Sunday, November 16, 2014

Statements obtained with poor translation are involuntary and hearsay

Branden A. Bell and Sarah G. Hess won in State v. Fernandez-Torres, No. 110,645 (Kan. App. Oct. 24, 2014) affirming Judge Kittel's suppression order in a Douglas County aggravated indecent liberties prosecution. 

Mr. Fernandez-Torres was not in custody and had received at least some (albeit somewhat unclear) Miranda warning, so the only issue was the voluntariness of his incriminating statements obtained when an officer was being used as a Spanish-translator during an interrogation.  The district court found that the statements were not the product of Mr. Fernandez-Torres free and independent will.  The COA held that evidence supported that finding:
The district court was particularly troubled by the last two enumerated factors: the fairness of the interrogation and Fernandez' fluency in English. We share that concern. In this case, the two factors are closely related, so we discuss them together.
Fluency in English typically comes into play when a suspect is literate in some other language but is interrogated in English.  Illustrating the seamlessness of the generically labeled factors, fluency would also be implicated if a suspect knew only English but his or her mental incapacity substantially impaired his or her ability to communicate. That situation might also bear on mental condition and, possibly, intellect. This case presents a variant because Brixius sought out a translator, so the interrogation could be conducted in Spanish—Fernandez' primary language, although Fernandez understands some spoken English. 
To be plain about it, Marino lacked the bilingual capacity and the training to function effectively as a translator in an extended interrogation about a sex crime against a child. The two experts agreed that Marino mistranslated both questions and answers and sometimes substantially paraphrased what was being said. The district court's expressed concern about whether Brixius and Fernandez were fully communicating in an effective way finds sufficient support in the record evidence.
 . . . .
Brixius' interrogation approach effectively informed Fernandez both that the police had irrefutable scientific evidence that he had touched A.L.G.'s vagina and that if he had done so only for a second his actions were "okay" and could be dealt with. The underlying message to Fernandez was this: We have overwhelming evidence against you, but if you tell us you did it just briefly, nothing much will happen to you. Brixius maneuvered Fernandez into a situation in which yielding to the suggestion would seem to carry a material benefit, though quite the reverse was true. An unwary or pliable subject—Fernandez, based on the district court's findings, fit that bill—could be induced to accede to the suggested version of events because it looked to be convenient, compliant, and advantageous. In that situation, a suspect may no longer be especially concerned about falsity of the statement. The interrogation strategy lures the subject in, snares him or her with representations about the strength of the evidence (that may or may not have any basis in fact), and then offers what appears to be a way out through admissions deliberately and incorrectly cast as significantly less legally and morally blameworthy than alternative explanations of the evidence.
. . . .
In this case, looking at the whole of the circumstances, we conclude, as did the district court, that the inculpatory statements Fernandez made to Brixius were sufficiently tainted by the interrogation process and Fernandez' vulnerability to be something less than freely given.
The COA also agreed that, because the district court could properly conclude that the statements were likely false, the statements were inadmissible hearsay under K.S.A. 60-460(f)(2)(B).

[Update: the state did not file a PR and the mandate issued on December 1, 2014.]

Saturday, November 15, 2014

Incriminating nature of Q-tips not apparent

Rick Kittel won in State v. Rice, No. 110,396 (Kan. App. Oct. 24, 2014)(unpublished), obtaining a suppression order in a Lyon County drug prosecution.  The case involved the seizure of some Q-tips seen in plain view after officers were given consent to enter an Emporia apartment as part of a DCF home check.  After the Q-tips tested positive for methamphetamine, officers obtained a warrant and discovered other evidence of drugs and paraphernalia.  The COA agreed that the Q-tips and the evidence derived from the Q-tips should have been suppressed:
The seizure of the Q-tips in this case cannot be upheld under the plain-view exception because their incriminating nature was not apparent without conducting some further search of the Q-tips, i.e ., seizing the Q-tips for further observation and field testing.  According to Officer Sage, at a glance, the Q-tips did not appear to be discolored. It was not until they were actually seized that a discoloration was observed. And it was not until the Q-tips were tested that it was clear they were contaminated with methamphetamine. Because of these facts, the plain-view exception does not apply.
Because none of the exceptions to a warrantless search and seizure existed at the time Officer Sage seized the Q-tips and had them tested, the warrantless seizure of the Q-tips was unconstitutional. Thus, the Q-tips found on the coffee table were inadmissible at trial under the exclusionary rule.
[Update: the state did not file a PR and the mandate issued on December 1, 2014].]

