Tuesday, January 31, 2006

On the road again . . .

I'll be heading out for a four-city tour doing Ortiz hearings in the next couple of weeks. (Hutchinson, Saline, Mound City, Burlington). I should have t-shirts made. Bryant and Phinney have made this the wave of the future for these manufacture clients that are still sitting around wondering why their cell-mate got out a year ago. I know that a lot of practitioners are dealing with these hearings across the state and probably will continue to do so until these cases are exhausted. Here is an exceprt from a brief I just filed where a client was given some information about a right to appeal, but I am arguing that it is insufficient under Ortiz:

In State v. Mitchell, 231 Kan. 144, 642 P.2d 981 (1982), the Kansas Supreme Court considered whether advice given was sufficient in light of Ortiz. Mitchell was told by his trial attorney that he could appeal, but was not told about the time frame for an appeal and was not advised that the district court had a statutory duty to file the appeal if requested. The Court observed that Kansas statutes, similar to federal rule counterparts, are designed to "insure that all defendants who might wish to appeal are fully aware of their appeal rights." Mitchell, 231 Kan. at 147 (quoting United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir. 1970)). "A full awareness of one’s rights surely must include the knowledge that there is a time frame within which those rights must be exercised." Mitchell, 231 Kan. at 147; State v. Willingham, 266 Kan. 98, 101, 967 P.2d 1079 (1998). "The Constitution requires that the client be advised not only of his right to appeal, but also of the procedure and time limits involved and of his right to appointed counsel on appeal." United States v. Faubion, 19 F.3d 226, 231 (5th Cir. 1994) (considering claim that failure to inform regarding appeal rights violates Sixth Amendment).

In State v. Redmon, 255 Kan. 220, 873 P.2d 1350 (1994), the Kansas Supreme Court again considered the sufficiency of advice regarding appeal rights given to a defendant. Before sentencing Redmon, the district court indicated that "any defendant who should receive probation has a right to expungement of the proceedings and a right to appeal relative to jury sentencing and the probation aspect you should confer with your attorney regarding those matters." The Court held that such advice "does not clearly inform defendant of his rights concerning appeal." 255 Kan. at 223 (emphasis added). And Redmon’s trial attorney sent him a letter informing him that he could appeal his sentence if he believed the sentence was too severe, but directed Redmon to contact the Appellate Defender Office to file such an appeal. The Kansas Supreme Court observed that this advice "directly contradicts the duty of trial counsel as stated in K.A.R. 105-3-9(a)(3)." 255 Kan. at 223. Under these circumstances of ambiguous and inaccurate advice, the Kansas Supreme Court held that Redmon was entitled to file a late direct appeal.

The rule that can be extrapolated from these cases is that, for purposes of Ortiz, a defendant is entitled to a late direct appeal if he or she is not clearly, fully, and
accurately advised regarding the right to appeal, either by the district court or possibly by his or her trial attorney. If advice is given, but that advice is ambiguous, incomplete, or inaccurate, the defendant should be allowed to proceed with a direct appeal under Ortiz.

Thus, in some cases (like Pratt County), there is a general notice of right to appeal sentence in a plea form, but no information about procedure (time limits, appointment of counsel). In other cases (like Sedgwick County), there is a pretty good notice regarding procedure, but the plea form tells clients that if they get a sentence pursuant to plea agreement, appellate court will not review sentence. That is inaccurate advice (at least where client gets sentence pursuant to plea agreement). So in any of these cases, even though it facially appears that clients have some information about appeals, there is still quite a bit of room to argue that Ortiz applies. And we will see how those arguments pan out in 2006.

Isn't propensity evidence always propensity evidence?

One possible use of this blog is to foster communication between appellate defenders and trial attorneys. We often have ideas about possible new ideas, but unless there are objections to evidence or requests for instructions or the like, it is difficult/impossible to get good review on appeal. Also, trial attorneys might have had success with some objections/motions and want to pass it along to other trial attorneys. So, if you have any ideas, let me know.

Rick Kittel made this suggestion:

I've had a couple cases recently, and more going back, where the state has been allowed to produce evidence of prior crimes of the defendant independent of 60-455 for the purpose of showing the relationship of the parties. It seems to me that in these situations, even if 60-455 is not involved, there should be a limiting instruction given to the jury.

1. Other crimes evidence is so problematic and potentially prejudicial that 60-455 was created to deal with the problem and interpretation of that statute has required a limiting instruction be given.

2. Numerous cases have held that prior crimes evidence may not be used by the jury to form the inference that becuse the defendant committed prior similar crimes that he must have committed the current crime. One of the 11 principles of Bly is that evidence of other crimes is inadmissilbe if its only purpose is to show the defendant's propensity to commit crimes. But isn't that what evidence of prior crimes does when it is admitted independent of 60-445 to show the relationship of the parties? It just shows the defendant has a history or an inclination to commit crimes against a particular victim.

