Wednesday, February 22, 2006

That'll teach me to petition for review!

In the ongoing march of post-McAdam litigation, one issue that has been in the background for a while is whether K.S.A. 65-4159 (manufacture--drug severity level 1) is identical to K.S.A. 65-4152 (use of paraphernalia to manufacture--drug severity level 4). This issue became more important for manufacture offenses occurring after May 20, 2004, the effective date of the legislative McAdam fix (which purports to return all manufacture related offenses to drug severity level 1).

In October, the COA held that the two statutes do not proscribe identical conduct in State v. Miles, an unpublished opinion in appeal 93260. I filed a petition for review to the KSC and last week got an order not only denying the petition for review, but on its own motion, the KSC ordered the COA opinion published. (Here is the link to the now-published case).

The COA distinguished the statutes as follows:

From a practical standpoint, the defendant's argument holds some validity. Due to the broad definition of drug paraphernalia provided by statute, it would be impossible to manufacture any controlled substance without drug paraphernalia.

. . . .

For purposes of identifying identical proscribed conduct under different statutes, however, the test is not whether proving one offense necessarily proves the other but whether the same conduct, as defined by the elements contained within each statute, is proscribed.

K.S.A. 65-4152(a)(3) possesses a crucial element which differs from the elements for manufacturing methamphetamine under K.S.A. 65-4159(a): physical control of drug paraphernalia. While drug paraphernalia is a factual prerequisite to the manufacture of methamphetamine, it is not a legal prerequisite. Consequently, based upon the plain language contained in the two statutes, we are convinced the legislature intended to criminalize two different acts. Under K.S.A. 65-4159(a), the legislature intended to criminalise the act of producing a controlled substance; under K.S.A.
65-4152(a)(3), the legislature intended to criminalize the possession, collection, or application of non-controlled substances or products with the intent to produce a controlled substance.

If anyone can tell me what the factual prerequisite/legal prerequisite distinction means, please let me know.

Anyway, you know that I am always looking for the silver lining, so here are a couple of good things that practitioners can use for trial practice.

First, "physical control" is a "crucial element" in a possession case. If the state requests a constructive possession instruction--in any kind of possession case--you should object citing this case and you should always request an instruction stating that "physical control" of the substance or paraphernalia is required for conviction.

Second, at a manufacture trial, you should request an instruction stating that manufacture does not include "the possession, collection, or application of non-controlled substances or products with the intent to produce a controlled substance." It sort of begs the question of what, then, is manufacture? I really don't know, but it must be something different than the quoted language. And you should raise a sufficiency issue in any case that only involves "the possession, collection, or application of non-controlled substances or products with the intent to produce a controlled substance." Perhaps this is an indication that the KSC is backing off or refining its broad defintion of manufacture in State v. Martens.

Finally, even though ordered published by the KSC, this is still a COA opinion. We will keep trying to get this to the KSC and maybe we can get some better discussion of these issues. In any case, be sure to file a notice of appeal in any case involving a drug severity level 1 offense.

Thursday, February 16, 2006

SCOTUS orders response in an Ivory/Hitt case

The SCOTUS has ordered the state to respond to a cert petition we filed in Bowen v. Kansas. The only issues in the cert petition involves the use of juvenile adjudications under the prior conviction exception found in Almendarez-Torres and the continuing validity of the prior conviction exception itself after Apprendi/Blakely. This is an issue screaming out for certiorari review (see Professor Berman's Sentencing Law and Policy blog here) and Mr. Bowen's case is particularly compelling. Based on some juvenile felony assault adjudications, Mr. Bowen's maximum sentence was increased from 34 months to his imposed sentence of 102 months.

We have filed around 15 of this type of cert petition over the last three years or so. And the SCOTUS has ordered response in a few of them, including ordering the US Solicitor General to respond in Hitt. Although the SG indicated that the issue was proper for certiorari review (albiet in another case, not Hitt, see here), the SCOTUS has denied review in each case presenting this issue so far. So, again, simply ordering a response does not mean much. I will keep you up to date if there are any developments in this area. For practitioners, I guess I just keep up my oft-repeated, but little-heeded advice that an standard objection under Apprendi should be entered at any sentencing hearing where criminal history makes any difference.

[Update: The SCOTUS ordered a response in another Ivory/Hitt case, Fleming v. Kansas on March 6, 2006. These cases are a pretty similar issue. It will be interesting to see if the time is ripe for the SCOTUS to reach this issue.]

[Further update: The SCOTUS denied cert in both cases on April 17, 2006. Luckily, I have a couple more petitions that I can hand deliver when I'm in DC next week. Until the SCOTUS resolves this issue, I think we should keep sending cases up there. I suppose the best-case scenario is a case where there is factually disputed criminal history (really factually disputed, not just legally disputed) and where the criminal history makes a big difference. If you have a case like that, be sure to contact me!]

