State v. Evans ( 2022 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,302
STATE OF KANSAS,
Appellee,
v.
BRANDON T. EVANS,
Appellant.
SYLLABUS BY THE COURT
1.
Claims alleging a violation of the Sixth Amendment right to effective assistance of
counsel are analyzed under the well-established, two-part test established in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, the defendant
must demonstrate trial counsel's performance was deficient. To establish deficiency, the
defendant must demonstrate counsel's representation fell below an objective standard of
reasonableness when considering the totality of the circumstances. When scrutinizing
counsel's performance, courts must afford a high level of deference and make every effort
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. If the defendant establishes counsel's deficient performance, the court
determines whether there is a reasonable probability that but for counsel's deficient
performance, the outcome of the trial would have been different. A reasonable probability
is one sufficient to undermine confidence in the trial's outcome.
2.
When a district court conducts an evidentiary hearing and makes findings of fact
and conclusions of law in ruling on a claim of ineffective assistance of counsel, the
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appellate court reviews the district court's factual findings for substantial competent
evidence and determines whether those findings support the district court's legal
conclusions. Appellate courts do not reweigh evidence, pass on the credibility of
witnesses, or resolve conflicts in the evidence. When evaluating the district court's legal
conclusions, the appellate court applies a de novo review standard.
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed February 25, 2022.
Affirmed.
Kristen B. Patty, of Wichita, argued the cause and was on the brief for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
STANDRIDGE, J.: In 2018, a jury convicted Brandon T. Evans of first-degree
murder, aggravated battery, and criminal possession of a weapon. He filed a posttrial
motion alleging his trial counsel was ineffective for several reasons. The district court
denied Evans' motion after a hearing. On appeal, Evans argues his convictions should be
reversed, his sentence should be vacated, and he should be granted a new trial and a new
pretrial immunity hearing because his trial counsel was ineffective by (1) coercing Evans
and Evans' witnesses to change their testimony about the events leading up to the murder
and (2) disregarding the firearm expert's testimony regarding the functionality of the
victim's gun. But the record shows counsel did not disregard the expert's testimony or
coerce Evans or his witnesses to change their testimony. We affirm.
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FACTS
The State charged Evans with first-degree premeditated murder in the shooting
death of Isaac J. Lewis, aggravated battery of A.G., and criminal possession of a weapon
as a convicted felon. These charges stemmed from an incident that occurred at a private
after-hours club in Wichita.
The night of the shooting, Evans, his brothers Justin Arrington and Kennell Evans,
and Tanesha Thomas went to an after-hours club previously known as Daiquiris.
Surveillance footage of the club's main entrance/exit shows the group arriving shortly
after 1 a.m., getting patted down by club security, and being allowed to enter without
issue. While there were few people at the club when the group arrived, it became packed
and loud as the night progressed. Daiquiris had video cameras recording the club's main
entrance/exit, but there were no video cameras inside the club.
The victim, Lewis, arrived at Daiquiris just a few minutes before 3 a.m.
Surveillance footage of the club's entrance shows security screened Lewis and turned him
away. He reappeared at the door at 3:06 a.m. Lewis handed the guard something—the
same guard that earlier turned him away—and the guard allowed Lewis to enter. About
five minutes later, Lewis left Daiquiris through the same door he entered. The video then
shows Evans running up behind Lewis and shooting Lewis in the back twice: once in the
neck and once in the lower left back as Lewis fell forward. The first bullet exited Lewis'
neck and hit another customer, A.G., in her upper left arm, splintering her humerus. The
second bullet traveled through Lewis' liver and lodged in his heart. After Lewis fell to the
ground, the video shows Evans firing another shot at Lewis before fleeing the scene on
foot. That third shot hit the concrete next to Lewis, causing the bullet to fragment and
leave minor abrasions on Lewis' abdomen.
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Officer Joshua Rounkles responded to the shooting and helped another officer
triage Lewis' wounds. As Officer Rounkles was treating Lewis, he discovered a loaded
black Ruger LCP .380 caliber handgun on the ground underneath Lewis' buttocks. He
also found two spent .40 caliber shell casings near Lewis. Officer Rounkles collected the
gun and the casings and handed them to another nearby officer. Medical personnel
pronounced Lewis dead at the scene. The coroner later determined the cause of Lewis'
death was multiple gunshot wounds, and the manner of death was a homicide.
