Thursday, December 27, 2007

Bad diversion agreement

Ryan Eddinger won in State v. Moses, No. 96,897 (Kan. App. Dec. 21, 2007), reversing a Douglas County forgery conviction and remanding for further proceedings. Moses had entered into a diversion agreement and, after violating the terms of the agreement, was convicted by trial on stipulated facts. On appeal, the COA agreed that the diversion agreement did not comply with some fairly strict requirements imposed by statute. Specifically, the agreement failed to include an explicit waiver of any right to a preliminary hearing:
While K.S.A. 22-2909(a) lacks negative language and does not specify a penalty or other consequence for noncompliance, strict compliance with the provision is essential to the preservation of the rights of parties affected. The requirement that the defendant specifically waive certain rights is not simply a technical or procedural requirement, but a condition required for the formation of an enforceable diversion agreement. Accordingly, the term "shall" as used in K.S.A. 22-2909(a) is mandatory rather than directory.

Because the diversion agreement did not contain a specific waiver of Moses' right to a preliminary hearing, as mandated by K.S.A. 22-2909(a), we conclude the agreement was invalid and unenforceable.
As a result, the parties are placed back to their pre-diversion agreement status. This is a standard diversion agreement in Douglas County, so anyone there who would like to have it set aside probably has a good argument. And other practitioners should look closely at the diversion agreement used in other jurisdictions. I expect that Douglas County is probably not the only county with such a deficiency.

[Update: the state did not file a PR and the mandate issued on January 24, 2008.]

Friday, December 21, 2007

Miranda in Tenth Circuit

J. Lance Hopkins won in U.S. v. Revels, No. 06-5223 (10th Cir. Dec. 20, 2007), successfully defending an Oklahoma federal district court's Miranda suppression order in a government interlocutlory appeal. Here is coverage from Decision of the Day Blog. The Tenth Circuit reviewed the undisputed facts surrounding the execution of a state search warrant and Revels' subsquent questioning:

we conclude that a reasonable person in Revels’ position would have considered herself under a degree of restraint equivalent to formal arrest and that officers should have extended Miranda advisements prior to their questioning. The undisputed facts demonstrate that the officers’ actions created the type of coercive environment that Miranda was designed to address.

Speedy trial reversal in Tenth Circuit

Fred Lynn won in U.S. v. Williams, No. 06-5036 (10th Cir. Dec. 20, 2007), reversing an Oklahoma federal drug and firearm convictions based on a violation of the Speedy Trial Act:

Even assuming that at least some of the serious deficiencies in the district court’s three continuance orders could be ameliorated by subsequent on-the record findings, the court’s comments here are not up to the task. The record is completely devoid of any ends-of-justice findings, either oral or written, bolstering the findings in the three orders.

On a purely stylistic note, the opinion uses charts and color graphs. I'm guessing Paige is duly impressed! Here is coverage on the Decision of the Day Blog.

Thursday, December 20, 2007

Consent not voluntary

David Harger won in State v. Christner, No. 98,065 (Kan. App. Dec. 7, 2007) (unpublished), affirming Judge Dickinson's suppression order in a Harvey County drug prosecution. This was another in a long, back-and-forth series of decisions regarding whether a person would feel free to leave during a traffic stop. Under the circumstances of this case, the COA agreed with Judge Dickinson:

The police told Christner he was free to go but then asked to speak with him further. This question was in the presence of three armed officers, two of whom were close by and had previously made direct contact with Christner. It was a late-night meeting on the side of the road near two police cars with emergency lights flashing. With these facts, we hold this meeting between Christner and the police was nonconsensual and his consent to search his car was involuntary.
. . . .

Christner gave his consent to search in the involuntary atmosphere we have described. As the district court ruled, we too cannot hold his consent to be free from coercion or duress. Therefore, we conclude the consent to search was similarly involuntary. Although there was clear testimony that consent was explicitly given, there is no substantial evidence that it was given freely and without subtle, yet obvious duress.

Here and here and here are previous posts on similar types of cases. Although the Thompson case was a set-back in this area of litigation, a lesson learned is facts are everything in these cases. Keep bringing out details at suppression hearings.

[Update: the state did not file a PR and the mandate issued on January 10, 2008].

No infraction, no legal stop

Mike Sheahon won in State v. Ryan, No. 98,027 (Kan. App. Nov. 21, 2007) (unpublished), affirming Judge Hebert's suppression order in a Saline County drug prosecution. In a pretty short opinion, the COA notes that there was disputed evidence whether the pretextual infraction occurred at all:
Here, the trial court's ruling that the State failed to meet its burden could be construed as a negative finding of fact. See City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997).

In the present case, the trial court viewed the live testimony and that presented by the videotape of the traffic stop. The trial court weighed the evidence and had serious concerns about whether “an actual violation even occurred here.” There was substantial competent evidence, though conflicting, to support the trial court's findings and conclusions the motion to suppress should be granted.
The cite to Norton is sort of interesting. As I've noted before, in a state's appeal of a suppression order, where the state had the burden at the district court, the standard of review should be that for a negative finding, which Norton says requires "proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice." But even in Norton, the appellate court seems to mix this with the substantial competent evidence standard, as did the Ryan court. A little confusing, but the same result in both cases.

