Sunday, January 17, 2016

February-March 2016 KSC docket

Here are the criminal cases on the KSC docket for February 29-March 3, 2016. 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.

February 29--Monday--a.m.

State v. Keith Ritz, No. 112,069 (Sedgwick)
Direct appeal; felony murder
Heather R. Cessna
  • Failure to sever charges
  • Failure to give lesser-included offense instructions
State v. Javier Rizo, No. 112,824 (Sedgwick)
Direct appeal; felony murder
Sarah Ellen Johnson
  • Improper jury trial waiver
  • Failure to grant downward durational departure
State v. Amoneo Lee, No. 113,562 (Sedgwick)
State appeal
Richard Ney
  • Whether district court properly granted motion to correct illegal sentence under Alleyne
State v. Jerry Thach, No. 112,231 (Sedgwick)
Direct appeal; felony murder
Michael P. Whalen
  • Insufficient evidence of underlying felony

March 1--Tuesday--a.m.

State v. Jordan Mullen, No. 110,468 (Johnson)
Direct appeal (petition for review); possession with intent
Joanna Labastida
  • Failure to grant motion to suppress
  • Deficient search warrant affidavit
  • Failure to properly advise of right to jury trial
State v. Ralph Corey, No. 110,149 (Franklin)
Direct appeal (petition for review); aggravated kidnapping
Lydia Krebs (brief); Peter Maharry (petition for review & argue)
  • Jury misconduct (juror comment during deliberations)
  • Denial of right to be present during readback
  • Improper jury instruction
  • Improper prosecutorial argument

March 3--Thursday--a.m.

State v. William Shank, No. 112,982 (Thomas)
Sentencing appeal
Peter Maharry
  • Improper consecutive sentences
  • Unworkable restitution order
State v. Christian McCormick, No. 109,985 (Sumner)
Direct appeal (petition for review); rape
Christina M. Kerls
  • Improper admission of evidence of another bad act
  • Improper sentence to more than minimum
  • Failure to grant downward departure
State v. Elton Sherman, No. 113,105 (Crawford)
Direct appeal; felony murder
Meryl B. Carver-Allmond
  • Improper prosecutorial argument (defining reasonable doubt)
  • Failure to grant mistrial
  • Speedy trial (due process) violation

Saturday, January 09, 2016

Search incident to arrest nor inevitable discovery justified search of wallet left on car

Shannon Crane won in State v. Reed, No. 113,576 (Kan. App. Dec. 18, 2015), affirming Judge Rose's suppression order in a Reno County drug prosecution. Judge Rose found the following facts:
Defendant was handcuffed and at the rear of his vehicle when his wallet was first searched. The search of the wallet was not justified by safety reasons or as an effort to safeguard evidence of the offense of driving while suspended. The officers were in possession of defendant's driver's license, the only evidence relevant to the crime for which defendant was being arrested. There was nothing protruding from the wallet suggesting any type of safety concern. Officer Carey testified it is police department policy to search a person's effects before placing them in a patrol car. The court assumes this policy is for safety reasons. Here though, defendant was separated from his wallet. Defendant apparently was not asked what he would like done with his wallet, if anything. If officers were concerned about security of defendant's property there was a passenger who arguably could have assumed custody of the wallet. There was no indication the passenger was a minor child or under the influence of drugs or otherwise incapacitated.

