Kristofer J. Wright, Appellant, v. State of Kansas, Appellee. (2026)

MEMORANDUM OPINION

Kristopher J. Wright appeals the district court's denial of his K.S.A. 60-1507 motion following an evidentiary hearing. Wright makes two basic claims on appeal. First, Wright claims he was denied his right to maintain his innocence because his trial counsel allegedly pursued a guilt-based defense without his consent, resulting in structural error. Second, Wright claims he received ineffective assistance of counsel because his trial counsel failed to investigate or present an alibi defense. After thoroughly reviewing the record and briefs, we affirm the district court's judgment.

Factual and Procedural Background

In the early morning hours of March 31, 2013, Jordan Turner was shot and killed in rural Sedgwick County. A little over a month later, Turner's body was found by a farmer in a cotton field. Based on an anonymous tip, police arrested Wright, Emma Spencer, Eric Jackson, and Ebony Nguyen in connection with the murder. The tipster told police that the group “had robbed Jordan, that there had been a fight, and that he was shot.” Ballistics testing would later show that the bullets used in Turner's murder matched a gun that was later found in Wright's possession.

On May 7, 2013, the State charged Wright, Jackson, and Nguyen with first-degree premeditated murder, but Spencer was not charged. The district court appointed counsel for Wright and ordered no contact between Wright and Spencer because of her role as an uncharged coconspirator. Following a preliminary hearing, the district court bound Wright over for trial for first-degree premeditated murder and conspiracy to commit first-degree murder, and the State filed an amended information to include both charges.

At a pretrial hearing following the denial of Wright's motion to dismiss, Wright personally addressed the court and made clear he wanted to present an alibi defense at trial. Wright's initial appointed counsel was allowed to withdraw and the district court appointed a new lawyer, Steven Mank, who represented Wright through his trial. Due to Wright's desire to pursue an alibi defense and “out of an abundance of caution,” Mank filed a notice of alibi in the week before trial—the notice listed one witness, Mary Andrews, the mother of Wright's daughter. Mank told the district court that he did so to “to make sure that it was done and the proper notice had been filed, and whether we use it or not will kind of depend upon what happens during the course of the trial.”

The jury trial commenced in February 2014. In his opening statement, Mank professed Wright's innocence to the jury: “Kristofer Wright is not guilty of premeditated first-degree murder, nor is he guilty of conspiracy to commit murder.” Jackson testified against Wright in exchange for the State's agreement to drop the first-degree murder charge against him. He stated that he, Wright, Nguyen, and Spencer had been hanging out with Turner on the night of the murder. He explained that he and Wright had been high-school classmates of Turner's, and that Spencer and Nguyen were recent acquaintances, with whom he and Wright had become romantically involved. He added that Nguyen was a drug dealer. According to Jackson, the group had gone out to a nightclub and then drove around in Spencer's car, drinking and smoking marijuana.

At some point, Nguyen became convinced that Turner had previously robbed her by giving her fake cash in exchange for drugs. At first, Turner denied the accusation but later admitted having robbed Nguyen. At some point, the group pulled over at a park. Nguyen, Jackson, and Wright exited the car and discussed shooting Turner with Wright's gun. The group returned to the car and continued driving. Eventually, the group drove to an isolated dirt road and parked. Jackson asked Wright for his gun and he handed over the weapon. But as Jackson and Turner exited the car and Jackson turned the gun on Turner, Turner fought back and knocked Jackson unconscious.

From the point when Jackson was knocked out, the State relied on Spencer's testimony to fill in the details of the murder. Spencer explained that after Turner hit Jackson, she remained in the car and heard two gunshots. She recalled that she looked out the window and saw Wright chasing Turner into a field, with his gun raised. Spencer stated that she heard Wright shout, “[G]et on your knees before I shoot you again.” But when Turner complied, Wright fired two more shots. Spencer stated that Wright returned to the car after shooting Turner, helped her load the unconscious Jackson into the car, and they drove back to Wright's apartment. Spencer's testimony at trial contradicted her initial statement to police that Nguyen had been the one who shot Turner, a point that Mank made to the jury during cross-examination.