[Update: the state did not file a PR and the mandate issued on December 26, 2007].

Tuesday, December 18, 2007

In handcuffs? Being taken to the police station? You're under arrest.

Daniel Walter won in City of Norton v. Wonderly, No. 97,889 (Kan. App. Dec. 14, 2007), reversing a Norton County DUI conviction on Fourth Amendment grounds. The COA held that that handcuffing and transporting the suspect constitutes arrest:
we conclude that Wonderly was under arrest when Morel, without seeking Wonderly's consent, transported Wonderly in handcuffs to the sheriff's office to perform field sobriety tests. Under the totality of the circumstances, a reasonable person in Wonderly's position would have believed he or she was under arrest at that point. Regardless of what interests Morel may have had in continuing his investigation, by taking Wonderly to the sheriff's office in handcuffs, Morel performed an act indistinguishable from a traditional arrest. This act violated Wonderly's Fourth Amendment rights unless Morel had probable cause to arrest Wonderly for DUI at the scene of the traffic stop.
Seems like a no brainer to me. Because the COA also concluded that the stop was only based on reasonable suspicion, it held the evidence obtained after the arrest violated the Fourth Amendment.

[Update: the city filed a PR on January 10, 2008].

[Further update: the KSC denied the city's PR and the mandate issued on May 30, 2008.]

Friday, December 14, 2007

New district judge in Salina

Here is the Governor's press release announcing the appointment of Patrick H. Thompson as a District Judge in the 28th Judicial District covering Saline and Ottawa Counties. Here is the Salina Journal coverage of the appointment.

Thursday, December 13, 2007

Twenty minutes to acquittal

Here is a Wichita Eagle article reporting on acquittal of three clients in municipal criminal trespassing cases involving the home of the former city manager. Kudos to Steve Mank, Charles O'Hara, and John Rapp for getting fair trials for these clients. A nice example of the value of the right to a jury trial. It's not just protection for seventeenth and eighteenth century citizens. It protects you and me today.

Acquittal in rape case

Wayne Tate won an acquittal in a fairly high profile Grant County rape case involving a Ulysses High School teacher and coach. Here is the Hutch News article reporting on the acquittal.

Friday, December 07, 2007

KSC reverses bartender's involuntary manslaughter conviction

Jennifer Conkling won in State v. Scott, No. 95,760 (Kan. Dec. 7, 2007), reversing a Reno County conviction for involuntary manslaughter against a bartender who served a drink called "The Stoplight." The KSC reviewed the Kansas involuntary manslaughter statute and concluded that "we have no hesitation in holding the State must prove that a defendant's behavior was the proximate cause of the victim's death under K.S.A. 2004 Supp. 21-3404(c)." The KSC then reviewed the record on that point:
the evidence of proximate causation placed before Scott's jury was insufficient as a matter of law. The State proved that Goodpasture, an adult, voluntarily consumed alcohol including "The Stoplight," at The Point. It proved that her death resulted from acute ethanol poisoning. But it put on no evidence to show that "The Stoplight"–the only alcohol alleged to have been supplied to her by Scott illegally, i.e., the only alleged lawful act performed in an unlawful manner–led to the poisoning. Although the jury might reasonably have inferred that "The Stoplight" accounted for some part of Goodpasture's blood alcohol content, there was no testimony demonstrating that "The Stoplight," in particular, marked the doorway from her intoxication to her death.

This is a pretty high profile case in the Hutchinson area. Here is local coverage from the Hutch News. The story also made the front page of the Topeka Capital-Journal (here). Here is link to some of the original CourtTV background info on the trial.

Miranda suppression affirmed

Stephen Atherton won in State v. Bordeaux, No. 98,161 (Kan. App. Dec. 7, 2007), affirming Judge Wheeler's suppression of statements under Miranda. Here is the COA's summary of the case:
Anthony Bordeaux was ordered at gunpoint to come out of an open garden shed in which he was hiding. The shed was located behind a mobile home; an owner of a neighboring lot in the mobile-home park had called police to investigate a suspicious man wearing blue jeans, a black coat, and a black stocking cap. Once Bordeaux came out of the shed, the officer ordered him to put his hands on top of the shed so that the officer could conduct a pat-down for weapons. Bordeaux refused this order at least twice before complying, the officer's demands presumably becoming more and more insistent until Bordeaux complied. While one officer was conducting the pat-down--perhaps with Bordeaux already in handcuffs--another officer grabbed a black coat from inside the shed and asked Bordeaux whether it was his coat. Bordeaux admitted that it was. This case was in district court because drugs were found in the coat. The case is in the Court of Appeals because the district court suppressed Bordeaux's statement admitting ownership of the coat, and the State has appealed.

