The exception to the rule

Here is an article stating that Elbridge "Skip" Griffy got a rare victory in a recent bench trial in a Douglas County sexual violent predator prosecution. As the article states, the State had sought to civilly commit Christopher J. Saemisch for treatment pursuant to the Kansas Sexually Violent Predator Act.

Any commitment would likely have been a life sentence, as statistics from the Secretary of SRS show that more persons have died in the program than have been released since its inception in the early 1990's. After a two-day trial (held earlier this month), Judge Michael Malone ruled that the State had failed to prove beyond a reasonable doubt that Saemisch was likely to re-offend.

Avoiding police is not evidence of crime [NOT FINAL]

Lydia Krebs won in State v. Edwards, No. 104,034 (Kan. App. Oct. 28, 2011)(unpublished), obtaining reversal of a Johnson County felony DUI conviction. The case turned on a claim that officers did not have reasonable suspicion to detain Mr. Edwards in a Hy-Vee parking lot:

Therefore, Officer Njoroge needed reasonable suspicion of criminal activity for her initial encounter to have lawfully continued into an investigatory detention for the DUI tests. Officer Njoroge's decision to stop Edwards' car was arguably based on seven factors: (1) that Edwards' car “slowly crossed” 123rd Street; (2) that Edwards' car “accelerated quickly”; (3) that Edwards was attempting to avoid Officer Njoroge; (4) that Edwards pulled the car into a parking lot and went behind Hy–Vee; (5) that Edwards “blacked out” the car and did not park within a parking stall; (6) that there recently had been a robbery at the particular Hy–Vee; and (7) that there recently had been burglaries in the “area.”

In the case before us, none of the seven factors taken alone, or collectively, rises to the level of legally recognized reasonable suspicion. The crux of the State's argument rests on Officer Njoroge's conclusion that Edwards was attempting to “elude” Njoroge. No facts substantiate this conclusion. Moreover, the record suggests no reasonable basis from which Officer Njoroge could draw such an inference. If this factor is gone, the rest of Officer Njoroge's reasonable suspicion topples like a house of cards. Indeed, if the unsupported characterization that Edwards was attempting to “elude” Njoroge is removed from the equation in this case, there is no factual predicate to support what the law recognizes as reasonable suspicion.

Attempting to “elude” a police officer, even at 1 a.m. is insufficient to give law enforcement officers the requisite reasonable suspicion to conduct a Terry stop because attempting to “elude” an officer is not a crime when no illegal activity occurs. The remaining factors that Officer Njoroge relied on, under the totality of circumstances, fail to establish reasonable suspicion.

Because the state did not prove that the officer had articulable facts that collectively provided reasonable suspicion for the stop, the detention and subsequent investigation violated the Fourth Amendment.

[Update: the state filed a PR on November 28, 2011.]

No proof discovery was inevitable

Michelle Davis won in State v. Richard Jones, No. 103,046 (Kan. App. Oct. 28, 2011)(unpublished), obtaining reversal of a Geary County possession conviction. The state conceded that the search of Mr. Jones' pocket was unlawful, but argued that the evidence would have been inevitably discovered. The COA distinguished attenuation doctrine and the inevitable discovery exception and held that the record did not support a finding of inevitable discovery:

Preliminarily, we note the scant, insubstantial, and hypothetical evidence justifying the application of the inevitable discovery doctrine presented by the State at the hearing on the motion to suppress evidence. As summarized in the Factual and Procedural Background section, important evidence to analyze this question was lacking. Although it was conceded that upon the officers' initial entry into the residence Jones was promptly handcuffed, no evidence was presented regarding the length of time Jones was detained at the residence during the execution of the search warrant. Additionally, the time period during which Jones was transported from the residence and held at the detention center in keeping with the police department's policy to detain individuals until their identity is confirmed is also unknown. Although the district court relied on Lieutenant Life's hypothetical and generic testimony that the FBI comparative fingerprint analysis would have taken at least 1 hour, we are left to speculate how long it actually took in the present case.

The answers to these questions would have provided an evidentiary basis in which to determine whether Jones' continued detention was a lawful or unlawful means to the inevitable discovery of the cocaine. Suffice it to say, it is not an appellate court's role to speculate about such factual matters. It is the State's burden, however, to establish the evidentiary basis for the inevitable discovery doctrine in each particular case.