After the State rested, Wright did not call any witnesses or present any evidence, including the alleged alibi that Wright was with Andrews on the night of the murder. No record was made at trial as to why Wright did not present an alibi defense or whether Wright was dissatisfied with Mank's trial strategy not to present the defense. In his closing argument, Mank argued the State had not proven that Wright had been the individual who pulled the trigger: “I would submit to you that based upon what you heard over the last two days, you don't even know who fired the first two shots. Was it [Jackson]? Could have been. Was it [Wright]? Could have been.” He also asserted that the State had failed to show there was any premeditation and Wright could not be convicted of first-degree murder even if the jury believed he pulled the trigger. Mank reiterated that the jury should find Wright “not guilty of conspiracy to commit premeditated first-degree murder and not guilty of premeditated first-degree murder.”

The jury found Wright guilty of first-degree murder and conspiracy to commit murder in the first degree. The district court sentenced him to life imprisonment without parole eligibility for 25 years, consecutive to 123 months in prison.

Wright appealed to the Kansas Supreme Court, raising five issues, including that his right to be present was violated when his initial counsel obtained a continuance when he was not present. State v. Wright, 305 Kan. 1176, 1176-77, 390 P.3d 899 (2017). The Supreme Court remanded for an evidentiary hearing under State v. Van Cleave, 239 Kan. 117, 120-21, 716 P.2d 580 (1986), to establish a record whether a violation of Wright's right to be present at a continuance hearing caused reversible error. Wright, 305 Kan. 1180-81. Following the remand where a factual record was established, the Supreme Court determined no reversible error resulted from the violation of Wright's right to be present, and it concluded Wright was not entitled to relief on any of his other claims. State v. Wright, 307 Kan. 449, 450, 410 P.3d 893 (2018).

K.S.A. 60-1507 proceedings

On February 4, 2019, following the denial of his direct appeal, Wright filed a pro se motion under K.S.A. 60-1507. In the motion, Wright raised 10 issues, including several claims that he received ineffective assistance of both trial counsel and appellate counsel—the only claims relevant to this appeal involve Wright's claims that Mank conceded his guilt to the jury and failed to investigate or present his alibi witnesses. Three-and-a-half years later, the State responded to Wright's motion. The district court summarily denied three of Wright's claims and ordered an evidentiary hearing to decide his remaining claims. The evidentiary hearing took place in four parts over five months. By the time of the hearing, it had been almost 10 years since Wright's trial.

At the first hearing, Wright's mother testified about his alleged alibi. Wright's mother testified that although she was in Arkansas on the night of the murder, she spoke to Wright who was with his pregnant girlfriend, Andrews, that evening. She recalled that she spoke to Wright again the following morning. She stated that she was never contacted by Mank or any investigator, but she did speak to Wright's first appointed attorney. Wright also testified, claiming that he had told Mank “from the very beginning that [he] was innocent and [he] wanted to maintain [his] innocence” and that he told Mank about his alibi. Wright asserted that Mank “basically made it impossible for [him] to maintain [his] innocence.” Wright asserted that Mank deliberately went against his wishes and ignored his request to present his mother and Andrews as alibi witnesses or investigate his claim. Wright also claimed that Mank's failure to call his alibi witnesses forced him not to take the stand himself and undermined his ability to maintain his innocence.

On the second day of the hearing, Wright called Andrews. She testified that she and Wright were living together and that Wright was with her on the night of the murder. Andrews testified that neither Mank nor his investigator ever contacted her to speak about Wright's alibi. Andrews stated that she had spoken to several police officers about Wright's whereabouts that night, but not Mank. She maintained that if she had been called to testify at the trial, she would have told the jury that Wright was with her the whole night that Turner was murdered. On cross-examination, Andrews conceded she was sleeping part of the night and could not confirm Wright was there while she slept.