The COA did a review of the detailed facts found by the district court and held that, even if there was contradictory testimony at points, the record in total supported the district court's findings.

[Update: the state did not file a PR and the mandate issued on January 10, 2008].

Twenty years for picking up ammo on Halloween

The Tenth Circuit affirmed a felon in possession conviction in U.S. v. Baker, No. 07-3002 (10th Cir. Dec. 7, 2007), rejecting the defendant's request for an innocent possession instruction. Here is the take on the record by Judge Holloway in his dissent:
on this Halloween night, in spite of the very late hour, there were children out and about at the apartment complex where he found the ammunition and that he took the contraband away from that place out of concern for safety; that he intended to take the ammunition to a police station; that he made one short stop on the way to accommodate one of his companions; and that he had been in possession of the ammunition for only ten minutes. His testimony that he approached Officer Bachman with the intention of turning the ammunition over to him was partially corroborated by the officer, who testified that Baker was approaching him before he ordered Baker to stop. Thus Baker’s testimony, which should be accepted in determining if Baker made a viable innocent possession showing, demonstrated that he did not possess the ammunition for illicit purposes.

The majority’s holding is that, even if the jury believed every part of Baker’s testimony, it is in keeping with Congressional intent that Baker serve nearly 20 years in prison for his conduct. I cannot agree that Congress intended such "a harsh and absurd result.”

Of course the majority asserts that injustice like that asserted by Mr. Baker can't happen because "if the safeguard against liability for being a Good Samaritan is not provided by statute, it is found in the exercise of sound prosecutorial discretion." Wow, I feel safer already. In fact, under this rationale, why even have jury trials at all? The prosecutor exercising "sound prosecutorial discretion" won't ever wrongfully charge anyone.

Tuesday, December 04, 2007

Update on Fourth Amendment compilation

Thanks to the Tenth Circuit Blog who noted that the Oregon Federal Public Defender has posted (here) its updated Fourth Amendment compilation. It presents the subject from a defense perspective and is quite useful both for the new and experience practitioner. Print it out and read it. We have had lots of good and bad cases on the Fourth Amendment here in Kansas. We need to try to stay on the cutting edge.

Friday, November 30, 2007

January 2008 KSC docket

Here are the criminal cases on the KSC docket for January 28-31, 2008. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

January 28, 2008-Monday-a.m.

State v. Terral Breedlove, No. 96,608 (Sedgwick)
Motion to Correct Illegal Sentence; Felony murder
Lydia Krebs
[Conviction reversed, sentence vacated; Nuss; March 28, 2008]
  1. Jurisdiction to prosecute juvenile in adult court
State v. Donald Storey, No. 95,592 (Sedgwick)
Direct appeal (petition for review); Burglary
Matthew J. Edge
[Affirmed; Nuss; April 4, 2008]
  1. Is entry into an unfinished structure burglary
State v. Kim Crum, No. 95,729 (Sedgwick)
Direct appeal; First-degree Murder
Jessica R. Kunen
[Affirmed; Johnson; May 16, 2008]
  1. Prosecutorial misconduct (disparaging counsel, improper questions/argument)
  2. Error in showing jury photograph during deliberations
  3. Failure to allow substitute counsel after conflict developed
  4. Admission of improperly prejudicial evidence
  5. Violations of in limine orders
State v. Lianna Heapofbirds, No. 97,229 (Sedgwick)
Motion to Correct Illegal Sentence (transfer); Aggravated Battery
Carl A. Folsom, III
[Dismissed as moot; Sept. 3, 2008]
  1. Whether district court modification after probation revocation was illegal

January 28, 2008-Monday-p.m.

Joshua Robertson v. State, No. 95,188 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
[Affirmed; Beier; Feb. 6, 2009]

  1. Ineffective assistance of habeas counsel

State v. Leonard Pollman, No. 93,947 (McPherson)
Direct appeal (petition for review); DUI
Sam S. Kepfield
[Affirmed; Luckert; Aug. 8, 2008]

  1. No reasonable suspicion to stop
January 29, 2008-Tuesday-a.m.

State v. Christopher Brown, No. 96,862 (Shawnee)
State's appeal (petition for review)
Cindy K. Sewell
[Affirmed; Rosen; May 16, 2008]
  1. Suppression of confession
January 29-Tuesday-p.m.

State v. Glenn Heath, No. 97,119 (Shawnee)
Motion to Correct Illegal Sentence; Felony murder
Michael S. Holland
[Affirmed; Davis; March 28, 2008]
  1. Failure to resentence after appellate reversal of consecutive sentence
State v. Randy Johnson, No. 96,681 (Douglas)
Direct appeal (transfer); Attempted Second-degree Murder
Kari R. Nelson
[Aff'd in part, rev'd in part and remanded; Luckert; Aug. 1, 2008]
  1. Improper admission of prior consistent statements
  2. Suppression of confession

January 30, 2008-Wednesday-a.m.