Because the COA held that the state failed to prove the exception, it held that the continued detention violated the Fourth Amendment and reversed. The inevitable discovery doctrine requires proof that evidence would have been discovered in the case at bar, not just most hypothetical cases.

[Update: the state did not file a PR and the mandate issued on December 1, 2011.]

Failure to prove facts about priors

Washburn student intern Dustin L. Kirk and I won in State v. Hunt, No. 104,529 (Kan. App. Oct. 21, 2011)(unpublished), obtaining reversal of a Sedgwick County criminal possession of a firearm conviction. This case was litigated by bench trial mainly to preserve a suppression issue for appeal. But the criminal possession of a firearm charge required that the state prove that Mr. Hunt had been convicted "within the preceding 10 years." The COA held that the state failed to provide any evidence of that fact:

But the parties' stipulation that the gun was working certainly did not prove when the prior felony conviction had occurred. And the evidence had not done so, either. The evidence on this point was one officer's testimony that “[i]t turned out Mr. Hunt actually had a felony conviction for prior marijuana possession, which would make it a felon in possession of a firearm [offense], and that is what he was booked for.” The officer later confirmed that Hunt had “been previously convicted of a felony.” No one asked when that conviction had occurred.

. . . .

We do recognize, although the State does not make this specific argument, that Hunt was 22 years and 9 months old at the time of this arrest. Thus, for his past conviction to have been more than 10 years old at that time, he would need to have received the equivalent juvenile adjudication sometime before he was 12 years and 9 months old. Is that likely? No. But can we say beyond a reasonable doubt—based solely on the evidence presented at trial—that he didn't receive a juvenile adjudication for the equivalent of felony marijuana possession before he was 12 years and 9 months old? No. Even 12–year–olds can be adjudicated for marijuana possession.

. . . .

We can understand how the State's lapse occurred in this case. Presumably, both parties initially thought all of the elements needed to convict had been proved. But a trial was held, and the evidence wasn't sufficient to prove the defendant guilty beyond a reasonable doubt. The State bears that burden.

This case is a nice reminder that a bench trial, and even a bench trial on stipulated facts, is still a trial. The Due Process Clause still requires proof beyond a reasonable doubt with evidence on the record. It also may be a nice case why the state should support amending the Kansas statutes to reflect that defendants should be able to enter conditional guilty pleas, reserving specific issues for appeal.

[Update: the state did not file a PR and the mandate issued on November 29, 2011.]

Odor of marijuana not sufficient to search shoe [NOT FINAL]

Rick Kittel won in State v. Robert Smith, No. 103,736 (Kan. App. Sept. 30, 2011)(unpublished), obtaining a reversal of a Geary County possession with intent to sell conviction. The issue revolved around the search of a passenger in a car stopped for incorrectly registered tags. When stopped, the detective detected the odor of marijuana on the passenger, they had him get out of the car and conducted a pat-down, which revealed $370 in cash, but no weapons or drugs. The detectives handcuffed the passenger and had him go back to the patrol car and remove his shoes. The COA considered whether this search violated the Fourth Amendment:

Whether the $370, Smith's nervousness, and the odor of perfume when coupled with the odor of marijuana provide probable cause is a close question. Probable cause is judged by the totality of the circumstances and not by judging each factor in isolation. Under current Kansas law the odor of marijuana alone is not enough, and the other factors in Smith's case provide little if any further support.

Because the COA held the detectives did not have probable cause, it held the search violated the Fourth Amendment and reversed the conviction.

[Update: the state filed a PR on October 25, 2011.]

Insufficient evidence of mistreatment [NOT FINAL]

Lydia Krebs won in State v. Anderson, No. 103,484 (Kan. App. Sept. 30, 2011)(unpublished), reversing a Saline County felony mistreatment of a dependent adult conviction. The state charged Ms. Anderson stemming from her taking money out of a bank account on which she was a joint signatory with her mother. The COA held that such actions did not amount to the crime of mistreatment of a dependent adult:

Here, however, the evidence fails to support the State's obligation to show that Anderson somehow influenced Johnson to part with the money in the bank account. That didn't happen. Anderson had been authorized to sign checks on Johnson's account. And sign away, she did—apparently taking thousands of dollars to make improvements to her house and otherwise for her own benefit. Anderson did not need to induce Johnson to do anything to get the money and didn't attempt to do so. She just wrote checks.

