Friday, December 26, 2014

Cannot dilute jury nullification

Lydia Krebs and Samuel Schirer won in State v. Smith-Parker, No. 105,918 (Kan. Dec. 24, 2014), obtaining a new trial in a Saline County first-degree murder prosecution.  The case actually involves two different incidents that were joined for one trial.  The KSC rejected sufficiency, alternative means and consolidation claims, but agreed with several claims.

First, the KSC held that the district court improperly excluded some defense evidence under the Confrontation Clause, which is pretty straightforward since the Confrontation Clause only protects accused persons.  The KSC also held that the proffered statements were not admitted for the truth of the matter asserted and thus were not hearsay.

Next, the KSC held that the district court erred when a juror was dismissed, ostensibly because of his inability to understand English, and an alternate juror was seated.  Instead of telling the jury to begin deliberations anew, the district court merely told the jury to continue deliberations.

After conviction, the district court received a letter from the dismissed juror stating that he was
 actually dismissed because he had voted for the defendant in the jury room and that the presiding juror's claim regarding inability to understand English was a pretext.  The KSC agreed that, at least the dismissed juror and the presiding juror should have been recalled:
N.B.'s unsolicited letter contradicted at least the impression left, if not deliberate misinformation imparted, by the presiding juror during trial and in a posttrial affidavit. Although N.B.'s voir dire responses may also have contributed to a context ripe for misunderstanding by the district judge, they did not resolve the contradiction between his later letter and the presiding juror's later representations. Indeed, we see no way the contradiction could have been resolved short of calling N.B. and the presiding juror back into the courtroom to testify live about events during deliberations. Their competing versions of those events could then be fully explored, their credibility fully evaluated, and a factual determination made as to whether any jury misconduct occurred. This was what the defense sought, and it was entitled to it. Failure to recall at least N.B. and the presiding juror was error.
Last, the KSC agreed that a reasonable doubt instruction that told the jury that if it did not have a reasonable doubt, "you will enter a verdict of guilty" improperly stated the law.  While the KSC reiterated that a jury need not be instructed regarding nullification, the court's instruction should not interfere with that right:
Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge's instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification.  Both the wording of the instruction at issue in Lovelace—"must"—and the wording at issue here—"will"—fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.
The KSC held that together these issues required a new trial:
The State's evidence against Smith-Parker cannot be characterized as overwhelming. The evidence of Smith-Parker's premeditation in the murder of Mack was purely circumstantial. The evidence of exactly how Letourneau came to be shot in the head was conflicting, far from conclusive. The district judge's erroneous exclusion of Yanik-Ducharme's testimony about Letourneau's statement prevented Smith-Parker from presenting one of the few pieces of evidence he had to corroborate at least one of his versions of the events.
In addition, the three other errors we have identified are serious. Each calls into question the fairness of the trial that Smith-Parker received. The instruction error and the failure to tell the jury to begin its deliberations anew with the alternate juror incorrectly informed the jury about how to pursue its deliberations. The failure to recall N.B. and the presiding juror to testify live prevented a full investigation of whether jury misconduct occurred.
This last issue is particularly interesting to me.  Regardless of the evidence, a jury can always acquit.  Instructions (and arguments) that dilute that right must be improper.  This holding may also have some implications with regard to analysis of lesser-included offense instruction requests.

Sunday, December 21, 2014

Counterfeit bills are not written in your own name

Washburn student intern Ashley Green and I won in State v. Greathouse, No. 110,344 (Kan. App. Nov. 26, 2014)(unpublished), reversing an Atchison County making a false writing conviction.  The state alleged that Mr. Greathouse attempted to use some counterfeit bills to pay bail for another person.  The case turns on the difference between forgery and making a false writing:
Our Supreme Court has summarized the elements of forgery as requiring that “(1) [the defendant] made a writing, (2) so it appeared to have been made by another, and (3) with the intent to defraud.” As such, the two crimes have been construed in such a way that forgery requires a writing in the name of another while making false information is a writing in one's own name or concerning oneself. This distinction has been the source of some confusion over the years.
The COA agreed that counterfeit bills are not made in one's own name:
Here, the facts alleged by the State put this case in the same category as the facts alleged in Rios and Gotti. Greathouse was accused of making or distributing counterfeit bills to bail someone out of jail. Like in Rios and Gotti, the counterfeit instruments did not contain information related to the defendant's own business or concerns, nor were they made in the writer's own name. The instruments were simply counterfeit legal tender. These facts would support a conviction for forgery. Because forgery and making false information are mutually exclusive crimes, the State failed to present sufficient evidence to support a conviction of making false information.
[Update: the state did not file a PR and the mandate issued on January 30, 2014.]