State v. Timothy Bryant, No. 95,945 (Wyandotte)
Direct appeal; Felony murder
B. Joyce Yeager
[Affirmed; Nuss; March 28, 2008]
  1. Prosecutorial misconduct
  2. Improper admission of prior bad act evidence
  3. Gruesome photographs
  4. Improper elements instruction and jury question response
  5. Failure to appoint substitute counsel
State v. Arthur Herron, No. 96,081 (Wyandotte)
Direct appeal; Felony murder
Korey A. Kaul
[Affirmed; Beier; Aug. 15, 2008]
  1. Insufficient evidence
  2. Failure to instruct on self-defense
  3. Failure to instruct on lessers
State v. Jackie Poulton, No. 95,353 (Reno)
Direct appeal (petition for review); Manufacture et al.
Shawn E. Minihan
[Reversed and remanded; Rosen; April 4, 2008]
  1. Suppression of evidence from search based on implied consent
January 30, 2008-Wednesday-p.m.

State v. William Scaife, No. 97,183 (Wyandotte)
Direct appeal; First-degree murder et al.
Janine A. Cox
[Aff'd in part, rev'd in part; Johnson; July 3, 2008]
  1. Failure to give lesser
  2. Sufficiency
  3. Prosecutorial misconduct (vouching)
State v. Bobby Hemphill, No. 95,209 (Reno)
Motion to Appeal Out of Time (petition for review); Possession w/intent w/1000ft
Patrick H. Dunn
[Reversed and remanded; Davis; July 3, 2008]
  1. Failure to allow out of time appeal
State v. Ramon Fewell, No. 95,041 (Shawnee)
Direct appeal (petition for review)
Carl A. Folsom, III
[Affirmed; Davis; May 30, 2008]
  1. Suppression of evidence from search of person based on smell of marijuana
  2. Improper questions illiciting witness' opinion about defendant's veracity

Search exceeded scope

Carl Folsom won today in State v. Warren, No. 94,694 (Kan. App. Nov. 30, 2007), reversing Johnson County burglary and theft convictions with an order to suppress evidence obtained from search of a car. After deciding to impound a car, the driver asked to retrieve some personal items, which the officer would allow, but only after a search of the car for weapons. During that search, the officer found and went through a day planner:
It is true the day planner could have contained a weapon, but it did not. And, the officer's search did not stop with checking for weapons in the book. Instead, without any probable cause, the officer continued to search through the planner thoroughly. He found a social security card, a checkbook, and a AAA card, all of which had one Jason Toomsen's name on them. (Toomsen had suffered a house burglary the day before.) When asked, Warren offered no explanation about the items or why they were in his car. This caused the officer to extend his search to the passenger area and then the trunk.
This search exceeded the legal limits of a Terry search, and the evidence gained from it must be suppressed. Neither party argues the inevitable discovery doctrine applies here, and we agree because of the lack of a written policy covering inventory searches of impounded cars and trucks by the Roeland Park Police Department.
Nice to see that the COA understand that there are "scope" restrictions (at least in this case)! Here is's coverage of the case.

[Update: the state filed a PR on December 31, 2007.]

[Further update: the KSC denied the state's PR and the mandate issued on May 30, 2008.]

Thursday, November 29, 2007

Prosecutorial musical chairs

Here is a Parsons Sun article reporting on the selection of John Bullard, the current Labette County Attorney, to fill the vacancy created by the resignation of the Cherokee County Attorney. So I guess now there will soon be a vacancy in Labette County.

Article on next week's Fourth Amendment cases

Here is a Lawrence Journal-World article reporting on two drug cases being argued before the KSC next week. I blogged about these cases here and here. It's interesting to see the public comment/perspective on these cases. And here is my previous blog setting out next week's KSC criminal cases.

Monday, November 26, 2007

Judicial evaluations

Here is a Topeka Capital-Journal article reporting on the newly created Commission on Judicial Performance. It will be interesting to see how this process works and whether it makes any difference with voters. Here is a Lawrence Journal-World article on the same subject.

Wednesday, November 21, 2007

No state appeal

Paul Oller won in State v. Vasquez, No. 96,690 (Kan. App. Nov. 21, 2007), obtaining dismissal of the state's appeal from the district court's denial of the state's motion to hold a defendant in indirect contempt of court after failing to pay restitution. The COA held that this appeal did not fall within the statutorily delineated types of state appeals:
the instant matter, the State does not come within any of the narrowly defined categories of K.S.A. 2006 Supp. 22-3602(b). Once an individual completes his or her period of incarceration or probation, the trial court no longer has jurisdiction in the criminal case over any unpaid restitution. Collection of unpaid restitution must then be pursued in a civil action. Accordingly, this court does not have jurisdiction to consider the substantive issues raised by the State.
It's worth mentioning to anyone that is defending in a prosecution appeal to always think about a jurisdictional argument. Remember, the COA and KSC generally are quite strict on both the substantive and procedural requirements in prosecution appeals, so look for possible jurisdictional issues with a fine-toothed comb.

[Update: the AG entered and filed a PR on December 14, 2007.]

