Wednesday, March 29, 2006

When you've been in prison for 18 months, you may not be welcome at your old place

Sam Kepfield and Sandra Carr won reversals in consolidated cases State v. Porting and State v. Angel, Nos. 91,631 & 91,667 (Kan. March 24, 2006), overturning possession convictions out of Reno County. The COA had affirmed 2-1, with Judge Greene dissenting. The KSC agreed with Judge Greene and rejected the state’s claim that a warrantless search was justified by the common authority doctrine or the apparent authority doctrine. The KSC held that noted that the common authority doctrine should focus on the co-inhabitant’s reasonable expectations or assumption of risk. Interestingly, the KSC cited without elaboration the very recent (two day old) pronouncement in Georgia v. Randolph, where the SCOTUS held that where a co-inhabitant explicitly refuses consent to search, consent of another co-inhabitant is insufficient to justify a warrantless search for evidence.

The KSC also held that the "apparent authority" rule could not save this warrantless search:
the apparent authority rule will save a warrantless search only where officers made a mistake of fact, not where they made a mistake of law. Officer Mora was not mistaken about the facts. . . . Rather Officer Mora reached the erroneous legal conclusion that the facts authorized Hanson to give a valid consent. Under these circumstances, the apparent authority rule does not save the search.
I argued this case at the KSC and the Court was very disconcerted by the paltry state of the record where the state had the burden of proof at the suppression hearing. The KSC agreed with Judge Greene that the COA majority erred by relying on the "lack of evidence that Hanson had permanently surrendered control of the premises, that his access had been restricted, or that he was not welcome. It was improper to draw inferences from the lack of evidence in the record." This is a good cite for appeals from adverse suppression findings.

Sex offenders register in Topeka, not Wichita

Nathan Webb won in State v. McElroy, No. 92,968 (Kan. March 17, 2006), reversing a conviction for failure to register as a sex offender from Sedgwick County. The KSC reversed on two bases: defective complaint and improper venue. The first of these bases is a little surprising because the appellate standard of review is pretty bad for defective complaint issues raised for the first time on appeal (as compared with a great standard of review if raised in the district court by a motion to arrest judgment) and even more surprising because Nathan actually hadn’t raised it as a defective complaint issue (because it is a pretty bad standard, see supra). But the KSC morphed Nathan’s instruction issue and noted that the complaint is "so defective that it does not, by an reasonable construction, charge an offense for which the defendant is convicted," and vacated the conviction.

On the venue issue, Mr. McElroy was alleged to have moved from Sedgwick County to California. The KSC also held that venue was not proper in Sedgwick County because the elements of failure to register include a change of address and failure to notify the KBI. Shawnee County (where the KBI repository is located) would clearly have venue with regard to failure to notify the KBI. But the KSC held that moving from a county is only a precursor to the other element: a change of address. Because no change of address occurred in Kansas, venue in Sedgwick County was inappropriate.

There is some pretty good language in McElroy on venue issues as well:
We note that the defendant's failure to object to venue at trial is irrelevant because venue is a matter of jurisdiction. Lack of jurisdiction is not a waivable defense and may be raised for the first time on appeal. Although venue is a question of fact to be determined by the jury, the existence of jurisdiction is a question of law over which this court's scope of review is unlimited. To the extent this case requires statutory interpretation, such interpretation also raises issues of law subject to de novo review on appeal. [citations omitted.]

Tuesday, March 28, 2006

Persons present must be called to testify.

Sarah Johnson won in State v. Wilson, No. 93,648 (Kan. App. March 17, 2006), overturning two counts of forgery and a count of attempted theft by deception out of Saline County. Although a split majority rejected a multiplicity claim, the COA reversed based on a hearsay violation. During redirect examination, the prosecutor elicited statements from an out-of-court declarant. When defense counsel entered a hearsay objection, the state indicated that the witness was present and the district court overruled the objection. Although the declarant was apparently in the courthouse, she was never called to testify. The COA noted that under K.S.A. 60-460(a) (the persons present exception) the declarant must testify either before or after the admission of the out-of-court statement. It is important to note in cases like this, it is insufficient that the defendant might have called the witness–cross-examination is different than direct examination. And the COA also held that defense counsel’s solicitation of further damaging hearsay statements on cross-examination of the officer did not render the error harmless:

this testimony did not occur until after the State offered and the court admitted improper hearsay statements, its content should not be considered in evaluating the issue of harmless error. We know of no rule that provides that if the prosecutor commits reversible error on redirect examination, it can be turned into harmless error on cross-examination.
This is a pretty important point on harmless error analysis.

