Tuesday, May 23, 2006

Doesn't the state constitution mean something?

I just wanted to quickly link to this entry on Sentencing Law and Policy highlighting Justice Stevens' concurrence in this week's Fourth Amendment case where he suggests that states should be encouraged to look at their own state constitutional jurispurdence.

Friday, May 19, 2006

Sex offenses reversed on multiple grounds

Sarah Johnson won in State v. Waddell, No. 92,378 (May 19, 2006)(unpublished), reversing rape, aggravated indecent liberties, aggravated criminal sodomy, and crimital threat convictions from Lyon County. The COA followed State v. Henderson, (blogged here)which held that admission of several of the child victim out-of-court statements under K.S.A. 60-460(dd) violated the Confrontation Clause. The state also argued that pursuant to State v. Meeks, Mr. Waddell had forfeited the right to confront. The district court had not considered forfeiture, but the COA reviewed the record and found that the state had not proved by a preponderance of evidence that Mr. Waddell had caused the child victim to be unavailable. As a result, the COA reversed and remanded for new trial.

As if that wasn't enough, the COA also found that several prior bad acts were improperly admitted under K.S.A. 60-455. The state argued that the evidence should come in to prove intent, plan, and preparation. The COA analyzed and rejected each proferred basis and held that "the error in admission of this testimony provides another basis to reverse Waddell's convictions."

[Update: the state filed a PR on June 14, 2006.]

[Further update: on June 25, 2007, the KSC ordered the parties to respond regarding whether State v. Henderson (blogged about here) is controlling in this case.]

[Further update: the KSC finally denied the state's PR on October 1, 2007, more than 16 months after Mr. Waddell won in the COA! Here is the Emporia Gazette's coverage of the denial.]

[Post-appeal update: here is the Emporia Gazette's coverage of the grant of Mr. Waddell's change of venue motion for the retrial.]

Tuesday, May 16, 2006

Wins in Johnson County

I've seen many of my public defender colleagues here at ITAP and learned that the Johnson County office has been keeping many cases from appeal by winning acquittals! Michael McCullough won an aggravated assault case in State v. Flenoy, based on general denial. And Byron Cerrillo won a rape case in State v. Young, based on a consent defense. Be sure to let me know about big wins in district court and links to any articles that would be of interest to the defender community, so that I can share the news!

Monday, May 15, 2006

ITAP week

Well, I won't probably blog much this week. I am working with Michael Kaye at Washburn in their Intensive Trial Advocacy Program. I feel a little like a fish out of water when it comes to trial litigation, but I think an appellate perspective can be useful. At least it's useful for me. And it's good to see a lot of my defender colleagues.

Monday, May 08, 2006

D'oh! Wrong house!

In Harman v. Pollock, a section 1983 case from Utah, the Tenth Circuit considered whether plaintiffs had established a sufficient constitutional claim to get past summary judgment. The police had a warrant for a different address, but entered plaintiff's garage apartment and detained them for an hour and a half. The Tenth Circuit agreed that the police officers enjoyed qualified immunity for the initial entry, but that there were facts in dispute regarding the length of the resulting detention after the police discovered their mistake. There is some good Fourth Amendment language in this case:
We recognize that "[i]t is only after the police begin to execute the warrant and set foot upon the described premises that they will discover the factual mistake and must reasonably limit their search accordingly." Garrison, 480 U.S. at 89 n.14. Although the officers were acting under the auspices of what they believed to be a valid warrant, we have determined that material facts remain in dispute as to the reasonableness of the detention of the plaintiffs and search of the garage apartment. The Supreme Court consistently reminds us that "[a] generalized interest in expedient law enforcement cannot, without more, justify a warrantless search." Georgia v. Randolph, No. 04-1067, 2006 WL 707380, at *8, n.5 (March 22, 2006); see Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971) ("The warrant requirement . . . is not an inconvenience to be somehow 'weighed' against the claims of police efficiency").
Does anyone know what kind of damages plaintiffs get in this kind of case? I have also wondered what the hallmarks of a good 1983 claim are (i.e. when should we be referring Fourth Amendment wins to someone?).

Vouching is vouching

Sometimes, from the way prosecutors talk, it seems like the KSC must be the only court in the world that has ever thought that prosecutors ever engage in misconduct. In U.S. v. Harlow, although deemed harmless, the Tenth Circuit held that introduction of a plea agreement including a truthfullness provision coupled with evidence that the government had fulfilled its end of the bargain, constituted improper vouching:
Sections 16(d) and 13 are more problematic. Section 16(d) clearly states the government will recommend a downward sentence departure if the witness "fully, completely, and truthfully" testifies and that the reduction will be "due to his ongoing truthful testimony and truthful cooperation with law enforcement authorities." This provision coupled with the introduction of the government's Rule 35(b) motion implies that the government has verified the truthfulness of the witness and believes that his ongoing testimony is truthful, which is why it made a motion for a sentence reduction. The jury could reasonably infer that the government would not have recommended such a downward departure if it had not independently verified the truthfulness of the testimony. This conclusion would be undermined if the government recommended a sentence reduction for testimony given in an unrelated event, but such is not the case here. The three witnesses were given sentence reductions in exchange for their testimony in a series of trials all relating to the same underlying methamphetamine drug conspiracy. The combination of section 16(d) with the introduction of the government's Rule 35(b) motions amounts to prosecutorial vouching.

Section 13 only compounds the matter. Not only does it reiterate the role of the government in recommending sentence reductions for truthful testimony, it also implicates the judge in the verification process.