[Further update: the KSC denied the state's PR and the mandate issued on April 25, 2008.]

Prior use/possession not relevant in possession case

Shawn Minihan won in State v. Boggs, No. 96,921 (Kan. App. Nov. 21, 2007), getting a new trial in a McPherson County drug prosecution. This is great common-sense application of K.S.A. 60-455 to a situation we see too frequently--admission of prior possession convictions in subsequent possession prosecutions:
Furthermore, the prior crime evidence of smoking marijuana was not so relevant as to show some material or logical connection between it and the charged crimes. A fact finder could not have reasonably inferred that the later acts of possession of marijuana and possession of drug paraphernalia follow from or was logically connected to the former act of smoking marijuana. For example, a person could smoke marijuana and not later be in possession of marijuana or possession of drug paraphernalia. Thus, it would be a logical non sequitur to conclude that because a person previously smoked marijuana, the person would later possess either marijuana or drug paraphernalia.
And even if it meets the relevancy test included in K.S.A. 60-455, the COA held that where the defendant did not claim innocent or mistaken possession, prior acts are not relevant to show intent or absence of mistake:
When a defendant completely denies "that any of the charged conduct took place," the defendant's intent is not in issue and the evidence may not be admitted to prove it. Moreover, absence of mistake or accident and intent are closely related concepts. Unless a defendant has contended that the charged crimes were innocent in character, evidence of prior acts or convictions may not be admitted to show absence of mistake or accident. State v. Graham, 244 Kan. 194, 197, 768 P.2d 259 (1989). As a result, the trial court erred in admitting the prior crime evidence under K.S.A. 60-455 to show intent, knowledge, and absence of mistake or accident.
This could have a pretty big impact in a lot of nonexclusive possession prosecutions.

[Update: the state filed a PR on December 20, 2007].

[Further update: the KSC granted the state's petition on April 23, 2008. The case will be argued in the fall, probably September or October.]

Friday, November 16, 2007

COA short list

Here is the press release announcing the three candidates for the COA opening stemming from expansion of the court. The three nominees are: Ward Loyd from Garden City (former chair of the House Corrections and Juvenile Justice Committee), Timothy Moore, from Morris, Laing in Wichita; and Melissa Taylor Standridge, who works as chambers clerk for U.S. Magistrate Judge David J. Waxse in Kansas City, KS. Here is a Topeka Capital-Journal article relating the same news.

Friday, November 09, 2007

But why can't you instruct on the lesser?

I saw this article in the latest issue of NACDL's Champion magazine entitled "Defense Theory Instruction on Non-Included Lesser Offenses." It sort of struck a nerve because several of us have wondered about pursuing something along this line for non-included offenses in Kansas.

The typical examples are aggravated indecent liberties as a lesser non-included offense of rape (where only issue in dispute is penetration) and aggravated battery as a lesser non-included of attempted murder (where only issue is intent to kill). Although neither of these are included offenses (and therefore not charged), and Kansas law hasn't supported giving such instructions, there is support for changing or distinguishing that law.

In particular, an instruction that directs acquittal if jury finds defendant guilty of a non-included lesser offense would be consistent with current Kansas law. I don't see the down side of such a request. Of course, many of you trial practitioners might like all or nothing, but it seems on our end that a middle-ground for the jury would be helpful and cut sentences by years. Any thoughts?

Prosecutorial misconduct results in reversal of murder conviction

Korey Kaul won in State v. Cosby, No. 94,609 (Kan. Nov. 9, 2007), getting a new trial in a Douglas County first-degree premeditated murder prosecution. The main issue causing reversal was a Doyle violation and prosecutorial misconduct regarding the state's argument regarding premeditation:

However, we sent a clear warning in Pabst that prosecutors must avoid forms of the word "instant" or any synonym conveying that premeditation can develop instantaneously. We have consistently found reversible misconduct when a prosecutor states or implies that premeditation can be instantaneous. See, e.g., State v. Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004) (prosecutor's gesture of firing gun, accompanied by statement, "That can be premeditation under the laws of the State of Kansas. One squeeze of a trigger is all it takes," implied instantaneous premeditation; misconduct reversible); State v. Holmes, 272 Kan. 491, 497, 499-500, 33 P.3d 856 (2001) (prosecutor said "premeditation can occur in an instant. That's the law in the State of Kansas"; deliberate misstatement constituted reversible error). Given Pabst's warning, the prosecutor in this case should have known better. His misstatement of the law was outside the considerable latitude given him in discussing the evidence.
Here is the Lawrence Journal-World article reporting on the case. Here is a TV article reporting that retrial is set in this case.

[Update: this case was voted 2007 ADO case of the year.]

Thursday, November 08, 2007

Mistrial in Olathe

Here is an Olathe News article reporting that Judge Anderson granted Tom Bath's motion for mistrial mid-way in an attempted first-degree murder trial for failure to properly edit out improper comments on a tape.