[Update: The state did not file a petition for review and the mandate issued in this case on April 20, 2006.]

Statutory speedy trial reversal

Shawn Minihan won in State v. Hughes, No. 93,554 (Kan. App. March 17, 2006) (unpublished), reversing several possession convictions out of Reno County. The issue on appeal was the violation of the speedy trial statute. The district court had denied the motion to dismiss finding that Mr. Hughes’ motions to suppress had caused delay. But the COA disagreed:

Hughes filed no motions after May 25, 2004, and there were no motions hearings held after June 21, 2004. The cause for the delay in Hughes’ trial is largely a mystery. The record on appeal is silent as to the reason for the rest of the delay, with the exception of the 8 days due to the absence of the State’s witness.
After excluding 27 days for the time between the filing of Mr. Hughes motions to suppress and the hearings on those motion, the COA found that 106 days from arraignment were chargeable to the state, entitling Mr. Hughes to discharge.

[Update: The state did not file a petition for review and the mandate issued in this case on April 20, 2006.]

Just because it's unfair for both doesn't make it fair

Bob Kuchar won in State v. Hayden, No. 88,650 (Kan. March 17, 2006), overturning a conviction for second-degree murder and attempted second-degree murder out of Franklin County. The KSC reversed based on judicial misconduct. I will leave it to you to review the repeated improper comments and interruptions listed in the opinion. The prosecutor candidly did not dispute that the judge acted improperly, but noted that he was just as much a jerk to the prosecutor as to defense counsel, thereby making it impossible to establish bias or prejudice. The KSC acknowledged that precedent supported this position, but ultimately concluded that a trial that is not fair for either the defendant or the prosecutor is still unfair for the defendant.

We conclude, however, that such obvious bias is not the only way in which judicial misconduct can cause prejudice to a criminal defendant's substantial right to fair trial. A trial infected with intimidation and fear also is unfair to the person whose freedom is at stake. And the fact that the State's ability to present its case was impaired as well does not excuse or diminish the prejudice caused a defendant by a judge's misbehavior.
That could be an important holding in some other areas. I have raised issues about instructions that I have claimed to be improper dynamite-type instructions, but the case law says "well, even if they are coercive, they are equally coercive and might just as easily coerce an acquittal." The KSC recognizes the old maxim: two wrongs don’t make a right.

Wednesday, March 15, 2006

Crawford applies to 460(dd)

Christopher Hughes and Roger Falk won in State v. Henderson, No. 92,251 (Kan. App. March 10, 2006), overturning an agg indecent liberties conviction out of Sedgwick County. The district court had admitted videotape statements from a three-year old child witness taken by detectives after a medical exam; the child witness did not testify at trial. The COA held that pursuant to Crawford v. Washington, these statements were testimonial and admission violated the Sixth Amendment. The COA adopted an objective test for whether statements are "testimonial":

Statements given to police and/or child protection workers have been the subject of a number of cases post-Crawford. In Crawford, the Supreme Court noted that statements to police officers during the course of interrogations "fall squarely" in the category of testimonial statements. 541 U.S. at 52-53. The Court also noted it used the term "interrogation" in a colloquial rather than a technical, legal sense. 541 U.S. at 53 n.4. Thus, a witness' recorded statement knowingly given in response to structured police questioning is "undeniably testimonial."