3. If prior crimes evidence cannot be used by a jury to form these improper inferences, then the jury should be given a limiting instruction specifically stating as much, even when evidence is admitted independent of 60-455. Although I don't think there's really any difference between relationship and continuing course of conduct on the one hand and propensity to commit crime on the other, the jury should be specifically instructed that it cannot use the prior crimes evidence to form the inference that the defendant has a propensity to commit crimes.

4. This issue, of course, won't fly unless it's raised in the trial court.

I think anytime this issue comes up defense counsel should start arguing (1) relationship and contining course of conduct is just another way of saying propensity to commit crimes and therefore such evidence is inadmissible under 60-455 and (2) the concept of admission of evidence independent of 60-455 should be abandoned and the statute should be applied in all circumstances when other crimes evidence is at issue, and (3) even if evidence is admitted independent of 60-455 a limiting instruction should be given.

So be sure to think about a request for a limiting instruction when any of this bad-acts type evidence is admitted "independent" of 60-455. Although the law is not good right now, maybe your case will establish the precedent making better law!

Tuesday, January 24, 2006

Best of 2005 (Part III)

Well, let's finish up with a couple of great cases, both from a practical aspect and a advocacy aspect. In State v. Elnicki, Pat Dunn won a reversal in a rape/aggravated crim sodomy case out of Topeka. Over trial counsel's objection, the state introduced a videotape in which the interrogators repeatedly said "you're bullshitting" and "you're weaving a web of lies" and the like. The KSC reviewed cases from other jurisdictions and said this was improper comment on the credibility of a witness by another witness. By the way, as correctly pointed out by Amy Girard in her comment to my previous post, this is another example of movement by the KSC on standard of review as the Court found that the question at issue was a legal one and, therefore, reviewed admission of the videotape de novo. The KSC also found prosecutorial misconduct. The prosecutor described the defendant's version of events as a "yarn," "fabrication," "tall tale," and "spin." The KSC found that such comments are personal comments on credibility, just the same as calling a defendant a liar.

Last, but certainly not least, in State v. Dixon, Sarah Johnson won a reversal in a high-profile felony murder case out of Emporia. The KSC reversed based on improper denial of a public trial due to sealing of the courtroom during reading of the verdict (denial of a public trial is structural error). The KSC also reversed based on improper questioning of the defendant regarding his contacting a lawyer after the alleged offense. In direct examination, the prosecutor (Maxwell) elicited testimony from officers that Dixon had telephoned an attorney. The prosecutor also commented on Dixon's contacting an attorney during closing argument as an inference of guilt. The KSC considered this to be prosecutorial misconduct and reversed.

On the whole, this was a good year for our office and for the Constitution. We will see how it carries over to 2006!

Friday, January 20, 2006

Best of 2005 (Part II)

Another continuing story from 2004 is the unfolding McAdam saga. Developments in 2005 included State v. Boley, a Newton case, where the KSC held that a defendant who sought a McAdam sentence on direct appeal did not violate a plea agreement that included joint recommendations for a specific sentence. This was no surprise to those of who have tried (unsuccessfully) to withdraw a plea when a judge didn't follow a sentencing agreement.

On the bad side, in Bryant v. State, from Pratt, the KSC held that Mr. Bryant could not assert McAdam for the first time in a 1507 motion. Of course I always thought you could raise a claim that a sentence was contrary to Kansas law because the statute says you can raise a claim that a sentence was contrary to Kansas law. But the KSC disagreed and said (I guess) that you can only raise a sentencing claim in a 1507 motion if it is "illegal" or unconstitutional. Because neither of those definitions apply to a McAdam claim, Mr. Bryant lost.

But because good things come to those who wait, in State v. Phinney, another Newton case, the KSC held that Ortiz applies in these cases, so defendants that can show that they were not notified of the right to appeal can seek a late direct appeal and obtain McAdam relief that way. So now a large number of these clients who lost their collateral attacks (like Mr. Bryant) are trying to go with late direct appeals. Before all this mess, the COA was pretty accepting about allowing late notices of appeal under Ortiz. My experience so far is that the COA has engaged in more scrutiny in these McAdam cases. But we have also seen some cases decided on summary disposition under Phinney (after a long wait).

Finally, in Laymon v. State, from Rice County, Robert Anderson won a sentence reversal because the ADO was ineffective for failing to raise a McAdam claim in an appeal pending at the time McAdam was decided. The KSC uses language in Laymon and Boley that makes it appear that the KSC thinks McAdam was forseeable before January 20, 2004, the date it was issued, but what date is the dividing line between deficient and effective performance remains to be seen. It might be July 9, 2004 (the date PR was granted in McAdam), April 11, 2003 (the date of the published COA decision in McAdam), December 12, 2002 (the date of the first Layton decision, which is the first mention of the overlap regarding compounding), October 11, 2002 (the date of the Luttig decision, which was the first published case rejecting any issue regarding manufacture sentencing), March 15, 2002 (the date Frazier was issued granting relief under the identical offense doctrine), or eariler.