Mank testified next and focused on two issues: the nature of his trial strategy and his investigation of Wright's alibi. Mank contended that his theory of defense was that the State did not prove beyond a reasonable doubt that Wright committed the murder, and even if it had, the State had not shown the act was premeditated. As for the alibi, Mank testified that his notes indicated that he and his investigator discussed both Wright's mother and Andrews as potential alibi witnesses. Mank stated that he did not personally investigate the witnesses but assumed his investigator had done so. Although he filed a notice of alibi before trial, Mank stated that, as part of his trial strategy, he decided not to use an alibi defense because “it didn't appear that it would pan out and so we elected not to proceed with it.” Mank was aware “[t]here was other evidence that indicated that [Wright] was [at the crime scene],” but he could not “recall the specifics of it.”

In response to Andrews’ testimony, the State informed the district court that had Andrews testified at trial, it would have introduced into evidence a recorded jail call between Wright and Spencer in which Wright had admitted being at the crime scene. The district court asked whether the State could produce the recording, and it agreed to do so.

Two months later, on the third day of the hearing, after the State had admitted the recorded jail phone call into evidence, the district court revealed that it had listened to the recording. In the call, Spencer repeatedly told Wright, “You know what happened,” and that “[t]he story didn't change.” Spencer again stated, “Everything that happened that night you know. You were there. The story did not change at all.” And Wright responded, “Yeah.” Wright testified again and conceded he had spoken with Spencer while in jail but claimed it was another inmate and not him speaking in the recording.

On the fourth day of the hearing, held two months later, the district court heard arguments from counsel and made detailed findings from the bench. The court explained that it had reviewed the trial transcripts and additional evidence that was presented during the K.S.A. 60-1507 proceedings. The district court noted that after listening to the jail calls, it believed Wright was the person speaking to Spencer and explained that it showed Wright was coaching her testimony by telling “Ms. Spencer to tell the authorities that Mr. Wright never got out of the car.” The district court stated the coaching from Wright was inconsistent with the alibi defense and commented that the recording would have been a major obstacle to using such a defense.

The district judge found that, contrary to Wright's claim, Mank did not pursue a guilt-based defense:

“I do not read anything in [Mank's closing argument] that says it is a guilt-based [defense]. As Mr. Mank said on the stand, his primary version of events was, there is no way the State can prove beyond a reasonable doubt that it was Mr. Wright who fired the shots.

“And secondarily, if the State has proved that, it shouldn't be murder for which he was facing trial, it should be some other lesser conviction. And that is wholly consistent with the argument that was made from the transcript that I just read and it is not impermissibly running a guilt-based [defense] as Mr. Wright suggests.”

As for Wright's ineffective assistance of counsel claim based on Mank's alleged failure to investigate and present the alibi witnesses, the district court found:

“[Andrews’] testimony that [Wright] was there the whole time is not credible, either because she was asleep or because she's lying or both. But a defense attorney armed with that phone call that completely contradicts this alibi [defense] and then choosing not to present the alibi defense, knowing that it is going to get blown up in front of the jury, that does not fall below any object measure [and is] probably a proven course of action.”

The district court addressed Wright's other claims not relevant to this appeal. Based on all of its findings, the district court denied Wright's K.S.A. 60-1507 motion. Wright timely appealed the district court's judgment.

Analysis

On appeal, Wright claims he was denied his right to maintain his innocence because Mank pursued a guilt-based defense without his consent, resulting in structural error. He makes a related claim that his rights to effective assistance of counsel and due process were violated when Mank ceded Wright's guilt to the jury. Wright also claims he received ineffective assistance of counsel because Mank failed to investigate or present his alibi defense. His other claims raised in district court but not briefed on appeal are deemed waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).

After a full evidentiary hearing on a K.S.A. 60-1507 motion, the district court must issue findings of fact and conclusions of law concerning all issues presented. Supreme Court Rule 183(j) (2026 Kan. S. Ct. R. at 242). An appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. Khalil-Alsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216 (2021).