State and federal courts have held that interviews of purported child abuse victims conducted by child protection agencies in conjunction with law enforcement officials are testimonial under Crawford. See People v. Sisavath, 118 Cal. App. 4th at 1402 (child's statement to forensic interviewer held to be testimonial); Contreras v. State, 910 So. 2d 901 (Fla. App. 2005) (videotaped statement to child protection team testimonial); In re T.T., 351 Ill. App. 3d 976, 990, 815 N.E.2d 789 (DCFS process of investigating child sex abuse allegations sufficiently conducted with an eye toward prosecution renders 7-year-old's statement testimonial).
The COA also rejected the state's fall-back position that Mr. Henderson forfeited his Confrontation right:

Causation between the action of the defendant and the witness' absence appears key. As noted by the Supreme Judicial Court of Massachusetts:

"[T]he causal link necessary between a defendant's actions and a witness's unavailability may be established where (1) a defendant puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure; (2) a defendant physically prevents a witness from testifying; or (3) a defendant actively facilitates the carrying out of the witness's independent intent not to testify." Commonwealth v. Edwards, 444 Mass. 526, 541, 830 N.E.2d 158 (2005). Other than the murder of the declarant, the causative factor has consistently been some act independent of the crime charged. For example, in forfeiture cases involving threats or coercion, the threats or coercion occurred after the events giving rise to the criminal charges. See, e.g., United States v. Montague, 421 F.3d 1099, 1101 (10th Cir. 2005) (wife's statements to police could be used at trial when husband/defendant violated no contact order and met with wife several times prior to trial); Steele v. Taylor, 684 F.2d 1193, 1199 (6th Cir. 1982), cert. denied 460 U.S. 1053 (1983) (witness was under the control of the defendants who had procured her refusal to testify); Commonwealth v. Edwards, 444 Mass. 526 (defendant's action prior to trial in influencing or colluding with witness to avoid testimony was enough to forfeit confrontation rights).

In our case there is no evidence of any acts by Henderson after the alleged assault. The State cites no case to us where the doctrine of forfeiture has been applied solely due to declarant's age. To accept the State's argument would severely limit the rights granted by the Sixth Amendment to the United States Constitution. It would open an exception to a constitutionally granted right that we are not prepared to adopt.

I expect that, given the current flux in Confrontation Clause litigation, we will probably be revisiting these issues in the upcoming year.

By the way, Sarah Johnson has noted that there is an entirely statutory objection to videotape testimony being admitted when the child witness is "not available." K.S.A. 22-3433 and 22-3434 provide the criteria and procedure for use of videotape of child witness statements. K.S.A. 22-3433(a)(9) requires, among other criteria that "the child is available to testify." If the district court finds that the child is not available to testify, videotape cannot be used under the statute. K.S.A. 22-3433 also makes admissibility turn on a finding that "the statement is not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the child's statement and not made solely as a result of a leading or suggestive question." This opens the door for a motion in limine on questioning technique, for which practitioners probably always need some expert help.

[Update: The state filed a petition for review on April 7, 2006. Mr. Henderson filed a cross petition for review on April 10, 2006].

[Further update: The KSC granted the state's petition for review and Mr. Henderson's cross petition for review on September 19, 2006. This case will likely be argued in December 2006 or January 2007].

[Further update: The KSC agreed with the COA on June 22, 2007 affirming the COA decision. Here is the case. Here is my blog entry on the case.]

The Good and The Bad

Howard Pincus, a federal public defender in Denver, won in U.S. v. Laughrin, 04-2207 (10th Cir. March 2, 2006), overturning federal weapons charges from New Mexico. The police officer saw Mr. Laughrin at a gas station and had had 10 prior contacts with him for traffic violations, including driving on a suspended license on more than one occassion, and other warrants; these contacts were at least 22 weeks in the past. The officer said he followed Mr. Laughrin for about a half mile and then stopped him. The officer admitted he had observed no violations that day, but stopped him based on his driving record.

The Tenth Circuit found the stop improper:
It might be argued that Officer Riley had reasonable suspicion to stop Mr. Laughrin based not on his criminal history of driving without a valid license, but on the ongoing violation of driving without a valid license--that Mr. Laughrin was still engaged in the same offense that he had been stopped for before. But whether it is reasonable to believe that Mr. Laughrin has continued to drive without a license depends on the length of time since he was last found to be driving without a license. Other circuits have upheld stops for driving without a license based on the officer's knowledge that the motorist had no valid license a week before, United States v. Hope, 906 F.2d 254, 258 (7th Cir. 1990), or 22 days earlier, United States v. Sandridge, 385 F.3d 1032, 1036 (6th Cir. 2004). Twenty-two days is significantly less than 22 weeks. Had Officer Riley testified to the length of the prior suspension, we might be able to affirm the district court's determination that he had reasonable suspicion. Otherwise, however, Officer Riley's information was too stale to justify stopping Mr. Laughrin on the belief that a suspension was still in effect.
Good analysis.

