AP: Kansas Supreme Court orders new capital murder trial

1/26/2013

TOPEKA (AP) — A Topeka man convicted of two 2003 murders deserves a new trial in part because his previous attorney provided ineffective representation, the Kansas Supreme Court ordered Friday.

TOPEKA (AP) — A Topeka man convicted of two 2003 murders deserves a new trial in part because his previous attorney provided ineffective representation, the Kansas Supreme Court ordered Friday.

Phillip D. Cheatham was convicted in Shawnee County in 2005 of killing Annette Roberson and Gloria Jones and wounding a third victim, Annetta Thomas, at a Topeka home.

Justice Dan Biles wrote in Friday's opinion that Cheatham was denied a fair trial in part because his attorney at the time, Dennis Hawver of Ozawkie, did not put enough effort into preparing for the case. The justices said the 200 hours Hawver spent working on Cheatham's defense was "appallingly low for a death penalty defense and even more stunning when all but 60 of those hours, as Hawver testified, were spent in trial."

"Specifically, we hold that counsel's performance was deficient in several respects, which were most seriously problematic when he volunteered to the jury that Cheatham had a prior voluntary manslaughter conviction and referred repeatedly to his client as a 'professional drug dealer' and 'shooter of people.' This denied Cheatham his right to a fair trial," Biles wrote.

Shawnee County District Attorney Chad Taylor said the decision to retry the case was not based on anything the state did or didn't do during the first trial. Taylor and one of his deputy district attorneys will prosecute the case and again seek the death penalty.

"We're disappointed to see it come back," Taylor said. "The hard part about this is when you have to put the witnesses and victims through another trial."

A spokesman for Attorney General Derek Schmidt said the office was reviewing the decision but declined to comment further.

Cheatham, 40, is being housed in maximum security custody at the state prison in Hutchinson. He was convicted on drug charges in 1991 and involuntary manslaughter in 1995. Both cases occurred in Wyandotte County.

During the appeals process, Shawnee County District Court Judge Mark Braun ruled Cheatham's death sentence should be set aside based on comments Hawver made during the sentencing portion of the case, but that the convictions should stand.

The decision to resentence Cheatham was based on Braun's conclusion that Hawver "had no business taking on a death penalty case."

Hawver was representing Cheatham on unrelated drug charges at the time of the shootings. Cheatham was arrested and being held in Chicago in December 2003 when he was charged in Topeka for the shootings. Cheatham originally was assigned a public defender to represent him on the murder charges until Hawver became the attorney of record.

According to testimony, Hawver said he maintained a busy practice, with about 60 percent of his cases civil and 40 percent criminal. Hawver tried three noncapital murder cases before 1985 before taking on the Cheatham case. He had said he never tried or participated in a death penalty case and was not on a list of qualified capital case attorneys maintained by the state Board of Indigent Defense.

Hawver said he took the case knowing Cheatham had no means to pay for legal services. Hawver also said he never had intended to use his own money to pay for Cheatham's expenses and there was no written fee agreement though the two had discussed a flat $50,000 fee for defense. Hawver also testified that he took the case out of the "heart-felt belief" that Cheatham was innocent of the crimes.

The justices said the fee arrangement between Hawver and Cheatham constituted a conflict of interest and affected the adequacy of his defense. Hawver testified during the proceedings that he told Cheatham he would be taking other cases to make a living and that he also was contemplating a run for governor.

Hawver frequently has been a candidate for public office, including a bid in 2012 as the Libertarian candidate for the 2nd District U.S. House seat.

Biles wrote that the court found it "distressing" that Hawver didn't familiarize himself with the rigors of a death penalty defense and seek assistance or necessary resources to defend his client.

"It flies in the face of common sense that he so effortlessly dismissed the offer from the BIDS executive director to publically provide assistance," Biles wrote.

Cheatham's case is the second death penalty sentence to be reversed by the Kansas Supreme Court in the past year.

In August, the justices ordered a new trial for Scott Cheever, who was convicted of the 2005 shooting death of Greenwood County Sheriff Matt Samuels. The conviction was set aside when the justices ruled a psychiatrist should not have been allowed to testify about Cheever's psychological records without his consent. Schmidt has appealed the case to the U.S. Supreme Court.

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