Friday, October 27, 2006

Big prior bad acts evidence case

Bad day for defendants at the KSC. I count ten murder convictions affirmed out of ten. Some bad harmless error/prejudice analysis.

Despite the bad results, there was a pretty big prior bad acts evidence ruling in State v. Gunby, No. 91,406 (Kan. Oct. 27, 2006), everyone should read. Justice Beier washed away years of bad law regarding evidence admissible independent of K.S.A. 60-455 and/or res gestae.

Our increasingly elastic approach to the admission of evidence of other crimes and civil wrongs is overdue for correction, as are the two problems that gave rise to the practice of admitting such evidence independent of K.S.A. 60-455.

We hereby state unequivocally that the list of material facts in K.S.A. 60-455 is exemplary rather than exclusive. It may be that other crimes and civil wrongs evidence is relevant and admissible to prove a material fact other than the eight listed. Should this be a district judge's determination; however, the evidence must be subjected to the same sort of explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, and prophylactic limiting instruction we have required when any other K.S.A. 60-455 evidence is admitted.

This enables our return to sensible application of K.S.A. 60-455 and puts an end to the practice of admission of other crimes and civil wrongs evidence independent of it. It recognizes that the list in the statute has always been inclusive rather than exclusive, and that the several ways around application of and safeguards attendant to K.S.A. 60-455 must be abandoned, not only because they lack reliable precedent but because they were never necessary in the first place. Other crimes and civil wrongs evidence that passes the relevance and prejudice tests we have set up and is accompanied by an appropriate limiting instruction should always have been admissible, even if the particular material fact on which it was probative was not explicitly set forth in the statute. It never actually required a specially designed rule to admit it independent of the statute. Rather, such evidence, if permitted to do so, would have fallen squarely within it. We disapprove any language to the contrary in our previous opinions. Henceforth, admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455.

Having explained the correct interpretation of K.S.A. 60-455, we also reject res gestae as a legitimate independent basis for the admission of other crimes and civil wrongs evidence in Kansas. Any other crimes and civil wrongs evidence that may be characterized as res gestae should henceforth be analyzed under K.S.A. 60-455.

This case provides an opportunity to end this particular confusion of thought, and we hereby do so. The concept of res gestae is dead as an independent basis for admissibility of evidence in Kansas. That evidence may be part of the res gestae of a crime demonstrates relevance. But that relevance must still be measured against any applicable exclusionary rules.

So that's the good news. The KSC finally says what some justices and several KSC judges have said for quite a while--the rules of evidence should all apply to all admitted evidence. K.S.A. 60-455 was never a rule of admission, it was a rule of limitation.

The bad news is that the KSC said that failure to give a limiting instruction is not automatically reversible. We have had some luck in these type of cases by trying to make this an instruction issue, not an evidentiary issue. No more.

In short, a trial judge should give such a K.S.A. 60-455 limiting instruction, but the failure to do so, though error, will no longer demand automatic reversal. Where the complaining party neither requested the instruction nor objected to its omission, the failure to give the instruction will be reversible only if clearly erroneous. . . . In the event a K.S.A. 60-455 limiting instruction was sought at trial and refused in error, we will examine the error for harmlessness under the typical rule of K.S.A. 60-261 (error must be "inconsistent with substantial justice").
Overall, I think this is good. Hopefully it will help trial practitioners keep this evidence out in many more cases. And when it comes in, we get de novo review on the admission issue. If there is any sort of prior bad act evidence admitted, be sure to request a limiting instruction. And if the state tries to admit prior bad act evidence not related to a statutory factor, be sure to hold its feet to the fire to explain why the evidence is so material that it should be admitted.

BTW: Apparently, it just goes to show how Rick Kittel is always working on the cutting edge and why we should just do what he says. Here is his suggestion from about 10 months before Gunby was decided.

Tuesday, October 24, 2006

Justice finally

I got a win in Fayne v. State, No. 94,872 (Kan. App. Oct. 20, 2006)(unpublished), remanding for further hearing regarding Mr. Fayne's 1507 motion. Mr. Fayne was originally sentenced to 228 months in prison on October 11, 2000 for a Johnson County agg robbery conviction.

