State v. Mays ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 120,949
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CHRIS LEWIS MAYS,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; JENNIFER ORTH MYERS, judge. Opinion filed January 29,
2021. Affirmed.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Maurice Brewer, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before WARNER, P.J., POWELL, J., and MCANANY, S.J.
PER CURIAM: Chris Lewis Mays has serious anger issues, at least when dealing
with his estranged spouse. Mays and his wife, J.R., were married in June 2015. Early the
following year they had an argument that led to Mays putting a gun to J.R.'s head. As a
result, she moved out but continued to have a relationship with Mays. In February 2017
their daughter was born.
In March 2017, when Mays went to J.R.'s residence to visit the baby, he found that
J.R. was not home. He became angry and returned the following day and broke down the
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door to J.R.'s house. J.R. commenced a protection from abuse action and obtained a final
protection from abuse order which was served on Mays in November 2017.
During the night of December 12, 2017, J.R. was at home sleeping with her new
boyfriend when bullets were fired through her bedroom window. J.R.'s daughter was
asleep in a crib next to the bed. One of the bullets lodged behind J.R.'s headboard. J.R.
called the police. J.R.'s mother, who lived next door, had a security camera at her home
which recorded the incident and showed that the shooter was in a car that closely
resembled Mays' gray Dodge Durango.
About 30 minutes later J.R. received a text message in Spanish which appeared to
have been written using Google Translate. (Mays does not speak Spanish but J.R.
apparently does.) J.R. believed the message came from Mays. The English translation of
the message was "Next time I'm not going to lose/miss."
The police went to a house owned by Mays' mother where they found a blue
Dodge Durango outside. The officers saw shell casings on the rear passenger floorboard
of the Durango, so they had the truck impounded for further investigation. Altogether
they found eight shell casings on the floorboard of the Durango.
A few days later, on December 16, 2017, Mays returned to J.R.'s home and drove
in circles on her front lawn while honking his horn. He returned several hours later in a
different car, a black Dodge Charger. He got out of the car and confronted J.R. and her
boyfriend on the lawn. During the ensuing argument he brandished a gun before returning
to his car and driving off while firing shots into the air. When J.R.'s boyfriend returned
fire, Mays turned the car around and drove back down J.R.'s street, firing more shots at
J.R.'s home. When the police arrived, they found bullet holes in J.R.'s house and collected
several shell casings in the street and sidewalk and bullet fragments inside the house.
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J.R. and the rest of the household spent the night at her mother's house next door.
In the early morning hours that followed, more shots were fired which struck J.R.'s
mother's house and cars parked in the driveway. The police found more shell casings in
the street. In a telephone conversation while the police were still investigating this most
recent shooting, Mays told J.R. that he was only shooting at her car and that he wanted to
see their daughter.
Two days later, on December 19, 2017, Mays called J.R. again and threatened to
come back and shoot them.
Ballistic analyses established that the shell casings recovered from the Dodge
Durango on December 12 and those found on the street outside J.R.'s house on December
16 and 17 were fired from the same gun.
The State charged Mays with two counts of criminal discharge of a firearm at an
occupied building, three counts of stalking, three counts of criminal possession of a
weapon, three counts of criminal damage to property, three counts of aggravated
endangering a child, aggravated assault, and eluding a police officer.
Prior to trial the State moved under K.S.A. 60-455 for the admission of evidence
regarding Mays' prior acts of domestic violence against J.R. in order to prove his motive,
intent, identity, and course of conduct. The court granted the State's motion.
At trial Mays was convicted on all charges except the charge of eluding a police
officer.
Mays moved for a new trial, claiming his trial counsel had provided ineffective
assistance. Following a hearing on the motion the court denied relief and sentenced Mays
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to prison.
Mays appeals, arguing that (1) the evidence supporting his conviction for the
December 12, 2017, shooting was insufficient; (2) the district court erred in admitting
K.S.A. 60-455 evidence at trial; and (3) the district court erred in not granting him a new
trial based on ineffective assistance of counsel.
The Sufficiency of the Evidence Regarding the December 12, 2017 Shooting
In considering this claim we review the record in the light favoring the State, the
prevailing party, to determine whether a rational juror could have found Mays guilty
beyond a reasonable doubt of the charges related to this shooting. In doing so we do not
reweigh evidence, resolve evidentiary conflicts, or redetermine the credibility of the
witnesses at trial. See State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
Circumstantial evidence may be sufficient to support a verdict for even the gravest
offense so long as "it permits the factfinder to draw a reasonable inference regarding the
fact(s) in issue." State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017); State v.