The search was not authorized as incident to arrest. The inevitable discovery doctrine does not authorize the admission of the evidence because the wallet was not lawfully seized.
The COA agreed that the search incident arrest doctrine did not apply:
If Reed's wallet had been in his pocket or even in his hand when he was arrested, the search in this case clearly would have been constitutional as a search incident to arrest. But here, Reed placed his wallet on the roof of his car prior to his arrest. Before officers searched Reed's wallet, Lahaan arrested Reed, placed him in the back of the patrol car, and continued to complete the investigation and interview other people at the scene, including Reed's passenger. By the time Carey searched Reed's wallet, there was no possibility that Reed could access the wallet. Therefore, under Gant, the justifications of the search incident to arrest exception were absent and the exception did not apply. The State's undeveloped argument that Gant is inapplicable because it concerned an automobile is unpersuasive in light of the language quoted above from Gant.
The COA also agreed that adopting the state's argument would constitute a huge expansion of the inevitable discovery rule:
The State argues that it would have been unreasonable to expect officers to leave the wallet on the roof of the car. The State further asserts that "[i]f an item is personal in nature, plainly connected to the suspect, and left out in the open, law enforcement should be able to lawfully collect the item. Once the items are lawfully with law enforcement, they may be searched. [Citation omitted.]" If the court accepts the State's assertion, it is essentially saying that officers may search any item an arrestee is "plainly connected to" and which is "left out in the open" without further requirement from the Fourth Amendment. This would run afoul to the Fourth Amendment's premise that warrantless seizures are impermissible without an established exception to the warrant requirement.
Finally, the COA rejected the application of the good-faith rule:
The State contends that the officers acted "with an objectively reasonable good-faith belief that their conduct was lawful." But even if Carey's motivation for searching Reed's wallet may have been benign, the fact remains that he violated Reed's constitutional rights by searching his wallet without a warrant and without an applicable exception to the warrant requirement. This case presents a situation where the exclusionary rule should be applied in order to deter Carey and other law enforcement officers from making the same type of mistake in the future. Thus, the district court correctly applied the exclusionary rule to suppress the evidence found in Reed's wallet.
[Update: the state did not file a PR and the mandate issued on January 26, 2016.]
 

Aiding and abetting instruction given during jury deliberations is clear error

Rick Kittel won in State v. Hover, No. 113,214 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a new trial in a Reno County aggravated battery prosecution.  Ms. Hover argued that the district court's improperly giving an aiding-and-abetting instruction in response to a jury question. During deliberations, the jury asked "If we determine that the defendant was guilty of battery, does she share responsibility for all the harm that was done[?]" Over defense objections, the district court gave a pattern instruction for aiding-and-abetting. The COA held that the instruction was legally inappropriate:
Hover's defense was that the State had failed to prove its case. Hover pointed out the variances in the witnesses' trial testimony and attempted to undermine the State's witnesses' credibility. Moreover, Hover argued that her hemophilia would have resulted in bruises on her hands had she been fighting, but she had no bruises. Hover offered the jury an alternative explanation of the fight: that Kelsie and Renae were the ones who hit Spencer and Hover was trying to break up the fight.

We find that the aiding and abetting instruction was not legally appropriate for the simple reason that neither party asserted an aiding and abetting theory during the trial. Moreover, Hover argues that the instruction was legally inappropriate because giving it violated her constitutional right to present a defense—she was unable to present a defense to or argue against the theory that she was guilty as an aider and abettor since that theory was not introduced until after the close of evidence and argument.
On reversibility, the COA held that the error was clear:
This case essentially boiled down to a credibility contest between witnesses supporting the State's theory—that Hover battered Spencer—and witnesses supporting the defense theory—that Hover was present but did not touch Spencer. By erroneously introducing a new theory of culpability during deliberation, without supplemental argument or presentation of evidence, the district court fundamentally changed the grounds on which the jury could convict Hover. We cannot be sure that the erroneous instruction on aiding and abetting caused the jury's verdict, but there is a real possibility that it did so. Stated differently, after carefully reviewing the entire record, we are firmly convinced there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. Thus, we conclude the supplemental jury instruction on aiding and abetting was clearly erroneous.
As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]

Cannot detain while getting a search warrant without more

Kimberly Streit Vogelsberg won in State v. Daugherty, No. 110,131 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a suppression order in a Butler County drug prosecution. Ms Daugherty argued that officers obtained statements from her during an illegal detention and that the tainted evidence invalidated a search warrant predicated on those statements, which in turn led to incriminating evidence.  The state relied on cases that stood for the proposition that a person can be detained during execution of a search warrant. But the COA held that Ms. Daugherty's case was easily distinguishable:
In Daugherty's case, of course, officers did not have a search warrant when they detained her. Given the cases' strong emphasis on the search warrant to justify a seizure, Summers and Mena do not control the result here.
The COA went on, then, to consider whether a person can be detained while officers get a search warrant.  Ultimately, the COA followed a Fourth Circuit case that held a seizure unreasonable where there was not warrant, no probable cause--or even reasonable suspicion--of criminal activity, and no reasonable suspicion of destruction or concealment of evidence. As a result, the COA held that Ms. Daugherty's detention was similarly unreasonable:
police in our case did not have probable cause to believe that Daugherty had done or would do anything wrong. Nor could Daugherty have destroyed evidence that was in the room; officers were preventing anyone from entering. No officers suggested that Daugherty represented a threat to their safety; the officers didn't handcuff or restrain her while they kept her in the motel lobby. She was seized without being given an option to leave, and the officers did not have a search warrant (or the imminent prospect of one) at the time. We conclude that her seizure in these circumstances violated her right to be free from unreasonable seizure under the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights.
The COA also rejected the state's argument that the reading of Miranda rights during the illegal detention reduced the effect of the illegal seizure. The COA held that, while giving of Miranda rights may be relevant, it did not overcome the fact that the statements were made during the illegal detention and immediately used to get a search warrant.