Did Mank pursue a guilt-based defense without Wright's consent, resulting in structural error?

Wright argues that his right under the Sixth Amendment to the United States Constitution to declare and maintain his factual innocence was violated when Mank “told the jury [Wright] was guilty of the elements of second-degree murder” over Wright's express objection. Wright contends that Mank's pursuit of an allegedly guilt-based defense constituted a structural error mandating reversal of his convictions and sentence and that the district court erred by denying him relief on this claim. The State contends that Mank did not actually concede Wright's guilt to the jury. Alternatively, if this court finds that Mank pursued a guilt-based defense, the State asserts the record does not show that Wright sufficiently objected to Mank's trial strategy.

Wright relies on McCoy v. Louisiana, 584 U.S. 414, 420, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018), in which the United States Supreme Court held that a defendant's right to maintain their innocence under the Sixth Amendment is violated if defense counsel concedes guilt over “the defendant's intransigent and unambiguous objection.” Wright also cites an earlier decision from the Kansas Supreme Court, State v. Carter, 270 Kan. 426, Syl. ¶ 4, 14 P.3d 1138 (2000), which similarly holds that “imposing a guilt-based defense against defendant's wishes violated defendant's fundamental right to enter a plea of not guilty and deprived the defendant of effective assistance of counsel.”

In McCoy, a death-penalty case, the Supreme Court held that “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best [outcome].” 584 U.S. at 417. The McCoy Court explained that “it is the defendant's prerogative, not counsel's, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” 584 U.S. at 417-18. Thus, when it comes to defendant's right to maintain their innocence, “[b]ecause a client's autonomy, not counsel's competence, is in issue,” the typical Strickland test does not apply and the defendant need not prove prejudice. McCoy, 584 U.S. at 426; see Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Any “[v]iolation of a defendant's Sixth Amendment-secured autonomy” is a presumptively-prejudicial, structural error “not subject to harmless-error review.” McCoy, 584 U.S. at 427.

In reaching this ruling, the Supreme Court noted that “[t]he Sixth Amendment guarantees to each criminal defendant ‘the Assistance of Counsel for his defence.’ ” 584 U.S. at 421. But in receiving the assistance of counsel, “a defendant need not surrender control entirely to counsel.” 584 U.S. at 421. That said, the Court cautioned that a defendant's Sixth Amendment autonomy right does not encompass tactical decisions that have long been reserved for counsel. To that end, the Court explained:

“Trial management is the lawyer's province: Counsel provides his or her assistance by making decisions such as ‘what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.’ Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal.

“Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category. [Citations omitted.]” 584 U.S. at 422.

In McCoy's case, his trial counsel ignored his express instructions to maintain his innocence, going so far as telling the jurors in his guilt-phase opening statement that it would be impossible for them to hear the prosecution's evidence and not find the defendant guilty. McCoy's counsel directly conceded that “ ‘my client committed three murders,’ ” reiterated in his closing argument that the defendant was guilty, and told the jury he was taking the “burden off of” the prosecution. 584 U.S. at 418-20. McCoy's counsel believed that admitting guilt was the best way to help McCoy avoid the death penalty. The Supreme Court noted that despite his trial counsel's strategy, McCoy “vociferously” maintained his innocence and “adamantly objected to any admission of guilt” and “opposed [his counsel's] assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court.” 584 U.S. at 417, 424.

To succeed on his claim, Wright must show that he expressly asserted that the objective of his defense was to maintain innocence and that Mank overrode that objective by conceding guilt. So to resolve Wright's claim, this court must answer two questions. First, did Wright expressly indicate that his desired defense objective was absolute innocence? Second, did Mank actually concede Wright's guilt to the jury? If the answer to either question is no, then Wright is not entitled to relief under McCoy.

Turning to the second of these questions first, Wright argues that the following statements in Mank's closing argument conceded his guilt:

“Now, what the State said is, you know what, if they didn't plan it ahead of time, those second two shots can be premeditation. Well, and I suppose under law they can be, but in this case they're not, because he just saw his roommate get the living daylights knocked out of him by Jordan Turner, ․ There was no premeditation. There was no conspiracy. There was no plan. It was an intentional act. I don't think there is any question about that. But was it premeditated? No. No.”