Saturday, November 01, 2014

Defense attorneys must communicate with client regarding continuances

Michael P. Whalen won in Sola-Morales v. State, No. 104,288 (Kan. Oct. 24, 2014), obtaining an evidentiary hearing with regard to Mr. Sola-Morales' IAC claim.  Specifically, Mr. Sola-Morales claimed that his trial attorney had lied to him regarding continuances and that, as a result, he had lost his statutory right to a speedy trial.  The KSC recognized that for purposes of determining whether to have a hearing, the district court (and a reviewing court) have to assume that the allegations in the petition are true.  And when it did this, it determined that if trial counsel had lied to Mr. Sola-Morales regarding the continuance, he might have lost his ability to independently object to the continuances:
Here, because of trial counsel's alleged conduct, Sola-Morales appeared to have lost any opportunity to timely and "strenuously object" to continuances his counsel proposed and later received. See State v. Hines, [269 Kan. 698, 700 7 P.3d 1237 (2000)]. Sola-Morales also appeared to have lost any opportunity to "speak out against" the continuances, e.g., to advise the court of his opposition. See [State v. Arrocha, 30 Kan. App. 2d 120, 127, 39 P.3d 101 (2002)]. So he arguably may also have lost any opportunity to avail himself of the arguments, rationale, and holding in Hines, as corroborated in Arrocha. As Sola-Morales argues in his petition for review, counsel's lies—and other questionable conduct—seemingly prevented him from participating in his own defense.
The KSC recognizes that, under its own case law, communication with the client about continuances is necessary and, failure to communicate may result in a conflict of interest and ineffective assistance of counsel

December 2014 KSC docket

Here are the criminal cases on the KSC docket for December 8-12, 2014.  These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here)if you would like to watch any of these arguments.

December 8--Monday--a.m.

State v. William Barber, Jr., No. 106,911 (Cherokee)
Direct appeal (petition for review); Aggravated battery
Michelle A. Davis
  1. Improper admission of bad acts evidence
  2. Erroneous limiting instruction on bad acts evidence
  3. Improper closing argument
  4. Improper acceptance of verdict without confirming accuracy
State v. Michelle Bolze-Sann, No. 105,297 (Shawnee)
Direct appeal (petition for review); Involuntary manslaughter
Rick Kittel
  1. Insufficient evidence
  2. Failure to dismiss for failure to show mens rea
  3. Denial of right to be present and Public Trial in response to jury question
  4. Insufficient evidence of alternative means of involuntary manslaughter
  5. Failure to define "imminence"
  6. Failure to give instruction related to consideration of regulation
  7. Failure to grant mistrial after intimidation of witness
  8. Improper acceptance of verdict without confirming accuracy
State v. Mark Alexander, No. 107,410 (Shawnee)
Sentencing appeal (petition for review)
Christina M. Kerls
  1. Improper sentencing to DOC rather than placement at LSH
December 9--Tuesday--a.m.

State v. Ramon Rodriguez, No. 106,731 (Johnson)
DNA testing appeal (petition for review)
Michael J. Bartee
  1. Failure to make findings of fact and conclusions of law
  2. Failure to grant new trial based on new forensic DNA testing
State v. Daniel Parker, No. 111,044 (Riley)
Direct appeal; First-degree murder
Lydia Krebs (brief); Peter Maharry (argue)
  1. Improper closing argument
State v. Jason Brammer, No. 106,696 (Marshall)
Direct appeal (petition for review); DUI manslaughter
Corrine E. Johnson
  1. Insufficient evidence of alternative means
  2. Failure to instruct on proximate cause
  3. Erroneous lesser-included offense instructions
State v. Carl Vrabel, No. 108,930 (Johnson)
State appeal (petition for review)
Jonathan A. Bortnick
  1. Suppression of controlled buy by officer outside of jurisdiction
December 11--Thursday--a.m.