Monday, February 13, 2006

SCOTUS orders response in Lackey

As is the normal practice, the state had waived a response in Lackey v. Kansas, a cert petition filed by Pat Dunn from a KSC decision saying that Crawford does not apply to autopsy reports. (Here is the KSC decision). The SCOTUS ordered a response due on March 9.

We shouldn't read too much into this, although it is better than the alternative (cert petition denied). The SCOTUS has frequently ordered such a response without any further positive action in a case. As you may know, the SCOTUS is hearing a couple of compainion cases that may help define "testimonial" for purposes of Crawford analysis. (See Professor Friedman's Confrontation Blog here for more details). Maybe there could be some interest in Lackey in relation to any further explanation in one of those new cases.

[Update: The SCOTUS denied cert without comment on April 3, 2006. In light of the pending Crawford cases, I think there is likely to be more litigation in this area, so if you have an autopsy report coming in without the doctor, keep making those Sixth Amendment objections!]

Friday, February 10, 2006

Ruminating on searches incident to arrest

I have been thinking about a spot in the latest Criminal Law Reporter involving a New Jersey Supreme Court case disagreeing on state constitutional grounds with the Belton rule, allowing officers to search the entire passenger compartment including the glove compartment incident to arrest of a recent occupant of the vehicle. This decision, State v. Eckel, is interesting to me for a couple of reasons.

First, as the CLR notes:

Although the U.S. Supreme Court recently reaffirmed a broad reading of the Belton rule in Thornton v. United States, 541 U.S. 615 (2004), five justices signed opinions in that case expressing dissatisfaction with the current interpretation of the federal search-incident exception and presaged a return to the issue.

I haven't counted the votes to see what the switch to Roberts-Alito might mean for this issue, but it certainly seems to be an area ripe for litigation.

Second, although the KSC has resisted any notion that the Kansas Constitution might mean something more than the Federal Constitution, Eckel is another example of a state supreme court giving some teeth to its state constitution. From a purely personal perspective, I just don't understand how/why the Kansas courts keep abdicating their responsibility to decide what the Kansas Constitution means. If the KSC thinks the United States Supreme Court has incorrectly too restrictively interpreted the Fourth Amendment, there is not much it can do about that. But if, as in Eckel, and a legion of other state cases, the KSC believed that the Search and Seizure Clause provides more protection than as interpreted by SCOTUS, it would seem to have a duty to do so, under the state constitution. I wonder if we will ever see the day when a criminal case is reversed based on the Kansas Constitution. I know a lot of attorneys here who are interesting in continuing that fight, so be sure to keep citing the Kansas Constitution in your Fourth, Fifth, and Sixth Amendment motions to suppress!

Thursday, February 09, 2006

SVPA win

It's not technically criminal, but worth mention. My former boss, Jessica Kunen won a SVPA reversal in In re Foster, No. 91,324 (Kan. Feb. 3, 2006), the KSC found prosectorial misconduct when the assistant attorney general made opening statements about how the committees had reviewed the SVP proceedings and that a judge had found sufficient evidence to have a SVP trial. The KSC found that this improperly vouched for the case and implied that there was judicial approval of the prosecution. I suppose it would be like arguing in a criminal case that "look, I charged the guy and the judge bound him over for trial . . . he must be guilty," which is pretty obviously incorrect. The KSC also held that polygraph results are not admissible in SVP proceedings, distinguishing (my) previous loss that held that polygraph results are admissible in probation revocation proceedings. And expert opinions based on inadmissible evidence (like polygraph results) are themselves inadmissible, even where the expert never explictly testifies regarding the inadmissible evidence.

Wednesday, February 08, 2006

First win of the year.

First (published) win of 2006 for the ADO came last Friday. Michelle Davis won reversal of attempted-first degree and attempted-second degree murder convictions in State v. Vann, No. 91,211 (Kan. Feb. 3, 2006). The KSC found two errors: failure to consider Mr. Vann's request for substitute counsel and failure to allow Mr. Vann to represent himself. The district court would not consider Mr. Vann's pro se motions regarding his attorney and possible desire to represent himself. On the first issue, the KSC held that the district court had sufficient notice of Mr. Vann's dissatisfiaction with his attorney to require further inquiry into the possible conflict. Mr. Vann also requested to represent himself. The COA had held that his request was insufficient because Mr. Vann had not served the request, requested a hearing, or raised the matter in pre-trial motions, constituting waiver. The KSC disagreed holding that Mr. Vann's written motion was clear and unequivocal. Mr. Vann was not required to continue to reassert the right to self-representation--the attorneys and district court were on notice and failed to act on the request. Faretta error is structural error and, therefore, the KSC reversed the convictions and remanded for new trial.