Friday, March 10, 2006

You mean the Constitution says you get a speedy trial?

Sandra Carr and Matt Edge, won in State v. Mortiboy, No. 92,608 (Kan. App. March 3, 2006)(unpublished), overturning a couple of possession convictions from Gray County. The main issue was a Sixth Amendment constitutional speedy trial violation. I think I can count on two or three fingers all of the reversals based on constitutional speedy trial since I've been at the ADO.

There were several facts that were in Mr. Mortiboy's favor: he had been a truck driver and as a condition of bond was not allowed to drive a truck; the preliminary hearing was continued pending receipt fo a lab report, but even after the lab report was filed with the court, nothing happened for more than seven months, without explanation; and the finally scheduled preliminary hearing had to be continued after defense subpoenas were returned unserved with a notation of "called off by Gray County Attorney". On the other hand, Mr. Mortiboy had been released on bond for most of the pretrial delay (and was released on appeal bond during appeal). In a particularly good passage, the COA observes the following:

While there is no evidence in this case to show that the State deliberately delayed the preliminary hearing to hamper Mortiboy or accomplish some other questionable purpose, a delay accomplished by inaction or indifference is equally unacceptable.
The COA also found police violated the Fourth Amendment due to a search of Mr. Mortiboy's pockets after stopping his truck. The deputy testified that he observed Mr. Mortiboy throwing things inside the truck and saw Mr. Mortiboy unsuccessfully attempt to light the wrong end of his cigarette. The COA had no problem with the deputy conducting a Terry stop, but held that the search of the pockets exceeded the scope of that limited stop: "It is apparent that [the Deputy's] primary purpose in searching Mortiboy's pocket was to preserve evidence."

[Update: the state did not file a petition for review and the mandate issued on April 6, 2006.]

Thursday, March 09, 2006

Good week for the Third!

Two big wins from the Shawnee County Public Defender Office last week. First, Cindy Sewell got an acquittal in State v. Quiralte, on the charge of battery against a LEO. Then Stacey Donovan and Wendell Betts got an acquittal on State v. Hernandez, on the charge of involuntary manslaughter. This Topeka Capital-Journal article starts off:

A Shawnee County District Court jury took less than 90 minutes Wednesday to acquit Harold Ernest Hernandez of killing his best friend when he punched him on Oct. 14 as the two argued in a North Topeka neighborhood. The jury of 10 women and two men delivered the not guilty verdict at 4 p.m. A teary-eyed Hernandez hugged Stacey Donovan and shook hands with Wendell Betts, who were his public defenders.

Be sure to let me know about good stories like this from district court--I like to know and I like to pass them on!

Saturday, March 04, 2006

Is it really an “arrest” just because there's an arrest warrant?

Cory Riddle won in an unpublished case in State v. Pittman, Appeal No. 91,937 (Kan. App. March 3, 2006)(unpublished), overturning convictions for possession out of Wyandotte County. An officer had legally pulled over Mr. Pittman, who told the officer that he may have an arrest warrant. The officer conducted a warrant check and, in fact, Mr. Pittman did have a warrant from Kansas City, Kansas municipal court. The officer then searched Mr. Pittman and found some drugs. The state justified this as a "search incident to arrest." But the Court observed that (1) the officer testified that, even after learning of the warrant for Mr. Pittman's arrest, he still only intended to issue a summons and release Mr. Pittman to go to work. Further, at oral argument the prosecutor confirmed that there was a policy that allows the release of individuals who are stopped by the Kansas City, Kansas Police Department, found to have a traffic warrant, and are "arrested," searched, and promptly released without execution of the warrant.