Meanwhile, Officer Aric St. Vrain chased Evans on foot after another customer
identified him as the possible shooter and described what Evans was wearing. Officer
Philip Berger was not on scene at the time of the shooting, but immediately after he
arrived, he helped Officer St. Vrain chase Evans. Both officers saw that Evans had a gun
in his hand as he was running away from them. After running a short distance away from
the club, Evans disappeared behind a building but then reappeared to surrender himself to
the officers. While arresting Evans, the officers noticed Evans no longer had a gun and
began searching for it. Officer St. Vrain and another officer later climbed onto the roof of
the building Evans disappeared behind and discovered a silver and black Ruger .40
caliber Smith & Wesson handgun.
Evans admitted to shooting Lewis but consistently maintained he did so in self-
defense and in defense of his family members who were present at Daiquiris that night.
Evans' trial counsel, Quentin Pittman, pursued both theories. A week before trial, Pittman
filed a motion for immunity from prosecution based on these theories. The motion
alleged Lewis threatened to immediately harm Evans and Evans' family members, Lewis
brandished a firearm while making these threats, Evans warned Lewis he would shoot
Lewis if Lewis did not stop threatening them, Lewis said he would kill Evans and Evans'
family, and Evans shot and killed Lewis in self-defense and in defense of his family.
Evans claimed he should be immune from prosecution based on Kansas' stand-your-
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ground law because he sincerely believed deadly force was necessary to defend himself
and his family and because a reasonable person in the same situation would have
perceived deadly force was necessary.
The district court held a hearing on the motion. Evans took the stand and testified
about his confrontation with Lewis inside Daiquiris on the night of the shooting—an
exchange not caught on camera. Evans said he, his brothers, and Thomas arrived at the
club around 1 a.m. A couple hours later, he was at the bar trying to buy a drink when
Lewis approached him in "an aggressive manner." Lewis bumped into Evans a couple
times at the bar to try and get Evans' attention. When Evans turned to face Lewis, Lewis
pulled up his shirt to reveal a gun and told Evans he believed Evans had something to do
with Lewis' cousin being shot. Lewis said he was going to kill Evans and Evans' family
that night. Lewis then turned around and walked away.
Evans went to find his brothers. He told them they had to leave because Lewis had
a gun. As he and his brothers were heading toward the main exit, Lewis confronted Evans
again. Evans testified Lewis pulled out his gun, said he would kill Evans and "all [Evans']
friends," and then turned around and headed for the main exit, saying he was going to kill
"that motherfucker outside." Evans explained that he texted his cousin earlier that night to
come to Daiquiris to pick him up. Evans believed his cousin was outside in the parking
lot waiting for him, and when Lewis said he was going to kill someone outside, Evans
believed Lewis was talking about Evans' cousin. Evans testified he was not sure if Lewis
still had the gun in his hand as he was leaving, but Evans quickly grabbed a gun off
another unknown customer, followed Lewis to the main exit, and shot Lewis from
behind.
On cross-examination, Evans admitted several key points. First, he said he did not
attempt to get help from any of the security guards inside the club after Lewis threatened
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him the first time. He admitted he did not know if his cousin was outside or not—he only
had received a text message before the shooting that his cousin was on his way to
Daiquiris. Evans acknowledged several people were around when Lewis pulled out his
gun, but no one tried wrestling the gun away from Lewis, and no one ran to security to
alert them Lewis had a gun. Evans conceded Lewis did not fire his gun at any point.
Finally, Evans admitted he intended to kill Lewis when he shot Lewis.
Evans did not call any additional witnesses at the hearing. In denying Evans'
motion for immunity from prosecution, the district court found:
"Looking at all the facts that we have before us, the victim was leaving the club
when he was shot. His back was turned to the defendant, the victim was shot directly two
times, and fragments hit him from the third shot upon—after he was already on the
ground.
"Weighing all the credibility of the witnesses, we have—other than the
defendant's statement himself, we have no corroborating evidence as to any threats that
were made to the defendant or his family. Other than, again, the defendant's statements.
"There were never any reported threats made to the bar staff or law enforcement
pursuant to Detective [Michelle] Palmer[, the lead detective,] who reviewed all discovery
and reports in this matter.
"Whether they were inside or outside security staff, no one reported that to the
point that it made it in any reports from law enforcement at any time before or after these
events.