The evidence and the scheming do not amount to mistreatment of a dependent adult. Had Anderson gone to Johnson and used the illicit means described in the statute to get Johnson to write checks to her that would have constituted mistreatment in violation of K.S.A. 21-3437(a)(2). For example, if Anderson had falsely claimed to need the money for her own medical care or threatened to move Johnson to an inferior care facility to get Johnson to sign checks payable to her, such conduct would violate the statute. But that's not what happened here.

As a result, the COA reversed the conviction.

Problem when verdict form doesn't allow for acquittal [NOT FINAL]

Christina Waugh won in State v. Rice, No. 103,223 (Kan. App. Sept. 9, 2011), obtaining a new trial for two counts of attempted aggravated criminal sodomy in a Nemaha County prosecution (the COA affirmed two counts of aggravated indecent liberties).

With regard to the criminal sodomy counts, the state charged Mr. Rice charged with aggravated criminal sodomy. The district court decided to give lesser-included offense instructions for attempted aggravated criminal sodomy. But the verdict form had some problems:

“COUNT I
“We, the jury, find the defendant, Dennis Edward Rice, not guilty of the crime of Aggravated Criminal Sodomy.
__________
Presiding Juror

“We, the jury, find the defendant, Dennis Edward Rice, guilty of the crime of Aggravated Criminal Sodomy.
__________
Presiding Juror

“We, the jury, find the defendant, Dennis Edward Rice, guilty of the lesser included
crime of Attempted Aggravated Criminal Sodomy.
__________
Presiding Juror”

As the COA recognized, the verdict form did not provide an option of finding Mr. Rice not guilty of attempted aggravated criminal sodomy or generally not guilty. The jury convicted Mr. Rice of attempted aggravated criminal sodomy. After a long review of applicable case law, the COA held that the defective verdict was clear error:

Critically, the jury was never provided a place on the verdict form to find Rice not guilty of the lesser included offense. Although the jury was told that Rice was presumed innocent and that it should find him not guilty if it had a reasonable doubt on any of the claims required to be proved by the State, the jury may have already found Rice not guilty of the charged crime on Count I. There was only one line remaining, and expecting the jury to know it could choose not guilty there as well would presume not only that the jury was capable of going beyond the form provided, it would presume the jury was capable of disregarding a reasonable interpretation of the trial court's instructions to chose only one line.

BTW, although the KSC has repeatedly disapproved separate guilty and not guilty instructions on lesser-included offenses, I still think they are a good idea. (The problem in this case is that they simply didn't give complete instructions).

Why? So that a jury could acquit on a greater offense, but hang on a lesser. For example, say a jury is considering first-degree murder, with second-degree murder as a lesser. And say six jurors have a reasonable doubt regarding premeditation and six jurors have a reasonable doubt about guilt altogether. What should be the result? There are twelve jurors that think the defendant is not guilty of first degree murder, which should be acquittal on that greater charge (and therefore retrial only on the lesser). But the pattern verdict form does not allow for that possibility. Under the pattern verdict form required by the KSC, you would simply have a hung jury.

So, if you're in this situation where the district court has given lessers (with pattern verdict form) and the jury has indicated that it reach a unanimous verdict, ask the district court to poll the jury regarding their verdict on the greater offense. It's an off chance, but it the jury unanimously found that the client was not guilty of the greater offense, it would be a pretty good issue.

[Update: Mr. Rice filed a PR from that part of the COA decision he lost on October 11, 2011.]

Happy Kansas Constitution Day!

A few weeks ago, we celebrated Constitution Day. The Court of Appeals sat in special settings at several locations around the state. Kansas schools focused on the history of the Constitution. Constitution Day, of course, celebrates the anniversary of the date the U.S. Constitution was signed at the Constitutional Convention (September 17, 1789). I appreciate and support the recognition for the U.S. Constitution. But where is the love for the Kansas Constitution?

On October 4, 1859, the voters of the territory of Kansas ratified the Wyandotte Constitution, which remains our state constitution to this day. But as Paige Nichols and Dan Monnat explained in an article last year, the Kansas Constitution is a lonely and forgotten document. They explained: "[t]he rights that many free-staters died facedown in the mud to secure are rarely treated as sovereign rights independent of the federal constitution." In fact, Kansas appellate courts frequently interpret the Kansas Constitution as a mirror of its federal counterpart (even when the language of our state constitution is different). However, part of the blame is on the practitioners, who rarely seem to raise Kansas constitutional claims separate from the federal issues.