State v. Jerry Sellers, No. 109,080 (Harvey)
Direct appeal (petition for review); Agg indecent liberties
Michael P. Whalen
  1. Failure to grant motion for arrest of judgment
State v. Jerold Dunn, No. 106,586 (Labette)
Direct appeal (petition for review); Forgery/stalking
Rick Kittel
  1. Defective complaint (forgery)
  2. Insufficient evidence (stalking)
State v. Justin Dern, No. 106,406 (Pottawatomie)
Direct appeal (petition for review); Agg criminal sodomy
Heather R. Cessna
  1. Improper admission of prior bad act evidence
  2. Failure to suppress confession
  3. Insufficient evidence of alternative means
  4. Insufficient evidence
  5. Improper burden of proof instruction
December 12--Friday--a.m.

State v. Tommy James, No. 106,083 (Franklin)
Direct appeal (petition for review); Possession with intent
Randall L. Hodgkinson
  1. Improper search of cell phone
  2. Improper admission of text messages
  3. Improper admission of officer testimony regarding text messages
  4. Improper prosecutorial comment
  5. Insufficient evidence of intent to distribute
State v. Larry Overman, No. 105,504 (Cherokee)
Direct appeal (petition for review); Manufacture
Matthew J. Edge (brief); Joanna Labastida (argue)
  1. Failure to suppress evidence
State v. Cody Funk, No. 107,422 (Cloud)
Sentencing appeal (petition for review)
Gerald E. Wells
  1. Lifetime post-release is Cruel and Unusual

Friday, October 31, 2014

Hodgkinson inducted as Fellow in presigious appellate group

Randall Hodgkinson, creator and co-author of this blog, has been inducted as a Fellow in the American Academy of Appellate Lawyers (AAAL).  As explained here, induction into the AAAL is by invitation only and is limited to 500 members in the United States.  Academy Fellows must have been in appellate practice for at least 15 years, and only lawyers with a reputation for the highest excellence in appellate work and unblemished integrity are invited to membership. 

Randall is a Visiting Assistant Professor of Law at Washburn Law School, primarily teaching Criminal Appellate Advocacy.  He has been a teacher and mentor to many lawyers (including this blogger during my time at the ADO).  And this type of recognition and praise is certainly well deserved. 

Saturday, October 25, 2014

Failure to instruct on defense and improper argument combine to require new trial

Washburn intern Jessica Dotter and I won in State v. Ortega, No. 106,210 (Kan. Oct. 3, 2014), obtaining a new trial in a Finney County attempted aggravated interference with parental custody prosecution stemming from Ms. Ortega's attempt to take custody of her children from a school after SRS had taken custody of them.  The COA had already ruled that the district court erred by failing to give instructions on mistake of fact (i.e. Ms. Ortega did not know that she could not take custody of her own children), by failing to give a lesser-included offense instruction on attempted interference with parental custody, and for improper argument related to Ms. Ortega's mistake of fact.  A majority of the COA had held that these errors were harmless.  The KSC agreed with Chief Judge Malone, who had dissented, and held that a new trial was required.  In particular, because the instructions entirely failed to inform the jury regarding the effect of a mistake of fact, the jury was left without guidance, notwithstanding the defense ability to present evidence and argue the point:
Significantly, nothing in the trial informed the jury that Ortega's mistaken belief could be a valid defense. Contrary to the panel's conclusions and State's arguments, the elements instruction for attempted aggravated interference with parental custody did not provide this information—it simply instructed that intent was an element. Further, defense counsel's ability to present evidence and argue regarding the defense provided only part of what the jury needed. Without an instruction, the jury had no directions from the court about how to consider the information. Consequently, the only direction the jury received was misdirection in the form of the prosecutor's statement that the lack of notice was irrelevant and did not matter.

Because of the compounding effect of the errors in this case, the KSC applied a constitutional harmless error test and held that the state failed to prove beyond a reasonable doubt that the errors were harmless.

[Update: on remand, the prosecutor elected to not retry Ms. Ortega on the charge of attempted aggravated interference with parental custody and dismissed that charge.]

