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

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.

Friday, September 26, 2014

Pervasive Fifth Amendment violations support dismissal of grand jury indictment

James L. Eisenbrandt and Christina M. DiGirolamo, won in State v. Turner, No. 102,478 (Kan. Sept. 5, 2014), affirming Judge Lively's dismissal of a Wyandotte County indictment and prosecution for theft and presenting false claims stemming from a citizen-initiated grand jury proceeding.  Judge Lively dismissed the indictment after finding that the prosecutor improperly and repeatedly questioned Mr. Turner in the face of his repeated exercise of his privilege against self-incrimination, that the investigator improperly commented about Mr. Turner's exercise of his right, and that the investigator commented on an unrelated criminal matter.  The KSC agreed with Judge Lively.  The appellate case includes a primer on the constitutional privilege against self-incrimination.  It also includes a lot of information about grand jury practice (and contrasting inquisition practice). 
Granted, a grand jury does not determine the guilt or innocence of a defendant, like a petit jury, but the consequences of a grand jury indictment are serious. See K.S.A. 22-3011(3) ("Indictments found by the grand jury shall be presented by its presiding juror, in the jury's presence, to the court and shall be filed and remain as records of the court."). Moreover, the need to protect an accused individual's constitutional rights before factfinders who are not trained in the law and consequently do not know and understand those constitutional rights is precisely the same with a grand jury as it is with a petit jury.

The KSC concluded that the prosecutor's pervasive and repeated questioning in the face of invocation of the privilege and express commentary on that exercise violated the Fifth Amendment, even in the light of admonition from the district court.  The KSC concluded that targets of grand jury proceedings are entitled to due process and that introduction of extraneous matters violates due process:

[O]ur statutes contemplate that due process mandates that a Kansas grand jury should only issue an indictment based on legal evidence, rather than suspicion or conjecture.
As a result, the KSC agreed that dismissal of the indictment was an appropriate disposition in this case.  Importantly, the KSC held that the state has the burden of proving any constitutional grand jury defect harmless.  When applying a proper harmless error burden, the KSC affirmed the district court:
In sum, the only evidence supporting the indictment was Turner's unitemized bills, testimony from certain individuals who were unaware of the specific nature of work Turner did for BPU, and witnesses who refused to breach the attorney/client privilege in order to answer the grand jury's questions about what work was performed. Contrary to the Court of Appeals' belief, such equivocal nonproof testimony does not cure or trump the egregious errors visited upon these proceedings that polluted the process and denied fundamental fairness.
This may be more important in future Kansas cases with a more robust statutory grand jury procedure in use in some counties.

Searches incident to arrest from 2009 to 2011 probably violate statute

Gregory D. Bell won in State v. Julian, No. 105,695 (Kan. Sept. 5, 2014), upholding Judge Svaty's suppression order in a Rice County drug prosecution.  The case includes a nice primer on the law of searches incident to arrest.  This case turned on the former statute governing searches incident to arrest, which was repealed in its entirety effective July 1, 2011.  Because the search took place before that date, the statute applied.

The KSC observed that it has held that a 2006 amendment to K.S.A. 22-2501(c), which allowed for searches incident to arrest for evidence of "a" crime was facially unconstitutional after Arizona v. Gant in 2009.  As a result, the only constitutional purposes for a search incident to arrest pursuant to the statute after Gant was for protecting officer safety and preventing escape.  The search in Julian did not fall under those categories:
This was a warrantless search of a vehicle for evidence incident to arrest, conducted at a time when searches incident to arrest were governed in Kansas by statute, and the statute in effect at the time did not authorize searches for the purpose of discovering evidence. The search of Julian's vehicle was therefore illegal.

As a result, the KSC affirmed the suppression order.  The practical impact of this decision appears to be that from the time of the issuance of Gant (April 21, 2009) until the statute's repeal (July 1, 2011), any searches incident to arrest for the purposes of discovering evidence (which is most of them) were illegal and the fruits of those searches should be suppressed.

Saturday, September 20, 2014

Stegall appointed to Kansas Supreme Court

Here is a Topeka Capital-Journal article announcing that Governor Brownback has appointed Caleb Stegall to fill the vacancy on the Kansas Supreme Court created by Nancy Moritz' appointment to the Tenth Circuit.  Here is the governor's press release regarding the appointment.  Judge Stegall has been on the Kansas Court of Appeals since 2013, so we have not yet seen much of his judicial work to this point.  Judge Stegall's appointment to the Kansas Supreme Court will create a vacancy on the Kansas Court of Appeals as well, so we will see even more changes in the Kansas judiciary soon.

[Update: here is a Kansas Supreme Court press release announcing that Judge Stegall will be sworn in on the Kansas Supreme Court on December 5, 2014.]

Friday, September 19, 2014

Limited DUI lookback applies to all sentencing after July 1, 2011

Jay Norton won in State v. Reese, No. 106,703 (Kan. August 29, 2014), obtaining a new sentencing proceeding in a Johnson County DUI prosecution.  At issue was an amended DUI statute--effective July 1, 2011--which provides that the sentencing court is to take into account only those prior driving under the influence (DUI) convictions that occurred on or after July 1, 2001 for enhancement purposes.  Before this statute (and at the time of Mr. Reese's offense), Kansas statute provided for a lifetime lookback for enhancement purposes.  The question was whether that amended statute applied to all cases sentenced after July 1, 2011 (the effective date of the amended statute) or only to cases where the offense occurred after July 1, 2011.  The Kansas Supreme Court made a pretty exhaustive historical review of the DUI statutes in Kansas and adopted the former interpretation:
we find that K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into account prior DUI convictions occurring during the limited look-back period and determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Accordingly, a prospective application of the amended statute would be to apply its provisions to every DUI sentencing that occurs on or after July 1, 2011, the statute's effective date.
This appears to be pretty important--often the difference between a felony and a misdemeanor--for any persons who were sentenced for DUI after July 1, 2011.