The ADO represented Mr. Fayne in his direct appeal. In the direct appeal, in addition to several conviction issues, Teri Barr argued that a Missouri conviction for "stealing from a person" is most comparable to theft and therefore should be classified as a nonperson felony under the guidelines (which would move Mr. Fayne from "B" to "C" resulting in a presumptive reduction in sentence of 111 months). Although this is purely a legal question regarding criminal history classification, which can be raised for the first time on appeal, see State v. Vandervort, the COA panel in the direct appeal held that it would not reach the issue because it had not been raised at sentencing. State v. Fayne, No. 87,062 (Kan. App. April 11, 2003), rev. denied July 9, 2003.

Mr. Fayne subsequently filed a 1507 motion claiming that his trial attorney was ineffective for failure to object to the Missouri prior conviction at sentencing. The district court held that "stealing from a person" is comparable to a Kansas robbery offense, and therefore that the criminal history classification was correct. On appeal from denial, the COA agreed that, just like Kansas, Missouri has a crime called robbery. The distinctive element of both Kansas and Missouri robbery is taking by force or fear. "Stealing from a person" in Missouri lacks that element. In Kansas, stealing from a person (without force or fear) is pickpocketing, which is theft. The COA at least agreed that stealing from a person is not robbery, is not a person felony, and remanded for further hearing on whether trial counsel had any basis for not objecting to the Missouri conviction.

[Update: the state did not file a petition for review and the mandate issued on November 27, 2006]

[Further update: I represented Mr. Fayne at the evidentiary hearing yesterday, January 29, 2007. His sentencing attorney testified that he had no strategic basis for failing to object to the Missouri conviction and had no recollection of any legal investigation into that matter. Judge Tatum took the matter under advisement to allow for further briefing.]

[Further update: Mr. Fayne was finally resentenced to 107 months on May 7, 2006. Here is my blog entry in re resentencing].

Confrontation win in Tenth Circuit

Madeline Cohen, a federal public defender in Denver, won habeas relief in Stevens v. Ortiz, where the Tenth Circuit found such a serious Confrontation Clause violation that it granted 2254 relief vacating Mr. Steven's first degree murder conviction. Here is a brief summary of the holding:

We must decide here if the Colorado trial court violated Mr. Steven's Sixth Amendment rights when it admitted the custodial confession of Mr. Swiger, a non-testifying accomplice, that also inculpated Mr. Stevens in a murder-for-hire.

We conclude that the reasoning of the Colorado Supreme Court was contrary to clearly established federal law, and the introduction of the accomplice confession violated Mr. Stevens's rights under the Confrontation Clause. Further, the Sixth Amendment error was not harmless.

This case was final before Crawford. Interestingly, though, the Tenth Circuit holds that the four-justice plurality in Lilly v. Virginia, 527 U.S. 116 (1999) is sufficient to show "clearly established federal law" for 2254 purposes and that the Colorado Supreme Court's decision allowing the accomplice's confession without confrontation violates that clearly established federal law. I think it is even more clear now under Crawford. (I hope it is anyway--I just filed a brief on a very similar issue).

Thanks to Paige Nichols for alerting me to this.

AG candidate says you get what you pay for

I really don't plan on blogging much about the current hotly contested AG race. I haven't heard either candidate talk about concerns about wrongful convictions, the importance of fair trials, or any sort of respect for our Constitutions. But I thought this Topeka Capital-Journal article included a sort of interesting passage. LL had criticized PMo for giving too sweet a deal to a defendant and PMo responded saying:
[PMo's] office negotiated plea agreements with [defendants], but the Democrat said the deals were the only way to ensure [defendant] -- who admitted to beating [victim] to death -- would see prison time.

"It was very difficult because it was circumstantial," [PMo] said in a statement. "And we were up against a team of high-powered, high-paid and highly talented attorneys."

I know the public defenders in Olathe and know that they are high-powered and highly talented, but also know that they are not high-paid, so I don't think he is referring to them. I guess I just think this just sort of remark is sort of a back-handed slap against public defenders and/or appointed counsel. (I.e. if you don't pay, you don't get much). Any thoughts? Maybe I'm overreacting.