․

“He chased him down and shot him, in anger, intentionally, but not premeditated.”

․

“Did they kill him with premeditation? The answer is, no, they didn't. Was it an intentional act? I think if ․ you pull the trigger, it's intentional, but when there is ten seconds that passed from the time somebody has their face slammed into the road to the time the last two shots are fired, that doesn't show or prove premeditation.

“So I'm going to ask that you find him not guilty of conspiracy to commit premeditation first-degree murder and not guilty of premeditated first-degree murder.” (Emphases added.)

Wright quotes these statements outside the context in which they were made. A fair reading of these statements with the rest of Mank's argument shows that they were not a concession of guilt but a summary of the State's case against Wright. Mank presented an alternative argument that the State had failed to prove Wright was shooter, and even had it done so, the State had failed to prove premeditation.

At the start of Mank's closing argument, he summarized the evidence the State had presented and then asserted, “Now, I would submit to you that based upon what you heard over the last two days, you don't even know who fired the first two shots. Was it [Jackson]? Could have been. Was it [Wright]? Could have been.” Mank was highlighting that the State had presented no concrete testimony that Wright was the shooter and that Spencer's testimony was not conclusive or credible. While Mank agreed the State's evidence showed the shooting was, at most, an intentional act, the thrust of his argument was that the State had not shown anything to support that the murder was premeditated, even if the jury believed Wright pulled the trigger. Mank's argument cannot be fairly construed as a concession that Wright was guilty. In fact, he closed his argument by stating, “I'm going to ask that you find [Wright] not guilty of conspiracy to commit premeditated first-degree murder and not guilty of premeditated first-degree murder.” Mank did not abandon Wright's position of innocence. It would make no sense for Mank to ask the jury to find Wright not guilty if he was pursuing a guilt-based defense.

When reviewing the trial transcript in context, Mank did not present the jury with a defense that amounted to a concession of guilt. He argued the jury should find his client not guilty of first-degree premediated murder and conspiracy to commit murder because it was not clear that Wright pulled the trigger. Alternatively, he argued that even if the jury believed that Wright was the shooter, there was insufficient evidence to support premeditation. Because Mank did not concede Wright's guilt to the jury, McCoy is inapplicable and there was no Sixth Amendment violation.

As a separate related issue, Wright claims his rights to effective assistance of counsel and due process were violated when Mank ceded Wright's guilt to the jury. In his reply brief, Wright clarifies that this claim is not based on the Strickland standard for ineffective assistance of counsel, 466 U.S. at 694, but results in structural error. In any event, this claim fails for the same reason Wright's first claim fails: The record shows that Mank presented alternative defenses but never ceded Wright's guilt to the jury.

Did Wright receive ineffective assistance of counsel because his trial counsel failed to investigate or present an alibi defense?

Next, Wright claims he received ineffective assistance of counsel because Mank failed to investigate or present an alibi defense. He argues that the district court's finding that Mank was not deficient for failing to investigate his desired alibi witnesses is not supported by substantial competent evidence. The State argues that the district court appropriately denied Wright relief on this claim because there is evidence to support that Mank sufficiently investigated the alibi defense and because Mank's decision not to pursue the defense was reasonable under the circumstances.

“Claims of ineffective assistance of trial counsel are analyzed under the two-prong test articulated in Strickland [466 U.S. at 694], and adopted by the Kansas Supreme Court in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first prong, the defendant must show that defense counsel's performance was deficient. If successful, the court moves to the second prong and determines whether there is a reasonable probability that, absent defense counsel's unprofessional errors, the result would have been different.