"The Court makes a finding, based upon all this information, again, the victim
was leaving the premises, had his back turned, did not appear to be making any threats at
the time that this occurred. The Court makes a finding that there was no imminent threat
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to the defendant, or anyone else at the time that the victim was shot in the back of the
head.
"Further, the victim and the defendant passed by where the money was taken,
passed by where the bar was, there was security just steps—we don't know whether there
was security inside to a point that he could have talked to someone but right outside that
door there we know there was security, and he did not choose to tell anybody else or seek
help at the time he acted and shot the victim at that point.
"With that being said, again, there was no imminent threat to the defendant by
the victim at this point in time."
The case proceeded to jury trial the following week. Relevant to this appeal, the
State called a firearms expert, Roger Michels, to examine both Lewis' and Evans' guns.
Michels performed a function test on Lewis' gun. He testified:
"So as received, I had immense difficulty in actuating the slide, so the metal top
portion, it was very difficult to pull back. Upon getting it to pull back, it would get stuck
in that fully forward position and I would have to kind of hit the back of it to get it to
close. There was also an issue with the trigger as received whereas when I pulled on the
trigger, it was just going back. It wasn't engaging in anything. With that specific type of
firearm, that trigger has a bar connected to it that actually connects to the hammer, which
is what causes—which that hammer, when you pull the trigger, when you pull that
trigger, that hammer is pulled rearwards and then is released forwards. When I was
pulling the trigger that was not happening because that bar was stuck in the lower
position and it wasn't engaging. . . .
....
"We then continued and took the slide off of the firearm to try to diagnose the
issue and upon—and all we could tell there's just a lot of dirt and material buildup. Upon
putting that slide back on the firearm, it returned to functioning normal."
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Michels also testified that he matched the .40 caliber shell casings found near Lewis'
body to the gun Evans used.
During the defense's case in chief, Evans called his two brothers and a security
guard from Daiquiris to testify on his behalf. Arrington testified he was at the bar with
Evans and witnessed the altercation between Lewis and Evans. He overheard Lewis tell
Evans that Evans was going to die that night just like "[Evans'] dead mother." Arrington
said Evans blew it off. But then Arrington said he saw Lewis pull out a gun like he was
going to point it at Evans, put the gun away, and then pull the gun out again. Arrington
testified Lewis then walked away, and Evans went to get a security guard and look for
their other brother. Arrington clarified he did not witness the shooting, and when he heard
the gunshots, he ran out of the club. As he ran out the main exit, he saw Lewis lying on
the floor outside the door.
Kennell Evans testified he was near the dance floor—approximately 7 to 8 feet
away from the bar—when he saw the altercation between Evans and Lewis. He said he
saw Lewis "rush[]" Evans with his firearm out. Kennell could see the firearm and he
heard Lewis yell at Evans that he was going to kill Evans. Then Kennell saw Evans walk
toward him. Kennell said Evans was "fearful" and "in a panic mode." Evans told Kennell
they had to leave. When they headed for the main exit, Kennell said Lewis was blocking
the door so they could not leave. He said Lewis had the gun in his hand as he was
walking out of Daiquiris.
Evans took the stand in his defense. His trial testimony was the same as his
testimony from the immunity hearing with a couple of exceptions.
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The jury returned a guilty verdict on all three counts. The district court set the
matter for sentencing and ordered a presentence investigation report. Before sentencing,
Evans filed a series of pro se motions alleging Pittman was ineffective as trial counsel.
The district court agreed to consider two of the claims: (1) Pittman was deficient by
coercing Evans and Evans' witnesses to change their stories and by withholding
exculpatory evidence about Lewis' gun misfiring, and (2) Pittman was allegedly deficient
by failing to request a competency hearing for Evans. The court appointed Steven Wagle
to represent Evans on his motion. Wagle filed a separate motion alleging ineffective
assistance of counsel and incorporating Evans' pro se motions.
The district court held an evidentiary hearing—commonly known as a Van Cleave
hearing—to consider Evans' claim of constitutionally ineffective legal representation by
trial counsel. See State v. Van Cleave, 239 Kan. 117, 119-20, 716 P.2d 580 (1986).
After hearing the evidence, the court held Pittman did not coerce Evans and other
witnesses to change their stories or withhold exculpatory evidence about Lewis' gun
misfiring. The court then sentenced Evans to life without the possibility of parole for 618
months as to the first-degree murder charge. It further ordered Evans to serve an
additional 171 consecutive months on the remaining counts.
