Tuesday, May 23, 2006
Friday, May 19, 2006
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
Monday, May 15, 2006
Monday, May 08, 2006
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?).
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.
[Note: the link to the Hutch News article expired and I have removed it.]
Thursday, May 04, 2006
The COA acknowledged that the officer had returned the driver's documentation, it rejected the state's claim that the encounter had become consensual:
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.
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.
[Update: the state did not file a petition for review in this case and the mandate issued on June 1, 2006].
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.
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!