McClelland, 301 Kan. 815, 820, 347 P.3d 211 (2015).
Mays argues that the evidence was insufficient to identify him as the shooter on
the night of December 12, 2017. He relies on the evidence that no one saw the driver, no
license plate could be seen on the security footage, there were different descriptions of
the color of the Durango, and the impounded Durango was not registered to him.
In our review we examine the evidence in the light favoring the State. We do not
weigh that evidence against the evidence Mays now cites. That was a matter for the jury.
See Chandler, 307 Kan. at 668.
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Here, the jury had before it evidence that J.R.'s mother's security camera next door
recorded a Dodge Durango driving past at the time the shooting occurred. The vehicle
closely resembled Mays' car. At the house owned by Mays' mother the police found a
Dodge Durango which had shell casings on the floorboard which matched the casings left
at the scene of Mays' later drive-by shootings. Finally, soon after the initial shooting J.R.
received a threatening text which she attributed to Mays. The message clearly implied
that Mays had been the shooter and threatened that another shooting was to follow. This
circumstantial evidence supports Mays' conviction for the crimes arising from the
December 12, 2017, shooting. From this evidence the jury could reasonably infer that
Mays was the shooter. There was substantial competent evidence from which the jury
could conclude that Mays was the shooter on the night of December 12, 2017.
The Admission of K.S.A. 60-455 Evidence at Trial
Mays contends the district court erred in admitting evidence concerning his history
of domestic violence against J.R. He does not claim this evidence was irrelevant. Rather,
his only claim is that its prejudicial effect outweighed its probative value.
In considering this claim we apply the abuse of discretion standard. K.S.A. 60-
445; State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013); see State v. Coones,
301 Kan. 64, 78, 339 P.3d 375 (2014). Judicial action constitutes an abuse of discretion if
no reasonable person would take the view adopted by the trial court, or if the trial court's
action is based on an error of fact or law. State v. Marshall, 303 Kan. 438, 445, 362 P.3d
587 (2015). Mays does not assert any claim that the district court committed an error of
fact or law in admitting this evidence. So the issue turns on whether no reasonable judge
would have admitted this evidence at trial under the circumstances presented.
In cases like this, evidence of prior bad acts is "inadmissible to prove such person's
disposition to commit crime or civil wrong." K.S.A. 2019 Supp. 60-455(a). But this type
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of evidence "'is admissible when relevant to prove . . . motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.' K.S.A. 2019
Supp. 60-455(b)." State v. Gray, 311 Kan. 164, 171, 459 P.3d 165 (2020). Here, the
district court admitted the evidence of Mays' prior bad acts to show motive, identity, and
the course of conduct between him and J.R. Mays does not contend that the evidence of
his prior bad acts was irrelevant as not tending to prove motive, identity, and the course
of conduct between him and J.R.
The K.S.A. 60-455 evidence admitted through J.R.'s testimony consisted of the
following:
• While they were married, Mays pointed a gun at J.R.'s her head during an
argument;
• Mays broke into her home when she left him after the birth of their daughter and
on another occasion broke down her front door;
• Mays had previously threatened to kill her;
• Mays had rammed a truck at her mother's house when he believed she was seeing
another man;
• Mays antagonized her at work while she was talking to a male co-worker and shot
a gun in the air during the confrontation;
• Mays violated the protection from abuse order and beat her and chased her down
her street when he found out that she had been texting another man.
The district court instructed the jury that this evidence could "be considered solely as
evidence of [Mays'] motive, identity, and relationship of continuing course of conduct
between [him and J.R.]." We presume that the jurors followed this limiting instruction.
See Gray, 311 Kan. at 172; State v. Seba, 305 Kan. 185, 204, 380 P.3d 209 (2016) (citing
supporting cases). Mays presents no evidence with which to challenge this presumption.
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Thus, the jury did not use this evidence to conclude that because Mays was a bad actor
before, he must have committed the crimes of which he now stands accused.
The K.S.A. 60-455 evidence was certainly prejudicial. That was the whole point of
the State offering it, along with all the other evidence the State offered at trial. The issue
is whether its prejudicial effect outweighed its probative value. Mays fails to convince us
that it did and that no reasonable judge would have admitted this evidence at trial.
Accordingly, we conclude that the district court did not abuse its discretion in admitting
this evidence.
