Monday, January 16, 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.


jc said...

I like the new blog. I second the "don't give up on standard of review" motion. The Supreme Court, in particular, seems to be really interested in stretching its reach. Let's accommodate the Court!!


gb said...

Don't forget State v. Elnicki, 279 Kan. 47, in which the Court held that while the admission of evidence is normally subject to the district court's discretion, it can also be framed as a question of law depending upon the "contours of the [evidentiary] rule in question."