Wednesday, October 18, 2006

Judge Bengtson to step down

Here is a Topeka Capital-Journal article reporting that Judge Bengtson will step down to avoid further disciplinary action regarding some alleged improper travel reimbursement and dishonesty regarding charging for a marriage ceremony.

Any good judicial candidates in the 8th Judicial District?

[Update: Here is a later Topeka Capital-Journal article reporting on Bengston's guilty pleas and surrender of his law license].

Upward durational departure reversed

Robin Fowler of Bath & Edmonds won reversal of a Johnson County upward durational departure sentence in State v. Ninh, No. 95,192 (Kan. App. Oct. 13, 2006)(unpublished). Johnson County has certainly led the way on upward durational departure sentences after the legislature fixed the Apprendi problem described in State v. Gould.

In Ninh, the state charged that the aggravated battery was committed in a "cruel and heinous" manner, justifying an upward durational departure. The COA reviewed a number of hard 40 cases dealing with "cruel and heinous" findings and held that the facts of the Ninh case might have supported a finding of "excessive brutality" but not "cruel and heinous." But because excessive brutality was not charged, it could not justify an upward durational departure:

[I]t is apparent that the evidence in this case does not support a finding that the crime was committed in a heinous, atrocious, or cruel manner. There was no evidence that Tran was chased by Ninh before being shot or that Tran's gunshot wounds took place over a lengthy period of time. There was no evidence that Ninh tortured Tran before shooting her. The evidence shows that Ninh shot Tran multiple times in her legs during an argument. After shooting Tran, Ninh told her that he had done a bad thing and threatened to kill himself. Tran talked Ninh out of killing himself. Ninh then brought Tran a phone to call for help. As a result of the shooting, Tran suffered extensive injuries which required multiple surgeries and a lengthy rehabilitation. When the hearing occurred, Tran was unable to walk unaided and was taking pain medication and sleeping pills. Although it is clear that Tran suffered great harm as a result of the shooting, the evidence is not sufficient to find that the crime was committed in a heinous, atrocious, or cruel manner.
We have seen a trickle of these upward durational departure cases, post-Gould, mostly out of Johnson County. I have one currently before the KSC. There are a lot of procedural issues in cases dealing with the Gould fix. I've seen a couple of cases were "nonamenability to probation" has been used to impose an upward durational departure. I think this issue and others are fraught with constitutional problems. None of those were apparently raised in Ninh, but they are out there.

[Update: the state filed a petition for review on November 13, 2006]

[Further update: the KSC denied the petition for review and the mandate issued on February 15, 2007]

Tuesday, October 17, 2006

Eating Crow?

This post on Professor Friedman's Confrontation Blog started me thinking about laboratory certificates under K.S.A. 22-3437. In 1999, the KSC rejected a Confrontation Clause challenge to this statute in State v. Crow. The KSC held that under Ohio v. Roberts, the procedure set up in K.S.A. 22-3437 advanced an important state interest and was sufficiently reliable to meet the requirements of the Confrontation Clause. The KSC did construe this statute as merely requiring defense counsel to show grounds for objection that "have an indicia of merit, [are not] imposed for the purpose of delay, and result in a valid issue being contested at trial."

This decision was pretty suspect even before Crawford and courts in other states refused to place any burden on the defendant other than timely request to provide the witness for cross-examination.

But now there is Crawford, which washes away the very rationale used by the Crow Court. If a lab certificate prepared specifically in lieu of testimony is testimonial (which doesn't seem like a big stretch), any substantive statutory limits on cross-examination must be unconstitutional. A defendant has a right to confront the witnesses--the Constitution provides that right and no further showing should be necessary. (By way of example, a defendant can plead not guilty and require the state to suffer the inconvenience of going through a jury trial. I cannot imagine the SCOTUS upholding a statute that said a defendant can only have a jury trial if he or she can make a showing that he or she has a defense that has an indicia or merit, is not for the purpose of delay, and will actually validly contest the prosecution's case).