“To establish deficient performance under the first prong, the defendant must show that defense counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential. A fair assessment of counsel's performance requires that every effort to be made to eliminate the distorting effects of hindsight, reconstruct the circumstances surrounding the challenged conduct, and evaluate the conduct from counsel's perspective at the time. A court considering a claim of ineffective assistance of counsel must strongly presume that defense counsel's conduct fell within the wide range of reasonable professional assistance; that is, the defendant must overcome the strong presumption that, under the circumstances, counsel's action might be considered sound trial strategy.

“Under the second prong, the defendant must show that defense counsel's deficient performance was prejudicial. To establish prejudice, the defendant must show with reasonable probability that the deficient performance affected the outcome of the proceedings, based on the totality of the evidence. A court hearing a claim of ineffective assistance of counsel must consider the totality of the evidence before the judge or jury. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations omitted.]” State v. James, 319 Kan. 178, 184-85, 553 P.3d 308 (2024).

The Kansas Supreme Court has long held that “strategic and tactical decisions,” including the decision of which witnesses to call, are within the “exclusive province of [defense counsel] after consultation with [their] client.” Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972). When trial counsel makes strategic decisions after making a thorough investigation, those decisions are “ ‘virtually unchallengeable.’ ” Fuller v. State, 303 Kan. 478, 488, 363 P.3d 373 (2015). Because defense counsel has “the duty to investigate completely the details of a defendant's alibi,” if a defendant claims to have an alibi, trial counsel's failure to investigate, contact witnesses, or provide notice of alibi witnesses constitutes deficient performance. LaPointe v. State, 42 Kan. App. 2d 522, 542, 214 P.3d 684 (2009). Counsel cannot avoid this responsibility by labeling an omission as part of their trial strategy. See Edgar v. State, 294 Kan. 828, 839, 283 P.3d 152 (2012).

In its findings from the bench, after hearing testimony from Wright, Mank, and both of Wright's desired alibi witnesses, the district court concluded that Wright's trial counsel's actions in not calling Wright's alibi witnesses was a matter of trial strategy and that Mank sufficiently investigated the potential alibi defense before deciding to forgo it. The district court also found that the jail phone call would have been a major obstacle to presenting an alibi defense, implying that the failure to assert the defense did not affect the outcome of the trial. In other words, the district court found that Wright failed to establish that his trial counsel's performance was deficient and also showed no prejudice.

Wright's argument that the district court erred is twofold: He argues (1) that the record does not support the district court's conclusion that Mank made any investigation into his desired alibi and (2) that the district court erred in concluding that there is no reasonable probability the outcome of the trial would have been different had the alibi witnesses testified. Turning to his first argument, Wright maintains that Mank failed to conduct a comprehensive investigation into his alibi and his failure to do so led to an unreasonable decision not to pursue the defense. The issue then is whether there is substantial competent evidence to support that Mank properly investigated the alibi witnesses before making his strategic decision not to call them at trial.

At the hearing, Mank explained that he and Wright discussed the potential of using an alibi, and Mank had notes that he also discussed the defense with his investigator. His notes reflected that his investigator told him about two potential alibi witnesses: Wright's mother and Andrews. When Mank was asked if he had done any personal investigation into the witnesses, he responded, “I honestly don't recall whether I did or did not. There are notes reflecting that [my investigator] and I discussed it. So I'm going to tell you I assume that he went out and talked to them and we discussed it.” Mank expressed surprise that Andrews claimed she never spoke to anyone in Mank's office about the alibi because his notes indicated he spent an hour speaking to his investigator about it.

Although Mank did not personally interview the alibi witnesses, the evidence showed that he investigated their potential testimony. Mank hired an investigator, knew what the witnesses would say, and filed a notice of alibi in case he decided to call the witnesses at trial. Mank did not offer a definitive reason why he chose not to present an alibi defense except to say that “it didn't appear that it would pan out.” But we know the State possessed the recorded jail call between Wright and Spencer in which Wright appeared to admit he was at the crime scene. We also know that Andrews conceded she was sleeping part of the night and could not confirm Wright was at home while she slept. Finally, we know that Mank was able to undermine the credibility of Spencer—the only witness who testified Wright was the shooter—by pointing out to the jury that she originally told the police that Nguyen had shot Turner. Considering the strengths and weaknesses of Wright's case, Mank's decision to forego the alibi defense appears reasonable.