Lesser verdict in Salina meth case

Here is a Salina Journal article reporting that Jason Tupman won a lesser verdict in State v. Thomas of sale in a Salina prosecution for sale w/1000 of a school. The verdict was exactly what Jason asked for, and is a big win.

Tuesday, November 06, 2007

"Plain smell" does not justify search of person in car

Francis E. Mesienheimer, of Martindell, Swearer & Shaffer, won in State v. Altum, No. 96,971 (Kan. App. Oct. 26, 2007)(unpublished), successfully defending Judge Becker's suppression order in a Reno County drug prosecution. One big issue was whether the smell of marijuana coming from a car justified a search of one of the occupants of the car:
Deputy Graber performed an initial justified Terry frisk of Altum. That search was unproductive. At the time of this initial search, the following factors were known to Graber: (1) The smell of marijuana emanating from the car in which Altum was a passenger; and (2) the smell of marijuana emanating from Altum's person. The only additional information that could have given rise to a probable cause search of Altum after the unproductive Terry frisk was that Stephenson, the other back-seat passenger, had been in possession of marijuana.

The fact that Graber noticed the smell of marijuana coming from a car with two back-seat passengers, and one passenger had been found in possession of marijuana, does not automatically establish that both were involved in criminal activity.

In summary, we do not believe that Kansas has yet adopted a “plain smell” exception for warrantless searches of persons based on a trained law enforcement officer's detection of the odor of marijuana.

Good discussion of Kansas case law on this subject if you have the same or a related issue.

[Update: the state did not file a PR and the mandate issued on November 29, 2007.]

Monday, November 05, 2007

Slow news

Sorry for the infrequent updates. Partly due to me being gone several days and having a lot of oral arguments. But mostly due to the fact that not much has been happening in the state appellate courts that's worth talking about. We have a lot of cases pending decision, so hopefully we will have more to talk about this fall. In any case, keep me up to date on any items of interest from district court (i.e. verdicts, suppression orders, etc.).

Thursday, October 18, 2007

Tenth Circuit reverses murder convictions

In U.S. v. Henry Woody and U.S. v. Larry Woody, No. 06-2100 (10th Cir. Oct. 12, 2007), consolidated appeals stemming from second-degree murder convictions in New Mexico, the Tenth Circuit reversed one conviction based on insufficiency of evidence and ordered a new trial in the other conviction based on admission of improper propensity evidence. The Court reviewed the evidence in detail:

Upon close examination of the testimony and evidence adduced against Larry, we conclude no rational trier of fact could have found him guilty of second-degree murder beyond a reasonable doubt. While there was certainly evidence indicating he was involved (along with others) in an assault of Tutt, the cause of death was not the assault, but rather a stabbing. Even viewed in the light most favorable to the government, the evidence simply does not sufficiently link Larry with the stabbing. The jury could have concluded the Defendants stayed at Hayes’s shack the night before the murder weapon was found there. But the evidence also demonstrates the murder weapon was not discovered for over twelve hours after the stabbing allegedly occurred, at least three other individuals—Paul Hayes, Jr., his father and his father’s girlfriend—stayed at the shack on the night of April 25, and the shack was freely accessible to all who wished to enter.

The lack of forensic evidence connecting Larry to the killing is also noteworthy. The forensic pathologist stated Tutt lost large amounts of blood, probably two to two and a half quarts, and significant bleeding would have occurred given the nature of the injuries. Indeed, the testimony revealed that blood had covered surrounding tree branches, and yet authorities did not find any of Tutt’s blood on Larry’s clothing or the backpack he constantly carried. Neither could the government establish the time of death. The FBI also did not find any trace evidence from Tutt (i.e. hairs or fibers) n Larry’s possessions and did not find any of Larry’s DNA on Tutt. Lastly, the FBI found no fingerprints on the steak knife.

The most damning bit of evidence against Larry is, of course, Dawes’s testimony -- he observed Henry (described as “the shorter [man]”) and Larry (described as “the taller [man]”) kicking and punching a man matching Tutt’s description around dusk on April 25. Despite the great distance from which Dawes made these observations and the inconsistencies in his statements regarding the number of individuals participating in the assault, we must assume his testimony is true and he did indeed see the Defendants hitting and kicking Tutt that evening. But while that fact incontrovertibly establishes battery of Tutt by the Defendants, it does not, without more, provide sufficient evidence to convict Larry of second-degree murder. Notably, Dawes never testified he saw a weapon of any sort, let alone a steak knife. Moreover, the exculpatory evidence regarding the physical state of Larry’s right hand only two days after the killing must function into the equation and Larry only confessed to buying and drinking “ocean” with Tutt, hardly an admission to second-degree murder.

The Tenth Circuit went on to held that the government could not salvage this convicition under an aiding and abetting theory either. There is a lot of good language in this case for attorneys raising sufficiency claims.

Tuesday, October 16, 2007

Applicants for COA vacancy

Here is the press release naming the two judges and twelve attorneys putting their names in the hat for the new COA spot to be filled at the beginning of the year. Be sure to get any comments to the nominating commission asap.