Sunday, October 12, 2014

Texas conviction for evading arrest is a nonperson offense

Samuel Schirer won in State v. Long, No. 110,852 (Kan. App. Sept. 19, 2014)(unpublished), obtaining a new sentencing hearing in a Shawnee County aggravated battery prosecution.  The only issue was the proper person/nonperson classification for a Texas conviction for evading arrest.  The answer to the question depended on which subsection of the Kansas offense of fleeing and eluding was most comparable:
As Long contends, K.S.A. 8–1568(a) covers the same criminal conduct as Tex. Penal Code Ann. § 38.04(b)(1) (Vernon 2001); both statutes prohibit a person from using a motor vehicle to flee from or evade a known police officer who is attempting to detain that person. A violation of K.S.A. 8–1568(b) requires additional conduct that is not included in the Texas statute.
The court looks to the most comparable Kansas offense to determine whether the conviction is classified as a person or nonperson crime.  Therefore, although K.S.A. 8–1568(b) may cover similar conduct as the Texas statute, K.S.A. 8–1568(a) is more comparable as it does not require additional actions beyond those required by the Texas statute. Accordingly, the district court should have classified Long's Texas conviction as a nonperson offense since a first conviction of K.S.A. 8–1568(a) is a nonperson offense.
[Update: the state did not file a PR and the mandate issued on October 23, 2014.]

Saturday, October 11, 2014

Evidence of later homicide is improper bad acts evidence

Joseph A. Desch won in State v. Macomber, No. 108,301 (Kan. App. Sept. 19, 2014)(unpublished), obtaining a new trial in a Shawnee County second-degree murder prosecution.  Mr. Macomber was accused of several crimes in three separate prosecutions.  In one prosecution, a jury had convicted him of attempted first-degree murder, criminal possession of a firearm, and other charges in Marshall County.   In another Marshall County prosecution, a jury convicted Mr. Macomber of kidnapping, aggravated burglary, criminal possession of a firearm, and other charges.  All of these offenses were alleged to have happened after Mr. Macomber fled from crimes committed in Shawnee County, the instant appeal.  In a third trial in Shawnee County, the state charged Mr. Macomber with first-degree murder and criminal possession of a firearm; a jury convicted Mr. Macomber of criminal possession of a firearm and second-degree murder, given as a lesser.

On appeal, Mr. Macomber claimed the Shawnee County criminal possession of a firearm prosecution violated the Double Jeopardy Clause.  The COA agreed:
Macomber's possession of a firearm consists of a unitary course of conduct, and because the legislature intended that the minimum unit of prosecution for violating K.S.A. 21–4204 is a single continuous act of possession, Macomber was subject to double jeopardy in this case and his conviction for criminal possession a firearm must be reversed.
During trial, the district court admitted evidence of the Marshall County homicide hours after the Shawnee County incident ostensibly to show the gun  in question worked.   The COA also agreed with Mr. Macomber that such evidence was irrelevant:
Here, we have no difficulty concluding that virtually none of the evidence presented to the jury concerning the encounter between Macomber and Salcedo was relevant to proving the particular disputed material fact—i.e., whether Macomber's gun was susceptible to an accidental discharge. Salcedo's professional history, Macomber's speeding, the ensuing chase, Macomber's aggressive assault and eventual shooting of Salcedo in the back, the damaged bulletproof vest, and Salcedo's lengthy recovery—none of this has any bearing whatsoever on the mechanical state of Macomber's gun.
Even if there was some vestigial relevance of the bare fact that the gun was discharged properly within a few hours of the Lofton shooting, when it is shorn of the irrelevant context, the evidentiary value of that fact approaches zero. As such, the evidence had virtually no probative value. On the other hand, it was highly prejudicial in character. The State presented evidence that Macomber pointed a gun at the head of a sympathetic young police officer (who thought he might die), forced him onto the ground, and shot the officer twice, once in the back. As such, the district court abused its discretion when it determined that the probative value of the evidence outweighed its potential for undue prejudice.
The COA held that because of the nature of the evidence and the repeated emphasis on that evidence, the error was not harmless and reversed the second-degree murder conviction and remanded for a new trial.

[Update: the state did not file a PR and the mandate issued on October 23, 2014.]

There's no place like home!

Just a quick post to note that Kansas Defender Carl Folsom returned to Kansas at the beginning of October.  Carl has spent a couple of years in the Muskogee office of the federal public defender office, first as a writing and research specialist and later as an assistant public defender.  Carl has taken a position in the Topeka office of the federal public defender office, so he'll be doing the same work, but back in Kansas, where he belongs!  Welcome back, Carl!