Finally, the COA held that the state's speculative theory regarding inevitable discovery was not sufficiently litigated at the district court and therefore remanded for further findings.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]

Saturday, January 02, 2016

Insufficient search warrant affidavit leads to suppression of residential search

Washburn student intern Michelle David and I won in State v. Savage, No. 112,882 (Kan. App. Dec. 11, 2015)(unpublished), obtaining a suppression order in a Douglas County drug prosecution. Police had obtained a search warrant to search Mr. Savage's home based on a report from a neighbor, a trash pull, and an old conviction for drug possession. The COA held that there was insufficient evidence presented in the affidavit to support the warrant. The COA agreed with the district court that the remote conviction, by itself, was of little value in the probable cause calculus. Additionally, the non-specific report from the neighbor was not particularly probative. It also held that items found in the trash pull did not establish a sufficient contemporaneous connection to the home:
The affidavit at issue here clearly established a nexus between the garbage retrieved and the residence to be searched. The affidavit states that two trash bags were pulled from in front of Savage's home, on the same day, one yellow bag and one white bag. In the white bag were 14 pieces of mail along with two other documents addressed to Savage at the address to be searched, as well as mail addressed to two other individuals at the same address. Furthermore, an unknown quantity of marijuana mixed with coffee grounds and an opened package of Zig-Zag rolling papers were found. In addition, the trash pull was done the day before the warrant was requested, so the information was not stale. Nevertheless, we are compelled to find that the items recovered from the trash pull fail to establish a fair probability that further evidence of the crime of possession of marijuana would be found in Savage's home.

Even though the affiant requested a search warrant "to complete a more thorough investigation of possession of marijuana," a close examination of the evidence reveals that there is insufficient evidence to suggest a fair probability that marijuana would be found in Savage's house on July 2. The only evidence of criminal activity is that someone who was in the house possessed marijuana and unused rolling papers at some unknown time and subsequently discarded both. The amount of marijuana found is not delineated in the affidavit, but the fact that it was mixed with coffee grounds would suggest it was a small amount, consistent with individual use and not distribution. We do note that no partially burned or used rolling papers were found. We acknowledge that the possession of any amount of a controlled substance, even if it is not measurable or usable, is a crime in Kansas. However, the question is whether marijuana and unopened rolling papers found in a trash bag established probable cause to believe that contraband or evidence of a crime would be found in the residence. Neither party suggests that any criminal charges could be pursued merely for the marijuana found in the trash bag. It is unclear when the past use occurred, when the garbage was removed from the house or even when it was scheduled to be picked up. Even assuming weekly garbage collection, the contraband may well have been evidence of marijuana use several days prior to the examination of the garbage.
So, in totality, even giving appropriate deference to the magistrate, the COA held that the affidavit was lacking ("not even close"). Finally, the state had not argued the good-faith exception to the trial court and had not asserted any reasons for allowing that issue to be raised on appeal or the first time. As a result, the COA ordered that the evidence found during the search of Mr. Savage's home be suppressed.

[Update: the state did not file a PR and the mandate issued on January 25, 2016.]

Saturday, December 12, 2015

January 2016 KSC docket

Here are the criminal cases on the KSC docket for January 25-29, 2016.  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.

January 25--Monday--a.m.

State v. Ebony Nguyen, No. 112,316 (Sedgwick)
Sentencing appeal
Joanna Labastida
  • Failure to grant downward durational departure
State v. Shelbert Smith, No. 110,061 (Sedgwick)
Sentencing appeal
Michelle A. Davis
  • Out-of-time notice of appeal (Ortiz)
State v. Kyle Beltz, No. 111,785 (Sedgwick)
Direct appeal; felony murder
Ryan J. Eddinger
  • Improper admission of prior drug sales and marijuana grow
  • Insufficient evidence of proximate cause of death
  • Failure to give self-defense instruction
  • Failure to give unanimity instruction on distribution

January 26--Tuesday--a.m.