Ineffective Assistance of Trial Counsel
Mays contends the district court erred in denying his motion for new trial based on
ineffective assistance of counsel. He argues that his trial counsel, David Patrzykont, was
ineffective in (1) failing to spend sufficient time preparing for trial, (2) failing to provide
him a copy of the transcript of the preliminary hearing, and (3) failing to subpoena
witnesses in order to present an alibi defense. Mays and Patrzykont were the only
witnesses called to testify at the hearing on Mays' motion.
We review the district court's decision denying relief on Mays' motion for a new
trial for abuse of the court's discretion. See State v. Fulton, 292 Kan. 642, 648, 256 P.3d
838 (2011). We refer the reader to the section above for a description of what constitutes
an abuse of discretion.
Mays' burden in pursuing this claim is twofold. First, he must establish that his
counsel's performance was constitutionally deficient—that is, that counsel's performance
was less than that guaranteed by the Sixth Amendment to the United States Constitution.
Second, he must establish that his counsel's deficient performance prejudiced him by
depriving him of a fair trial, i.e., that there is a reasonable probability the jury would have
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reached a different result absent his counsel's deficient performance. See State v. Salary,
309 Kan. 479, 483, 437 P.3d 953 (2019).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential to counsel's decisions and actions and requires the court to
consider the totality of the evidence. In our review we presume that counsel's conduct fell
within the broad range of reasonable professional judgment. State v. Kelly, 298 Kan. 965,
970, 318 P.3d 987 (2014).
Mays' first claim is that his trial counsel, David Patrzykont, failed to spend enough
time preparing the case for trial. At the hearing on Mays' motion, Patrzykont testified—
and jail records confirmed—that he met with Mays on three occasions. He testified that
on each visit he discussed with Mays potential defenses, potential witnesses, and the
evidence against Mays. He reviewed with Mays all the discovery in the case, investigated
all the potentially exculpatory evidence Mays informed him of, and filed several pretrial
motions.
Mays makes note of the fact that this was only Patrzykont's third jury trial. We
examine a lawyer's performance not by how long the lawyer has been trying cases, but
how the lawyer performs in preparing and trying the case. There is no presumption of a
failure to provide effective assistance in favor of a client who is represented by a young
lawyer. The clients of a young lawyer trying his or her first few cases do not get an
automatic new-trial mulligan following their convictions.
Next, Mays claims that Patrzykont did not provide him with a transcript of the
preliminary hearing. But Patrzykont testified at the hearing that when he visited with
Mays in order to prepare his defense he reviewed the transcript of the preliminary hearing
with Mays. Obviously, the district court believed Patrzykont rather than Mays. We do not
substitute our view over that of the district court on matters of credibility such as here.
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For his third claim, Mays asserts that Patrzykont failed to subpoena witnesses in
order to present an alibi defense. Mays testified at the hearing that he provided names and
phone numbers of his mother and sister who would provide him an alibi for the nights of
each shooting, and that Patrzykont promised to investigate the potential for presenting an
alibi defense. But Patrzykont testified that Mays never informed him of any potential
alibi, nor did Mays provide him with any witnesses to contact about it. But he did
communicate with Mays' sister and mother to investigate any possible defenses. While
Mays' sister had no information about an alibi, she provided a text message that
suggested that Mays' was lured to J.R.'s house. But Patrzykont determined that testimony
about this text would be inconsistent with Mays' planned defense: that he was never
present at J.R.'s house during the shootings. Under the circumstances, his decision not to
present that evidence at trial was a reasonable and informed strategic decision. See State
v. Cheatham, 296 Kan 417, 437, 292 P.3d 318 (2013); Rowland v. State, 289 Kan. 1076,
1083-84, 219 P.3d 1212 (2009).
Finally, Mays fails to show any reasonable probability that, but for Patrzykont's
claimed deficient performance, the outcome of his trial would have been different. Mays
faced overwhelming evidence at trial. There was strong circumstantial evidence to
support Mays' convictions for the crimes arising from the December 12, 2017, shooting
and Mays does not contest his convictions arising from the other two shootings. Even if
Patrzykont had called Mays' sister or mother to testify, there is no evidence—aside from
Mays' own assertions—that any witness would have come forth with testimony that he
could not have committed these shootings.
We conclude that the district court did not abuse its discretion in denying Mays'
motion for a new trial based on his contention that Patrzykont provided ineffective
assistance in representing him.
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Affirmed.
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