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].

1 comment:

gb said...

I think it's a good idea in general to start really challenging a lot of the conspiracy convictions we see -- in terms of holding the State's feet to the fire regarding the overt act in question. Often, the State will depend upon 'inference' which can often constitute no more than mere association and/or physical proximity with the person who actually committed the crime. In spite of their duty to be objective, juries are nevertheless human, and prone, whether consciously or unconsciously to assuming guilt by association.