State v. Sarah Sessin, No. 110,054 (Geary)
Direct appeal (petition for review); possession
Randall L. Hodgkinson
[Petitions for review dismissed by agreement; January 26, 2016]
  • Fourth Amendment violation
  • Improper aiding and abetting instruction
  • Insufficient evidence

January 27--Wednesday--a.m.

State v. Mitchell Northern, No. 112,955 (Wyandotte)
Sentencing appeal
Samuel Schirer
  • Notice of appeal from sentence was timely because sentence not complete
  • If notice of appeal untimely, Ortiz exception applied
State v. Dana Chandler, No. 108,625 (Shawnee)
Direct appeal; first-degree murder
Nancy Ogle
  • Improper imposition of hard-50 sentences
  • Improper inference stacking
  • Improper admission of prior bad act evidence
  • Improper prosecutorial argument
State v. Jeff Dickey, No. 110,325 (Saline)
Probation violation appeal (petition for review)
Samuel Schirer
  • Improper admission of prior sentences after revocation
  • Improper scoring of prior burglary conviction in criminal history

January 28--Thursday--a.m.

State v. Breonna Wilkins, No. 109,313 (Shawnee)
Direct appeal (petition for review); aggravated intimidation of a witness
Randall L. Hodgkinson
  • Insufficient evidence
  • Statute is unconstitutionally vague

January 29--Friday-a.m.

State v. Michael West, No. 111,124 (Riley)
Sentencing appeal (petition for review)
Christina M. Kerls
  • Improper restitution order when plan was unworkable

Saturday, December 05, 2015

No concern for welfare supporting welfare check

Rick Kittel won in State v. Canfield, No. 112,610 (Kan. App. Nov. 13, 2015)(unpublished), obtaining reversal of a Shawnee County drug conviction. Police had received a call from a caller who claimed he was the father of Ms. Canfield's children expressing concerns about the children. Police went to the house and pounded on the door until Terrance Jackson came to the door and told police that Ms. Canfield was not there. From the doorway, the officer could see two children, but no contraband in plain view. The children appeared clean and unharmed. The officer arrested Jackson and another officer entered the home. Upon entry, officers found Ms. Canfield sitting on a bed and arrested her on an outstanding warrant and, during a search incident to arrest, found drugs.

The district court had denied the motion to suppress holding that the officers were permitted to make a warrantless entry for a "welfare check" of the children. The COA disagreed:
When Jackson eventually reopened the door, Officer Cruse warned Jackson about obstructing his efforts to execute the arrest warrant on Canfield. He said nothing to Jackson about harboring children in a dangerous environment. But he was able to see behind Jackson the two children standing in the hallway. The children appeared to be clean, and there was no contraband in plain view. The home appeared to be clean and well taken care of. There was no indication the children were in immediate danger.

Officer Cruse did not speak to the children. He did not ask Jackson about the children. He did not inquire who the children were, where their parents were, who was looking after them, or whether there had been any drugs consumed in their presence. The only suspicion he had was that if the children were there, Canfield also may be there. At that point Officer Cruse entered the residence, not for the purpose of addressing the needs of the children but to arrest their mother. He walked right past the children and into the room where Canfield sat on the bed.

There is no testimony that either officer did anything whatsoever to look after the well-being of the children during the entire time they were at Canfield's home. The generalized concern expressed in the call to the police dispatcher was not borne out by any observations by the police officers when they arrived at the Canfield home. We find no evidence in the record which would lead a prudent and reasonable officer to see the need to enter Canfield's home to protect the children. Thus, we conclude the district court erred in finding that Officer Cruse was justified in entering Canfield's home to conduct a welfare check of the children.
As a result, the COA reversed the drug conviction.

[Update: the state did not file a PR and the mandate issued on December 28, 2015.]
 