We can see no purpose for [the officer's] claimed arrest pursuant to this policy other than to justify an incidental search with the hope of inadvertently discovering contraband. In this context, [the officer's] detention of Pittman was a mere pretext for a valid arrest. A search incident to an invalid arrest is violative of the plain language of K.S.A. 22-2501 ("When a lawful arrest is effected . . . .") We hold, as a matter of law, that Pittman was not under arrest, as defined in K.S.A. 22-2202(4) for purposes of K.S.A. 22-2501 at the time [the officer] search his pocket.
I guess it would be smart to know the police policy in the relevant jurisdiction in this regard. I wonder if there are other jurisdictions that have a policy of not arresting people on certain types of warrants?

[Update: the state did not file a petition for review and the mandate issued April 6, 2006.]

The "Zone" of Victory

We had a published loss a couple of weeks ago, but there was some good law buried in the decision. In State v. Ackward, No. 91,755 (Kan. Feb. 10, 2006), the KSC affirmed a felony murder conviction, including some pretty bad (but not really new) holdings on voluntariness of statements. But there was also a suppression issue related to the seizure of a gun found using other illegally obtained statements. The district court held that the gun would have been found anyway and admitted it under the "inevitable discovery" doctrine. Mr. Ackward argued that it would have only been discovered after another illegal search, albeit one he would have no standing to challenge. The state did not dispute the illegality of the "inevitable" search, but only that Mr. Ackward could not have challenged that search. The KSC engaged in a detailed review of a Seventh Circuit case, U.S. v. Johnson, 380 F.3d 1013 (7th Cir. 2004):

In the present case as in Johnson, the challenged evidence was seized in violation of the defendant’s rights. In this case, the gun was seized in violation of Ackward’s right to counsel. The State’s argument, like the federal government’s, is that the violation is cancelled by the fact that the evidence would have been discovered as a consequence of the illegal search, to which defendant could not object. . . . Hence, as in Johnson, the prosecution’s position is that, because there were two illegal searches, Ackward cannot invoke the exclusionary rule against the use of the evidence so obtained. As we have seen, the Johnson court could see not sense in the government’s position and held that the inevitable discovery of evidence by unlawful means did not render it admissible. We agree. The district court erred in admitting the gun into evidence.
Unfortunately, the KSC went on the apply (the wrong) harmless error test and therefore did not reverse on this ground. But this is still what we call a zone of victory case–one in which we lose, but there is some good law.

Friday, March 03, 2006

I can't afford to be charged with a crime?

I am moving one of Mark Dinkel's comments into a main blog entry. I would like to see this blog be a forum for different ideas. If you have any ideas, don't hesitate to e-mail them to me.
At the trial level, I will begin focus on the constitutionality of K.S.A. 22-4529. This is the statute that began the $50 BIDS fee in 1997 and then quickly doubled it to $100 by 2001. The statute provides that "(a)ny defendant ENTITLED (my emphasis) to counsel . . . shall pay an application fee . . . ." In a number of counties, including Saline, the defendant ENTITLED to counsel is often required to pay a $100 fee prior to bonding from jail. In other words, if you exercise the FUNDAMENTAL constitutional right to counsel (see Gideon v. Wainwright) you may be sacrificing your constitutional right to bail and your pretrial freedom. The more I think about it, the more this fee reminds me of the poll tax declared to be a violation of the equal protection clause in Harper v. Virginia State Board of Elections. However, unlike the poll tax application to everyone seeking to cast a vote, the 22-4529 fee applies only to those claiming poverty.
In a similar vein, Shawn Minihan is currently litigating an issue with regard to ordering BIDS reimbursement of attorney fees and costs. In State v. Robinson, a divided CoA held that such reimbursement can be ordered without considering ability to pay. The KSC took that case on review and Shawn argued it last docket. So keep an eye out on that issue as well.

But it's legal in Colorado!

Thanks to Gene Parrish who tipped me on a nice Fourth Amendment win by Kay Huff in the Tenth Circuit in U.S. v. Edgerton. Here is a summary of the decision:
The seminal issue in this case is whether the unobscured temporary Colorado registration tag, displayed consistent with Colorado law in the rear window of Defendant's vehicle but illegible from a distance due to nighttime conditions, constituted a violation of Kansas law, thereby justifying Defendant's continuing detention ­ a detention which led to Defendant's consent to search and discovery of the contraband. For reasons that follow, we think not, and hold Defendant's continuing detention exceeded the permissible scope of the stop contrary to the Fourth Amendment.
Nice win Kay!