I have seen one case where a defense attorney had not filed an objection to a lab certificate, but then made a Crawford objection during trial, and the district judge held that K.S.A. 22-3437 was unconstitutional under Crawford. That put the prosecutor in a pretty bad spot because he now did not have evidence to support the essential element of the crime and, in fact, the defendant was acquitted of the drug charge.

So be sure to raise Crawford at any trial where the state is attempting to circumvent the Confrontation Clause using K.S.A. 22-3437.

Just my $.02.

Monday, October 16, 2006

14 apply for KSC

Here is a link to the KSC's press release announcing the list of fourteen that applied for Justice Allegrucci's soon to be vacant seat. A number of the usual suspects applied, including Martha Coffman and Judge Robert Fairchild, who made the short list last time. And a number of the newer COA judges applied: Judge Stephen Hill, Judge Lee Johnson, and Judge Tom Malone. District Judge Steve Leben from Johnson County and District Judge Gregory Waller from Sedgwick County also applied again. I don't know many of the private practictioners on the list.

Be sure to submit your comments about the candidates to the commission if you have them. It's the only way for the nominating commission to really get to know the candidates.

Thursday, October 12, 2006

Reversal based on judicial bias

In U.S. v. Franco-Guillen, the Tenth Circuit reversed a illegal entry conviction after Judge Belot went into a tirade about Hispanic defendants in his courtroom. The government conceded that reversal was required:

The judge's statements on the record would cause a reasonable person to harbor doubts about his impartiality, without regard to whether the judge actually harbored bias against Franco-Guillen on account of his Hispanic heritage. See Liteky v. United States, 510 U.S. 540, 555 (1994) . . . When at the initial sentencing hearing the district judge perceived that Franco-Guillen was lying about his understanding of the plea agreement, the judge stated, "I will not put up with this from these Hispanics or anybody else, any other defendants." The judge compounded the impropriety of his reference to defendant's ethnicity when he then stated: "I've got another case involving a Hispanic defendant who came in here and told me that he understood what was going on and that everything was fine and now I've got a 2255 from him saying he can't speak English." While the district court's statements may well reflect frustration with Franco-Guillen's apparent, albeit unexplored, contradictions between the change of plea hearing and the sentencing hearing, his reference to Hispanics and his use of an example of another Hispanic defendant in discussing Franco-Guillen's perceived lack of truthfulness would cause a reasonable person "to harbor doubts about the judge's impartiality" in this case.

Well, I guess I would harbor some doubts if I was Mr. Franco-Guillen.

Follow up on previous reversal

Here is a Lawrence Journal World article reporting that Joseph Hayden, the defendant in State v. Hayden, who obtained a new trial due to Judge James Smith's misconduct, pleaded as charged and received the same sentence. I blogged about the reversal here.

Monday, October 09, 2006

New ADO faces, new ADO deputies

I've been blogging about a lot of changes in the last few months. We have now hired a number of new people to fill the vacancies.

Ryan Eddinger and Christina Waugh are both 2005 Washburn grads. Lydia Krebs is a 2006 KU grad. This is the first legal job for all three, so we get to mold them in the proper public defender way (wah, ha, ha!).

And we now officially have two new deputies. Janine Cox started with the ADO in 1996 after working for a couple of years at the COA central staff and about five years at the federal district court. Patrick Hennessey Dunn officially started as an attorney with the ADO in 1998, although he had previous experience working on cases at the Defender Project before that. Both Janine and Pat bring a lot of experience to the table. Along with other senior attorneys in the office, it should help us get through this period of high turnover.

Friday, October 06, 2006

Vehicular homicide conviction reversed

Jeff Elder won in State v. Carlson, No. 93,608 (Kan. App. Sept. 29, 2006)(unpublished), reversing a Pottawatomie County vehicular homicide conviction. The COA applied State v. Krovvidi, where the KSC held that before the state can support a vehicular homicide conviction, it must show more than just a traffic violation that led to an accident. In Carlson, the defendant did not see two warning signs regarding an approaching controlled intersection, ran a red light, and hit another car in the intersection killing the driver. The COA held that, under Krovvidi, the conviction must be reversed for insufficiency.

[Update: the state did not filed a petition for review and the mandate issued on November 7, 2006]