Erratic driving and a plastic baggie do not make reasonable suspicion

Therese Marie Hartnett won in State v. Kala Jones, No. 106,605 (Kan. August 29, 2014), upholding Judge Quint's suppression order in a Finney County drug prosecution.  Judge Quint had suppressed evidence due to the pretextual nature of a stop.  The COA and the KSC agreed with the state that this was an improper basis for suppression, but also agreed with Ms. Jones that suppression was appropriate due to lack of reasonable suspicion to search.  The KSC agreed with the dissenting COA judge that it would be inappropriate to decide contested facts on appeal.  But the KSC agreed with the COA majority that it could decide the legal impact of uncontested facts on appeal and, when doing so, the record revealed a lack of reasonable suspicion:
Applying these principles to this case, as a matter of common sense, driving in an unusual travel pattern cannot by itself be a license to search a vehicle; if it was, the Fourth Amendment would offer no protection to a driver who is driving in an unfamiliar area and approaches an address from different directions in an attempt to spot a particular house number.
Adding the officer's observation of the clear, empty plastic baggie does not significantly add to the suspicion. Common sense suggests that if the bag had been used to package illegal substances, Jones or her companions would have hidden the bag along with its contents. There is no evidence of an attempt to do so before, during, or after the stop. Furthermore, as the Court of Appeals majority observed, there are a multitude of innocent uses for clear plastic bags and the presence of such a bag is not suspicious, at least by itself.
Granted, suspicion might arise if the corner of the baggie had been cut off in a manner often used for packaging illegal substances or the bag had been tied in a knot. Here, at one point in the officer's testimony before the district judge, he described what he observed as the corner of a baggie. When that description was challenged, however, the officer admitted he could not recall the specific appearance and could not say that it was just a corner. Instead, the officer continued to refer to the clear plastic baggie. Thus, all the record establishes is that there was a clear plastic baggie, an article commonly possessed by law abiding citizens.
Even when the totality of these circumstances is considered, we agree with the district judge that the officer acted on a hunch, not reasonable suspicion.
Therefore, the KSC affirmed Judge Quint's suppression order, albeit for a different legal reason.


Saturday, August 30, 2014

Violation of extended juvenile juridiction terms does not mandate adult sentence

Michael J. Bartee won in In re A.M.M.-H., No. 109,355 (Kan. Aug. 8, 2014), reversing the imposition of an adult sentence in a Johnson County extended juvenile jurisdiction prosecution.  The KSC confronted two questions:  (1) does violation of a conditional release contract imposed by KJCC equivalent of a violation of the juvenile sentence and (2) does such a violation require mandatory imposition of the adult sentence?  The KSC answered the first question in the affirmative but that answer led it to find that the statute should not be interpreted to require mandatory imposition of the adult sentence (as had been found by the COA in another case):
The first sentence of the governing statutory subsection is permissive. When an extended jurisdiction juvenile has violated a condition of his or her sentence, a district judge "may revoke" the stay without notice and "direct that the juvenile offender be immediately taken into custody and delivered to the secretary of corrections." Once notice of the allegations supporting revocation are served on the juvenile and the juvenile's attorney of record, the juvenile may challenge the allegations. If no challenge is asserted, the statute is silent. If a challenge is asserted, a hearing is held. After such a hearing, if the district judge finds by a preponderance of the evidence that the juvenile violated a condition of his or her sentence, then the punishment for the violation is no longer permissive. Rather, the district judge "shall revoke" the stay of the adult sentence originally pronounced unless the State and the defense agree to a modification of that sentence. Under the plain language of the statute, the preponderance finding triggers automatic termination of the extended jurisdiction of the juvenile court and endows the adult court with ongoing jurisdiction for any adult sanction other than prison.
In short, K.S.A. 2013 Supp. 38-2364(b) requires a mandatory execution of the adult sentence only if the juvenile has requested a hearing and the court has found a violation by a preponderance of the evidence. The statute does not specifically address the situation before us here, where the district judge apparently scheduled a hearing on the State's motion to revoke before the juvenile asserted any challenge to the allegations of violation. We hold that in such a situation, the district judge retains discretion to determine whether a particular violation warrants revocation of the stay of the adult sentence just as he or she does if no notice has been provided to the juvenile at all.

Because the district court thought it had to impose the adult sentence, the KSC remanded for reconsideration.

Saturday, August 16, 2014

Short list for KSC

Here is the press release announcing the three names forwarded from the Supreme Court Nominating Commission to the Governor to fill the vacancy on the Kansas Supreme Court created by the appointment of Nancy Moritz to the Tenth Circuit Court of Appeals.  The Commission nominated Court of Appeals Judges Karen Arnold-Burger, Caleb Stegall, and District Court Judge Merlin Wheeler.  The Governor has sixty days to act on this nomination.

Here is a Topeka Capital-Journal article reporting on the interviews for this position.