Evans timely appealed the denial of his motion alleging ineffective assistance of
counsel to this court. We have authority to hear his appeal under K.S.A. 2020 Supp. 22-
3601(b)(4) because Evans was convicted of first-degree murder, an off-grid person
felony. We also have jurisdiction under K.S.A. 2020 Supp. 22-3601(b)(3) because he was
sentenced to life in prison without parole for a minimum of 618 months.
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ANALYSIS
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to effective assistance of counsel. State v. Betancourt, 301 Kan. 282,
306, 342 P.3d 916 (2015). In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the United States Supreme Court established a two-part test to
determine whether a defendant's right to effective assistance of counsel was violated.
First, the defendant must demonstrate trial counsel's performance was deficient. 301 Kan.
at 306. To establish deficiency, the defendant must demonstrate counsel's representation
fell below an objective standard of reasonableness when considering the totality of the
circumstances. When scrutinizing counsel's performance, courts must afford a high level
of deference and make every effort 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.'" State v. Cheatham, 296 Kan. 417, 431-
32, 292 P.3d 318 (2013) (quoting Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868[2007]).
If the defendant establishes counsel's deficient performance, the court determines
whether there is a reasonable probability that but for counsel's deficient performance, the
outcome of the trial would have been different. Betancourt, 301 Kan. at 306; Cheatham,
296 Kan. at 432. A reasonable probability is one sufficient to undermine confidence in
the trial's outcome. 296 Kan. at 432.
The district court conducted an evidentiary hearing on Evans' ineffective
assistance of counsel claims. On appeal, we review the district court's factual findings for
substantial competent evidence and determine whether those findings support the district
court's legal conclusions. "'Substantial competent evidence is that which possesses both
relevance and substance and which furnishes a substantial basis in fact from which the
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issues can reasonably be resolved.'" State v. Sanders, 310 Kan. 279, 294, 445 P.3d 1144(2019). Appellate courts do not "'reweigh evidence, pass on the credibility of witnesses,
or resolve conflicts in the evidence.'" 310 Kan. at 294. When evaluating the district
court's legal conclusions, we apply a de novo review standard. State v. Harris, 310 Kan.
1026, 1045, 453 P.3d 1172 (2019); Betancourt, 301 Kan. at 306.
Evans raises two interrelated ineffective assistance of counsel claims: (1) Pittman
disregarded the firearm expert's testimony regarding the functionality of Lewis' gun; and
(2) Pittman coerced Evans and Evans' witnesses to change their original stories that
Lewis pointed the gun at Evans and pulled the trigger, but Lewis' gun misfired. The State
maintains Evans failed to preserve his first claim. But because Evans raises the expert
testimony issue as part of his coercion argument, we find it properly preserved.
1. Pittman did not coerce testimony
We begin our discussion with Evans' coercion claim. At the Van Cleave hearing,
Evans first called Pittman to testify. Pittman explained when he first met Evans, Evans
said that Lewis fired his gun twice inside the bar, causing Evans to chase after Lewis and
shoot him. Based on the surveillance video evidence, Pittman said he knew this was not
true. Pittman played the video footage for Evans, which showed Lewis did not fire first
and no one inside the club reacted to gunfire until after Evans shot Lewis. Pittman told
Evans if he testified at trial that Lewis fired his gun twice inside the bar, the jury would
not believe him because the video evidence contradicted this version of events. Once
Pittman confronted Evans with this video footage, Evans changed his story: Lewis came
in, brandished his gun to Evans, and threatened Evans. This was the version Evans
testified to at the immunity hearing and at trial.
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Pittman also spoke with Evans' brothers. One brother said Lewis fired shots at
Evans in the bar. Pittman advised the brother his account did not align with Evans'
version of events and contradicted the video evidence. Pittman said he was not coercing
Evans or the witnesses to lie or change their stories—he was encouraging them to tell the
truth based on what the evidence showed.
On cross-examination, Pittman testified he would have been reluctant to put Evans
on the stand to testify Lewis fired his gun twice inside the bar when he knew Evans'
original story contradicted the video footage. But Pittman said if Evans had insisted
Lewis fired his gun twice inside the bar, Pittman would have continued down that road.
Pittman noted, however, that Evans changed his story when Pittman presented him with
the contrary video evidence.
On redirect examination, Pittman admitted Evans told him Lewis' gun misfired.