Misconduct is misconduct. Maybe the KSC is more willing to give teeth to the rules regarding vouching by lawyers, but the misconduct is the same.

Public defender in the spotlight (a good spotlight)

The Hutch News had a nice article about Tim O'Keefe who is off to make his fortune in the Rocky Mountains. I have enjoyed working with Tim in many conversations and, as this article does a pretty good job summarizing, his diligence will be missed.

[Note: the link to the Hutch News article expired and I have removed it.]

Thursday, May 04, 2006

The Lt. Columbo gambit

Randall Fisher won in State v. Hayes, No. 94,313 (Kan. App. April 28, 2006), reversing a Harvey County drug conviction based on a Fourth Amendment violation. In this case, the officer had stopped a driver for speeding early one morning and had checked her ID and decided to give her a warning. He told the driver that he was giving her a warning and gave her documents back. Then he asked if he could ask her a few questions. (This has been coined the "Lt. Columbo gambit" by Professor LaFave). The driver said yes and the encounter extended until the driver consented to the search and officers found drugs.

The COA acknowledged that the officer had returned the driver's documentation, it rejected the state's claim that the encounter had become consensual:

The facts here present more an even more compelling basis to find that a reasonable person would not have felt free to go. Here, when Officer Hall returned Nichols' documentation, she was not even in her vehicle. Rather, in order to receive her warning citation, Nichols was required exit and stand outside of her vehicle in the presence of two officers and in front of both patrol vehicles, with emergency lights flashing. Further, instead of telling Nichols she was free to go, or that he had nothing further for her, Officer Hall told Nichols "as far as that [is] concerned we [are] done."
We believe that under the circumstances, this statement would imply to a reasonable person that other matters remained to be addressed, particularly where, as here, the statement was followed by the officer's offer to provide Nichols with directions. Significantly, even though this offer was accepted by Nichols, Officer Hall did not immediately give her directions or walk her back to her vehicle. Rather, he asked her if he could ask her a few more questions.

Under the totality of the circumstances, we conclude that at the time Officer Hall returned Nichols' documentation and issued her a warning citation, a reasonable person would have felt additional matters remained to be addressed before the encounter could be terminated and would not have felt free to go. We therefore hold that Nichols' agreement to answer additional questions was not consensual and Officer Hall's questioning of Nichols following the return of her documentation exceeded the scope of the traffic stop.

I have seen a lot of this Lt. Columbo gambit lately, (in fact I have the driver's case on appeal right now!). Keep this case in mind if you are dealing with this type of state's argument.

[Update: the state did not file a petition for review in this case and the mandate issued on June 1, 2006].

Maybe you can collaterally attack a prior conviction?

I don't usually want to deal with DUI cases on this blog (personal preference). But I did want to mention an interesting win by Michelle Davis in State v. Elliott, No. 92,853 (Kan. April 28, 2006), reversing a DUI conviction. The interesting part of this case is that the KSC allows Mr. Elliott to challenge, on a jurisdictional basis, a prior DUI conviction that is a predicate for an enhanced sentence. The state argued that a defendant could not collaterally attack a prior conviction except for Gideon error. But the KSC held that a conviction entered without subject matter jurisdiction is void and concluded that
A misdemeanor conviction for DUI may be challenged when it is included in the defendant's criminal history for the purpose of enhancing the sentence for a felony DUI conviction.
I don't know why this would particularly be limited to DUI cases. Any prior conviction listed in a PSI could be challenged for lack of subject matter jurisdiction. I guess this is just another reason to really scrutinize prior convictions that make a difference for defendant's at sentencing.

Bunyard finally decided!

Paige Nichols and Dan Monnat won in State v. Bunyard, No. 88,546 (Kan. April 28, 2006), reversing a Sedgwick County rape conviction and remanding for new trial. This case is notable just for the delay between argument (January 26, 2004) and the decision from the KSC (April 28, 2006). The appeal was docketed more than four years ago!

Anyway, on the merits, the KSC found misconduct because the prosecutor argued that any force, including the force used to pentrate was sufficient for rape. The COA had found that the statement was misconduct, but harmless. The KSC applied the three part test from Tosh and concluded that the misconduct required reversal. In particular, the KSC noted that there was no evidence of ill will on the part of the prosecutor, but reversed under the other factors.

The Court also considered the claim related to a jury question regarding withdrawal of consent post-penetration. The jury asked a question whether such facts can constitute rape. The prosecutor asked that the jury be told "yes" and the defendant asked that the jury be told "no." The district court referred the jurors back to the instruction. The KSC held that
Under the circumstances of this case, we conclude that the trial court's answer to a question posed by the jury was insufficient to properly instruct the jury how to consider this unique case of first impression. The problem with the trial court's response is that it failed to address the question asked by the jury.
That is a pretty big holding in itself. In this somewhat unique circumstance, it was insufficient to simply rely on the instructions already given--the district court should have responded to the jury's question in a real way. The KSC sided with states that have said a rape conviction can be proved by showing post-penetration withdrawal of consent, but went on to hold that
In the case of consensual intercourse and withdrawn consent, we agree that the defendant should be entitled to a reasonable time in which to act after consent is withdrawn and communicated to the defendant. However, we conclude that the jury should determine whether the time between withdrawal of consent and the interruption of intercourse was reasonable. This determination must be based upon the particular facts of each case, taking into account the manner in which consent was withdrawn.
I guess good things come to those who wait, Paige and Dan!