Saturday, November 28, 2015

Dispositional departure was a "no brainer"

Janine Cox won in State v. Snyder, No. 112,044 (Kan. App. Nov. 6, 2015)(unpublished), affirming Judge Fleming's downward dispositional departure sentence in a Labette County drug prosecution. Judge Fleming adopted several mitigating factors asserted in Mr. Snyder's departure motion, including appropriate action since charging, no criminal history, family support, and taking responsibility for his actions. The COA held that evidence supported all of these factors, even if contested by the state. The COA did acknowledge that a lack of criminal history, by itself, might to support a departure, but that it could be considered along with other mitigating factors, as was done in this case. Ultimately, the COA affirmed:
Here, the district court found the decision to grant the departure was a "no brainer" because "prison doesn't make people better citizens, generally, and it's punishment for the sake of punishment." The district court considered the factors in light of the purposes of the KSGA—(1) reduce prison overcrowding, (2) protect public safety, and (3) standardize sentences so similarly situated offenders are treated the same in order to reduce the effects of racial or geographic bias. The district court found Snyder was amenable to probation and was not a threat to public safety based on his lack of criminal history, his good behavior while the case was pending, the fact he took responsibility for his actions, and his family support. Taking all of these factors into consideration, we find the district court did not abuse its discretion when it granted Snyder's departure motion.
[Update: the state did not file a PR and the mandate issued on December 14, 2015.]
 

Saturday, November 21, 2015

Social guest generally not subject to search warrant of premises

Tracey T. Beverlin won in State v. Hunter, No. 112,963 (Kan. App. Oct. 30, 2015)(unpublished), summarily affirming Judge Meisenheimer's suppression order in a Pratt County drug prosecution. Officers had a search warrant for a residence and when they executed that warrant, officers met Ms. Hunter at the front door. Ms. Hunter provided her ID to the officers from her purse and then indicated she wanted to leave. Officers detained her telling her she was subject to the search warrant. Officers conducted nonconsensual search of Ms. Hunter's purse and found amphetamines and marijuana.

At trial, Ms. Hunter argued that the officer was not authorized to search her purse pursuant to the warrant because there was insufficient evidence of a relationship between her and the residence. The district court agreed and the COA affirmed. The parties agreed that a social guest at a premises that is subject to a search warrant is not generally subject to a search, unless circumstances suggest a relationship between the person and the illegal activities described in the warrant. But the COA held that the district court's finding that the state had failed to prove such circumstances was supported:
In any event, as the district court found, there was no evidence establishing a relationship. The search warrant application was based on Reyna's report to McCarley that he previously had smoked marijuana and methamphetamine with Roberts at the residence on Brendon Court. Specifically, Reyna told McCarley that on the evening of December 14, 2013, Reyna was at the residence and observed Roberts crush up some type of prescription pills, mix them into a solution, and use a needle to inject the solution into his body. Reyna told McCarley that Roberts did not have a prescription for these pills. As the district court found, there was absolutely no evidence connecting Hunter with the illegal activities described in the application for the search warrant. The district court found this lack of connection to be especially apparent because it had been more than 2 days from the time that Reyna had observed Roberts crushing up the prescription pills to the time that Hunter's purse was searched without her consent.
[Update: the state did not file a PR and the mandate issued on December 14, 2015.]
 

Trooper's repeated failure to appear justified dismissal with prejudice

In State v. Stufflebean, No. 112,873 (Kan. App. Oct. 30, 2015)(unpublished), the COA affirmed a magistrate judge's dismissal of a traffic citation with prejudice after a Highway Patrol Trooper failed to appear for the bench trial. Recognizing that dismissal with prejudice is an extreme remedy, the COA still upheld the magistrate judge's action:
Here, the record on appeal reflects that the magistrate judge dismissed the charge against Stufflebean with prejudice because the trooper who issued the traffic citation failed to attend the bench trial. While there is no transcript of the original bench trial in the record, the district judge affirmed the magistrate judge's dismissal in part because Stufflebean had driven over an hour each way to appear in the Jefferson County District Court two previous times—once for the first appearance and once for the bench trial at which Moomau was absent.

It was not unreasonable for the magistrate judge to find that requiring Stufflebean to appear in court yet again was prejudicial to him, especially after he needlessly traveled to Jefferson County at least one other time due to the trooper's failure to attend the bench trial. It is also reasonable not to require a defendant to travel multiple times in order to resolve a traffic infraction when the issuing officer failed to attend the bench trial with no excuse. Also significantly, the magistrate judge's decision did not punish the public and it did not create windfall for Stufflebean. The charge against Stufflebean was not for a violent or especially dangerous offense, meaning he was not an appreciable danger to the public. Stufflebean at most faced a fine if found guilty, meaning he did not gain a substantial windfall through the dismissal when compared to other hypothetical defendants facing prison sentences or large restitution obligations.
[Update: the state did not file a PR and the mandate issued on Decvember 14, 2015.]