Here is a Lawrence Journal-World article regarding the applicants.

Friday, October 12, 2007

December 2007 KSC docket

Here are the criminal cases on the KSC docket for December 3-6, 2007. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

December 3, 2007-Monday-a.m.

State v. Charles Hawkins, No. 95,310 (Sedgwick)
Direct appeal (petition for review); Felony DUI
Shawn E. Minihan
[Aff'd part, rev'd and vac'd in part; Johnson; Feb. 8, 2008]

  1. Improper admission of refusal to take breathalyzer
  2. Compulsory joinder violation
State v. Tina Martin, No. 95,819 (Sedgwick)
Direct appeal (petition for review); Criminal Discharge of Firearm
Patrick H. Dunn
[Affirmed; Nuss; Feb. 1, 2008]

  1. Improper upward dispositional departure

December 3, 2007-Monday-p.m.

State v. Eric Jones, No. 97,279 (Wyandotte)
Direct appeal; First-degree murder
B. Joyce Yeager
[Affirmed; Johnson; Dec. 12, 2008]

  1. Confrontation Clause violation by admitting dying declaration
  2. Prosecutorial misconduct (arguing facts not in evidence)
  3. Failure to give lessers
State v. Nam Nguyen, No. 96,430 (Finney)
Direct appeal; First-degree murder
Autumn L. Fox
[Aff'd in part; rev'd in part; per curiam; Feb. 8, 2008]

  1. Multiplicity of conspiracy convictions
  2. Suppression of defendant's statements
State v. Joshua Patton, No. 95,860 (Dickinson)
Direct appeal (petition for review); Attempted Manufacture
Douglas G. Thompson
[COA order dismissing appeal reversed; Beier; Nov. 14, 2008]

  1. Waiver of direct appeal
State v. Randall Jones, No. 95,654 (Mitchell)
Direct appeal (petition for review); manufacture
Randall L. Hodgkinson
[Voluntary dismissal; June 19, 2008]

  1. Failure to allow late direct appeal

December 4, 2007-Tuesday-a.m.

State v. Mario Mitchell, No. 98,512 (Wyandotte)
State's appeal (transfer); First-degree murder
William P. Mahoney
[Appeal dismissed, remanded with directions; Rosen; March 28, 2008]

  1. Appellate jurisdiction over interlocutory appeal
  2. Acceptance of stipulation regarding ability to possess gun over objection of state
State v. Alexis Blackmon, No. 95,696 (Wyandotte)
State appeal (petition for review); Second-degree murder
Patrick H. Dunn
[Reversed and remanded; Luckert; Feb. 1, 2008]

  1. Improper downward durational departure
State v. Shannon Aguilar, No. 95,249 (Wyandotte)
Motion to withdraw plea (petition for review); Possession
Carl A. Folsom, III
[Reversed and remanded; per curiam; May 21, 2010]
  1. Failure to allow withdrawal of plea

December 4, 2007-Tuesday-p.m.

State v. Paul Martin, No. 96,126 (Douglas)
Direct appeal (petition for review); Possession
Juanita M. Carlson
[Affirmed; Johnson; March 28, 2008]
[Cert petition denied Oct. 6, 2008]

  1. Lack of justification for records check
State v. Daubin Paul, No. 95,105 (Saline)
Direct appeal (petition for review); Sale (3d)
Julie A. McKenna
[Affirmed; Davis; Feb. 1, 2008]

  1. Statutory speedy trial violation
  2. Improper enhancement of sale conviction
State v. Jesus Ruiz-Reyes, Jr., No. 95,056 (Reno)
Direct appeal (petition for review); Possession w/Intent to Sell (2d)
Michael S. Holland, II
[Reversed and remanded; Davis; Feb. 1, 2008]

  1. Improper enhancement of possession with intent conviction

December 5, 2007-Wednesday-a.m.

State v. Douglas Belt, No. 95,575 et al. (McPherson)(Reno)(Saline)
State's appeal/direct cross-appeal (transfer)
Rebecca E. Woodman
[Affirmed; Beier; March 28, 2008]

  1. Validity of "John Doe" charge based on DNA
  2. Consitutional speedy trial
  3. Validity of arrest warrants
State v. Leonard Reid, No. 93,646 (Johnson)
Direct appeal; First-degree murder
Korey A. Kaul
[Affirmed; Nuss; June 27, 2008]

  1. Improper bad act evidence with no limiting instruction
  2. Failure to sever codefendants
  3. Improper instruction on eyewitness identification
  4. Failure to give lessers
  5. Insufficient evidence of aggravating factor
State v. Rhonda Walker, No. 96,691 (Johnson)
Direct appeal (petition for review); Manufacture
Ryan J. Eddinger
[Petition dismissed as improvidently granted; per curiam]

  1. Improper sentencing
  2. Appellate jurisdiction over sentencing appeal
State v. David Patton, No. 98,470 (Shawnee)
Habeas appeal (petition for review)
Ron F. Evans
[Reversed; Luckert; Feb. 1, 2008]

  1. Competency to extradite

December 5, 2007-Wednesday-a.m.