So today, in an effort to promote the use and independent protections of the Kansas Constitution, I celebrate Kansas Constitution Day. Although it's not an official holiday (yet), I will be meeting with like-minded Kansans to honor the anniversary of the adoption of the Kansas Constitution (we will be meeting at Free State Brewery in Lawrence). I encourage you to join.

You have to be there to acquiesce.

Patrick Dunn won in State v. Donnie Taylor, No. 104,455 (Kan. App. August 26, 2011)(unpublished), affirming Judge Rome's dismissal of several drug charges based on a statutory speedy trial violation. At one pre-trial proceeding, Mr. Taylor's lawyer appeared and requested a continuance, but Mr. Taylor was not present. The COA described the issue:

The issue is this: Did Taylor's absence from the December 1, 2009, hearing in which his lawyer requested and received a continuance require that the resulting delay be charged against the State? If so, the 90–day deadline expired during that time, requiring Taylor's discharge based on a violation of K.S.A. 22-3402.

. . . .

The Arrocha holding fits the material facts here in that Taylor's counsel sought a continuance that pushed the trial date past the speedy trial deadline. But—and this is a crucial but—in that case Arrocha was present by his counsel's side and did not personally object. Here, Taylor was not to be found physically in the courtroom or electronically present through an audio-visual connection from a remote location. In short, Taylor could not have lodged a personal objection because he had no opportunity to do so despite the statutory requirement of K.S.A. 22-3208(7) that he be present at the motion hearing and, thus, be afforded that opportunity. We need not determine if the hearing on the motion to continue was a critical stage of the case in a constitutional sense, thought it might have been. Taylor's statutory right to be present is of sufficient magnitude to direct the outcome here.

There was, of course, no mystery about Taylor's whereabouts. He was an involuntary resident of the Reno County jail and presumably could have been produced for the December 1 hearing. This is not a situation in which a defendant voluntarily failed to appear and, thus, reasonably might be viewed as having waived any personal objection to the proceedings.

Taylor had a right to voice an objection to his counsel's motion for a continuance, particularly one pushing the trial past what would have been the speedy trial deadline. And he had a right to be present at the motion hearing. Neither of those rights was observed except in the breach. The combined effect was to deprive Taylor of the opportunity to assert his speedy trial right. And, in turn, he cannot be said to have agreed to or acquiesced in the compromise of that right. The lesson, if there be one, is that a criminal defendant needs to be present at a hearing on a motion for a continuance and should affirmatively state on the record his or her personal assent to the request before the judge rules.

Good lesson.

[Update: the state did not file a PR and the mandate issued on September 30, 2011.]

Contradictory instructions require reversal

Lydia Krebs won in State v. Xavier Miller, No. 100,247 (Kan. Sept. 2, 2011), obtaining a new trial in a Wyandotte County intentional second-degree murder prosecution. The KSC summarized the issue:

whether the district court clearly erred when it appropriately instructed the jury that it should simultaneously consider the lesser included offenses of second-degree murder and voluntary manslaughter, but then erroneously gave a contradictory instruction directing the jury to consider the offense of voluntary manslaughter only if it could not agree on the offense of second-degree murder.

This is another case in a fairly long and consistent line of cases dealing with voluntary manslaughter as a lesser-included offense of second-degree murder. It's sort of an odd duck because voluntary manslaughter is second-degree murder PLUS some mitigating circumstances. KSC precedent makes it clear that the jury should consider the offenses together, but the instructions in this case were contradictory, indicating in one place that the jury should consider them at the same time, but also instructing the jury to consider voluntary manslaughter only after consderation of the greater offense. The KSC held this to be clear error:

We conclude under the facts of this case, that when the jury was given contradictory instructions to consider the lesser included offenses of second-degree murder and voluntary manslaughter both sequentially under a modified form of PIK Crim. 3d 56.05, Alternative A, and simultaneously under PIK Crim. 3d 56.05, Alternative B, and the remaining instructions, closing argument, and verdict form also led the jury to consider the lesser offenses sequentially rather than simultaneously, a real possibility exists that the jury would have rendered a different verdict had it been properly instructed.

This is an important result because many COA cases (like the COA in this case in fact) have held that improper instructions regarding ordering of jury consideration are cured if there is at least one correct instruction. But this case stands for the proposition that contradictory instruction on a fundamental point is clear error.