 396, (No. 107,159, filed August 28, 2015), slip
op. at 20 ("'Zero credibility means zero materiality and zero chance that the outcome of a
retrial would be different.'") (quoting Laurel, 299 Kan. at 676-77). Furthermore, a review
of the record reveals that there is substantial evidence to support the district court's
determination that neither the purported affidavit nor Williams' testimony was credible,
and we decline Williams' invitation to reassess this determination. See Laurel, 299 Kan.
at 676-77.

Rather, we find that the district court properly found an absence of corroborating
evidence to support the purported affidavit. Although Williams points to certain
consistencies between his and Morgan's testimony, the differences are even starker. Not
only did Morgan deny creating or having anything to do with the purported affidavit, he
also denied ever speaking to Presley about the shooting. Moreover, Presley testified that
he was in federal prison at the time he allegedly spoke to Morgan about the shooting and
that he was prohibited from talking to inmates in other prisons. Perhaps the most
significant piece of evidence undermining the purported affidavit's validity is Morgan's
KASPER report indicating that Morgan did not arrive at LCF until 6 months after the
date that he allegedly met Vontress at LCF's kitchen.

8

We, therefore, conclude that the district court's decision was supported by
substantial evidence and that the district court did not abuse its discretion by finding that
Williams was not entitled to a new trial based on newly discovered evidence.

Affirmed.