We will likely see more decisions on Ortiz and IAC in the McAdam context as well as possible decisions about the overlap between 65-4159 (manufacture) and 65-4152 (use of paraphernlia to manufacture) and also decisions about whether 65-4127c applies to 65-4141 and 65-4142. Keep an eye out!

Monday, January 16, 2006

The statute says allege the overt act.

Rick Kittel won a reversal of a conspiracy to commit aggravated battery charge. In State v. Marino, No. 93,645 (Kan. App. Jan. 13, 2006), the state had failed to allege an overt act in the complaint/information. Although such claims are usually not very well received for the first time on appeal, because the conspiracy statute (K.S.A. 21-3302) specifically requires allegation of an overt act, the COA reached the issue and reversed for the first time on appeal. But don't forget, in most situations, in order to get a good standard of review, trial practitioners should carefully review the complaint/information and if there are any arguable defects, file a motion to arrest judgment within 10 days of the verdict.

[Update: the state filed a PR on February 7, 2006].

[Further update: the KSC denied the state's PR and the mandate issued on May 10, 2006].

Best of 2005 (Part I)

Since this is the beginning of 2006, I thought maybe a good starting place was to review some of the important cases we've seen in 2005. I suppose the biggest trend we have seen has been a willingness to reconsider the standard of review by the KSC. In several cases, the Court has changed the standard of review, either expressly or implicitly. For example: In State v. White, Michelle Davis won a reversal of a murder conviction based on a claim regarding the refusal to admit expert testimony. The KSC acknowledged that historically, such a claim was reviewed for abuse of discretion. But the KSC reviewed it de novo:

The State responds that a defendant's right to present his or her defense is subject to statutory rules and case law interpretation of rules of evidence and procedure, also citing Evans, 275 Kan. at 102. Such rules would include our oft-repeated statement that the admission of expert testimony lies within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of such discretion. See State v. Brice, 276 Kan. 758, 775, 80 P.3d 1113 (2003). For several reasons, we hold that our review of this evidentiary-based question is de novo.

Similarly, in State v. Franklin, although it ultimately affirmed, the KSC reviewed a hearsay issue with a de novo standard of review:

Hearsay evidence is excluded unless it fits within specific statutory exceptions. K.S.A. 2004 Supp. 60-460. Accordingly, the admission of out-of-court statements (if hearsay, i.e., to prove truth of matter asserted) is controlled by statute and requires the interpretation of a statute. This court reviews the interpretation of a statute as a question of law, using a de novo standard. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).

And in Laymon v. State, the KSC addressed one of my personal pet peeves. Although summary denial of a 1507 motion is supposed to be based on the motion, records, and files, (so the reviewing court is in the same position as the trial court), we have fought uphill against an abuse of discretion standard forever. In Laymon, the KSC acknowledged that for summary denials, review should normally be de novo:

The district judge elected to summarily deny Laymon's motion without reaching the merits of the ineffective assistance of direct appeal counsel claim. We have often stated that we review such a summary disposition under an abuse of discretion standard. See, e.g., Estes v. State, 221 Kan. 412, 414, 559 P.2d 392 (1977); see also Gilkey v. State, 31 Kan. App. 2d 77, 78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003). And Supreme Court Rule 183(h) (2004 Kan. Ct. R. Annot. 221) states that the "sentencing court" has discretion to ascertain whether a 60-1507 claim "is substantial before granting a full evidentiary hearing and requiring the prisoner to be present."

However, to the extent a decision is based only upon the "motion, files, and record" of a case, an appellate court is as equipped as a district court to decide the issues efficiently and reliably, and both this court and the Court of Appeals routinely engage in de novo review of summary denials of 60-1507 motions while giving lip service to the abuse of discretion standard. See, e.g., Jackson v. State, No. 90,152, unpublished Court of Appeals opinion filed April 23, 2004 (Johnson, J., concurring).

So the moral of the story? If you are an appellate practitioner, don't give up on the standard of review. The more statute-related or legal-related you can make the issue, the better to argue for a de novo standard. If you are a trial practitioner, try to frame the issue as a legal decision as much as possible, in case you need a better standard of review down the road.

We have not seen this movement on the standard of review trickle down to the COA much yet. And it remains to be seen whether some change in the standard of review actually makes any difference in review in the KSC. But we have been citing White in many many briefs since it came out and we will see if it will have much impact on our appellate practice.