But Pittman explained Evans told him this in conjunction with Evans' original story that
Lewis actually fired the gun two times.
Evans also testified. He denied he ever told Pittman that Lewis actually fired the
gun two times. Evans testified the only story he gave Pittman was that Lewis pulled the
trigger, but the gun did not fire, which is why Lewis turned around to leave the club.
Evans claims Pittman told him if he stuck to this story, the trial judge would not give him
a self-defense instruction. Evans also testified his brothers signed affidavits stating
Pittman insisted they change their stories, but those affidavits were not in his possession
due to an issue with the mail.
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At the end of the hearing, the district court rejected Evans' claim that Pittman
provided constitutionally deficient performance based on coercion:
"It's not coercion to tell the witnesses to tell the truth, and [the] Court makes that finding.
The witnesse[s'] testimony or counsel's testimony today was when he met with those
witnesses, that's what he told them. They need to tell the truth moving forward, and to
which they did. Not changing the story because of the facts changing, they were changing
the report to purport with the truth and what the evidence showed.
"So the Court finds that these witnesses were not coerced. They were simply told
to tell the truth, to which they did. The Court makes a finding that this interaction with
witnesses was not ineffective assistance of counsel."
Within its decision, the court implicitly found Pittman's testimony more credible than
Evans' testimony. Appellate courts do not reweigh evidence, reassess witness credibility,
or resolve conflicting evidence. Sanders, 310 Kan. at 294.
The Van Cleave hearing transcript establishes the district court's findings are
supported by substantial competent evidence. Specifically, Pittman testified (1) Evans
initially told Pittman that Lewis actually fired his gun twice and, at some point, the gun
misfired; (2) Pittman presented the video to Evans, which showed Lewis did not fire first
and no one inside the club reacted to gunfire until after Evans shot Lewis; (3) Pittman
encouraged Evans to tell the truth; and (4) Evans changed his story and testified Lewis
brandished his gun and threatened Evans, causing Evans to shoot him. Based on the
factual finding, supported by substantial competent evidence, that Pittman did not coerce
testimony, we affirm the district court's legal conclusion that Pittman's performance was
not deficient.
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2. Pittman did not disregard the firearm expert's testimony regarding non-functionality
of the gun
The State called a firearms expert, Roger Michels, to examine both Lewis' and
Evans' guns. Michels testified the .380 gun recovered from Lewis' body did not function
when Michels initially examined it. Michels explained there were two problems with the
.380 gun: (1) the trigger did not engage with the hammer, so it could not fire; and (2) the
gun was dirty, causing the slide to stick in the open position when pulled back. After
cleaning and reassembling the firearm, Michels said it functioned normally.
Evans claims Pittman provided deficient performance by disregarding Michels'
testimony regarding the non-functionality of Lewis' gun. But Evans concedes Pittman
specifically addressed Michels' testimony during closing argument:
"[Defense counsel:] My client is confronted by Lewis. Lewis has a gun. Lewis
has shown him the gun. This is seen by a security guard employed at the club. Lewis
escalates the situation. Lewis isn't retreating. Lewis isn't running away. Lewis is going to
the parking lot to make good on his threat. He's going to shoot [] Quinn and then he's
going to get my client and the rest of his family. Before Lewis can do that, does Brandon
shoot him? Of course he does, and under the circumstances, that shooting was justified.
Because the harm, the danger, and the gun were all real and they were imminent and
Brandon's actions were necessary.
"But we also heard this, right, Isaac didn't get a shot off. He could have taken
him out right then and there. No, he couldn't; right? I don't know if you were paying
attention to Mr. Michels titillating information that he gave us earlier this morning, but
remember this, unbeknownst to Brandon, what? Isaac couldn't get a shot off; right? His
gun wouldn't fire. Roger Michels had to take it apart, had to take the slide off, and put it
back on. After he took care of that, it would shoot. It wouldn't shoot before. So the fact
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that Isaac Lewis didn't fire at my client, who knows, maybe he tried to and that gun
wasn't fireable. You heard it from their witness, their expert from the KBI. It wouldn't
shoot." (Emphasis added.)
Substantial competent evidence supports a finding that Pittman did not disregard
Michels' testimony that the .380 gun was non-functional when first examined; rather,
Pittman specifically presented Michels' testimony to the jury without overemphasizing it
in a manner detrimental to the theories of self-defense. We find no deficiency in Pittman's
performance on this claim.
Affirmed.
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