There are three published opinions where our court found from the evidence that trial counsel's failure to investigate or call alibi witnesses amounted to deficient performance. In Shumway v. State, 48 Kan. App. 2d 490, 293 P.3d 772 (2013), Shumway was convicted of intentional second-degree murder based on testimony from witnesses with credibility problems and without any physical evidence tying Shumway to the crime. Shumway's attorney investigated two alibi witnesses who could have testified that Shumway was at home on the night of the murder, but counsel did not call either of them at trial despite the fact that “their primary defense strategy was a ‘theory of innocence,’ i.e., that Shumway did not commit the crime.” 48 Kan. App. 2d at 498. The attorney explained that he did not call the witnesses because they had failed to appear for a pretrial meeting and because one of the witnesses appeared to be acting strangely on the day of trial and was in a romantic relationship with the State's key witness. Shumway, 48 Kan. App. 2d at 499 (“Angela was believed to have been involved in a romantic relationship with her uncle John Finney, the State's key witness.”). Ultimately, the Shumway court found that counsel rendered deficient performance based on the decision not to call the alibi witnesses at trial, reasoning in part that there were no other witnesses who could have established Shumway's innocence. 48 Kan. App. 2d at 501-02.

In State v. James, 31 Kan. App. 2d 548, 67 P.3d 857 (2003), James was convicted of aiding and abetting aggravated burglary, aggravated robbery, and aggravated kidnapping. James told his trial counsel that his neighbor “could provide him with an alibi and asked him to speak with [the neighbor] and subpoena him. [Counsel] failed to do so, explaining that [the neighbor] did not want to testify.” 31 Kan. App. 2d at 553. Trial counsel did not know whether the neighbor “would have been unable to provide the alibi evidence claimed by [James]”—that is, he did not know whether or not the neighbor could have verified James’ potential alibi. 31 Kan. App. 2d at 553. Ultimately, James’ counsel did not make a strategic decision not to pursue an alibi defense—he based his decision only on his belief that the witness did not want to testify. Under these facts, the court concluded that counsel's failure to subpoena the neighbor as an alibi witness was “a serious error which prejudiced [James].” 31 Kan. App. 2d at 554.

In State v. Sanford, 24 Kan. App. 2d 518, 948 P.2d 1135 (1997), Sanford was convicted of aggravated robbery and kidnapping. He gave his trial counsel the names of several persons he said could provide an alibi, but counsel made only perfunctory attempts to contact the witnesses and decided not to pursue an alibi defense without talking to any of the witnesses. Trial counsel “testified that he did not see any reason to continue his search for alibi witnesses because it would only be a waste of resources.” 24 Kan. App. 2d at 523. Trial counsel did speak with Sanford's wife, who could have served as an alibi witness, but counsel decided not to call her as a witness because he thought she would perjure herself. Based on that record, the court found trial counsel's performance “was not reasonable under the circumstances.” 24 Kan. App. 2d at 523.

Shumway, James, and Sanford are all distinguishable from Wright's case. In each case there was little evidence, much less substantial competent evidence, to support a finding that counsel made a strategic decision not to investigate or call alibi witnesses. In contrast, there was substantial competent evidence to support the district court's finding that Mank investigated the alibi defense, through his investigator, and made a strategic and reasonable decision not to present an alibi defense at Wright's trial. We emphasize that in making its findings, the district court made credibility determinations of Wright, Andrews, and Mank. This court will not reweigh the evidence presented at the hearing or reassess the credibility of witnesses. State v. Johnson, 307 Kan. 436, 443, 410 P.3d 913 (2018). Because Wright failed to establish that Mank's performance was deficient, we need not address whether Wright established prejudice. Thus, we conclude from the record that Wright has failed to show the district court erred in denying his K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel.

Affirmed.

Per Curiam