Sunday, December 14, 2014

Proof of prior violates Descamps

Patrick H. Dunn won in State v. Martinez, No. 110,186 (Kan. App. Nov. 21, 2014), obtaining a new sentencing hearing in a Sedgwick County failure to register prosecution.  The issue had to do with how to classify violations of Wichita city ordinance regarding failure to comply with bond conditions.  The district court had compared it to a state conviction for violation of a protective order.  The COA agreed that the offenses were comparable, but further held that such classification would violate Descamps (blogged about here):
Here, in order to avoid engaging in forbidden judicial factfinding, we must examine whether the elements of the prior offense at issue, Wichita Municipal Ordinance § 1.04.125, match the elements of the corresponding "generic" offense, K.S.A. 1996 Supp. 21-3843(a)(4). The State argues because the ordinance is a divisible one, the modified categorical approach applies. Martinez argues the ordinance is broader than the misdemeanor statute and the elements do not match. Martinez also argues another ordinance is much more analogous. 
We think it irrelevant that another ordinance may be more analogous to the misdemeanor statute in question. If the elements of the municipal ordinance match those in the misdemeanor statute, then Martinez' Sixth Amendment rights are satisfied and it matters not what another ordinance may state. When reviewing both, it would appear that although the municipal ordinance is broader, contained within the ordinance are elements which prohibit contact with a third person, appearing to match the elements contained in the statute and suggesting that the modified categorical approach is applicable. 
The operative language in the violation of a protective order statute, K.S.A. 1996 Supp. 21-3843(a)(4), "orders the person to refrain from having any direct or indirect contact with another person . . . ." In comparison, Wichita Municipal Ordinance § 1.04.125(1)(a) sets out alternative versions of the "Failure to Comply" crime under § 1.04.125(2). That is, the ordinance prohibits persons released from custody from knowingly violating or knowingly failing to comply with (a) "restrictions on [their] association (including no contact orders with the victim or others)" or (b) "place of abode." Alternative (a) matches the element in the misdemeanor statute, but alternative (b) does not. Therefore, in order to determine whether Martinez was convicted under alternative (a), we are permitted to examine in the record the appropriate extra-statutory materials. 
The COA concluded that in order to prove that the municipal conviction fell into the state statute, additional an improper judicial factfinding was required:
At sentencing, the prosecutor provided the court with documents relating to Martinez' three municipal convictions for failing to comply with bond restrictions. Significantly, we note the record reveals that Martinez had five other person misdemeanors which were converted for criminal history purposes; thus, only one of his convictions for failure to comply with bond restrictions needed to qualify as a person misdemeanor in order to place Martinez in criminal history category B. Our review of the documents in the record leaves us uncertain whether Martinez' 1997 failure to comply with bond restrictions involved prohibited third person contact; therefore, we must vacate the defendant's sentence and remand the matter to the district court for a further examination of the appropriate extra-statutory materials to explore this question.
[Update: the state did not file a PR and the mandate issued on December 29, 2014.]

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].]

Sunday, November 09, 2014

Fifty-seven year payoff plan for forgery restitution an abuse of discretion [NOT FINAL]

Reid T. Nelson won in State v. Herron, No. 110,047 (Kan. App. Oct. 24, 2014), obtaining a new restitution hearing in a Douglas County forgery case.  The only issue on appeal was whether the district court abused its discretion when it imposed a $6,864 restitution judgment.  The district court had questioned whether Ms. Herron could pay that amount of restitution, but deemed that, as a matter of law, it was unable to reduce or waive restitution upon a finding of inability to pay.  The COA majority disagreed:
Our court also has noted that "a defendant's ability to pay restitution is a relevant factor for a district court to consider in determining whether to order restitution and the proper amount."  That's consistent not only with Schulze, but also with Goeller, where the Kansas Supreme Court noted that it was the defendant's responsibility to come forward with evidence of his inability to pay. If a defendant's inability to pay wasn't intended to be a compelling circumstance that could justify excusing or reducing restitution payments, then the Supreme Court would not have explained that the defendant is responsible for introducing such evidence. If the ability to pay restitution didn't impact restitution, then the evidence Goeller was criticized for not introducing would not even have been relevant. 
We do not suggest that poverty alone is always a compelling circumstance that should relieve a defendant of the obligation to pay restitution, but poverty alone can justify a decision to not impose restitution or to reduce it. In assuming that it could not, the district court made an error of law and thus abused its discretion by not considering whether Herron's poverty made the amount of restitution she was ordered to pay unworkable.
The COA went on to analyze whether requiring the district court abused its discretion by holding that $6,864 restitution in this case was workable:
Herron's case is similar to Burke or Orcutt. Like in Burke, if Herron paid the $10 per month the State suggested, she would be making payments for 57 years—an inordinately long time compared to her 18-month probation. Herron was 33 years old at the time the court ordered restitution. While her probation could be extended (giving the court supervisory power over her until payments were made), it's not reasonable to keep someone under court supervision to make restitution payments for 57 years. By contrast, if Herron attempted to pay the restitution she owed during her 18-month probation, she would be paying $381.34 per month, which would constitute more than half of her total income—obviously an unworkable situation at her income level. 
The COA majority did not determine what would be workable, but simply held that the plan entered (requiring more than half of Ms. Herron's meager income) was an abuse of discretion.

[Update: the state filed a PR on November 20, 2014.]

Sunday, November 02, 2014

Public defender appointed as district judge

Here is the governor's press release announcing the appointment of Paul Hickman, Deputy Public Defender from the Salina Regional Public Defender's Office as district judge:
“I’d like to thank Paul for his willingness to serve his community in this capacity,” said Governor Brownback. “With his experience as both a prosecutor and a public defender, he will be an excellent asset to the 28th Judicial District.”
Congratulations and best wishes Paul!

[Here is coverage of Judge Hickman's investiture from the Salina Journal.]