State v. Jason Hughes, No. 95,256 (Lyon)
Direct appeal; First-degree Murder
Randall L. Hodgkinson
[Reversed and remanded; Rosen; Aug. 22, 2008]

  1. Confrontation Clause/hearsay (unavailable witnesses)
  2. Prior bad act evidence
  3. Improper expert testimony on effect of drug dependence
  4. Improper use of evidence tainted by inquisition testimony
State v. Marcy Carapezza, No. 95,233 (Lyon)
Direct Appeal; First-degree Murder
Julia S. Spainhour
[Reversed and remanded; Rosen; Aug. 22, 2008]

  1. Prior bad act evidence
  2. Improper expert testimony on effect of drug dependence
  3. Improper use of evidence tainted by inquisition testimony
State v. Roderick Fields, No. 97,292 (Sedgwick)
Motion to correct illegal sentence
Carl F.A. Maughan
[Affirmed; per curiam; Feb. 1, 2008]

  1. Appointment of counsel before summary denial
State v. Ralph Trice, No. 95,356 (Sedgwick)
Direct appeal (petition for review); Agg Interference with Parental Custody
Shawn E. Minihan
[Petition for review dismissed as improvidently granted; per curiam; Feb. 1, 2008]

  1. Prosecutorial misconduct (misstatement of law)
  2. BIDS fee

December 6, 2007-Thursday-a.m.

State v. Shannon Greever, No. 95,303 (Reno)
Direct appeal (petition for review); Possession
Jennifer E. Conkling
[Affirmed and remanded with directions; Davis; May 16, 2008]

  1. Fourth Amendment violation during and after traffic stop

Wednesday, October 10, 2007

Suppression upheld

William L. Brown won in State v. Turpin, No. 98,071 (Kan. App. Oct. 5, 2007) (unpublished), affirming Judge Dickinson's suppression of evidence in a Harvey County drug prosecution. The COA applied a recent KSC case to review in detail the totality of the circumstances of the extension of a traffic stop:
Like the Thompson case, this is one of those very close cases, with factors supporting both a coercive and a consensual encounter. Although we avoid any focus on a single factor, we note that to endorse the legality of this encounter would seem contrary to the Mitchell case, where our Supreme Court clearly held that once the reason for the initial stop has been fully investigated, persons detained must be allowed to leave without further delay. Although an officer may ask occupants of a vehicle to exit incident to a valid traffic stop, we do not believe such a request may be made after the initial basis for the stop has been fully investigated and concluded. See Maryland v. Wilson, 519 U.S. 408, 414-15 (1997). We conclude that under the totality of the circumstances, a reasonable person would not feel free to decline the officer's request for further questioning. The district court did not err in so holding.

[Update: the state did not file a PR and the mandate issued November 8, 2007.]

Incompetent to waive Miranda

Sarah Swain won in State v. Barnum, No. 97,969 (Kan. App. Oct. 5, 2007) (unpublished), affirming Judge Murphy's suppression of Mr. Barnum's statements in a Douglas County rape prosecution. Applying a substantial competent evidence standard, the COA noted the following facts in the record:

The district court found that “the defendant's statements made to Officers Cross and Axeman should be suppressed because of the defendant's inability to knowingly and intelligently waive his privilege against self-incrimination and his right to retain appointed counsel.” The district court supported its finding with several facts: (1) the recorded interview showed that Barnum was ambivalent and possibly lacked a full understanding of the importance of waiving his Miranda rights; (2) the recorded interview showed that Barnum had difficulty reading and writing; (3) Barnum had suffered a serious brain injury that affected his mental abilities; (4) the expert opinion of Athey was that Barnum was incapable of knowingly waiving his Miranda rights; and (5) the State did not present expert testimony on Barnum's ability to waive his Miranda rights.

There was substantial competent evidence to support the facts cited by the district court. The recorded interview showed that Barnum hesitantly waived his Miranda rights and that he could neither read nor complete a form without the officers' assistance. There was also testimony that Barnum had suffered a severe brain injury that affected his cognitive abilities. Finally, Athey testified that he conducted a variety of tests, which caused him to conclude that Barnum was incapable of waiving his Miranda rights.

. . . .

In summary, the district court was faced with conflicting evidence which it was in the best position to resolve. Although the record contains evidence which may have supported a different disposition in this case, the record also contains substantial competent evidence supporting the district court's decision that Barnum did not knowingly and intelligently waive his Miranda rights.

Wow, nice to see application of the standard of review equally on a state's appeal as in a defendant's appeal. This panel gets it right. Under a substantial competent evidence standard, there should be a spectrum of cases that support either a grant or denial of relief.

By the way, there is an argument that "substantial competent evidence" is not the right standard of review for this type of case. If the state had the burden of proof, which it admitted, the district court's finding is essentially a negative finding (i.e. the state failed to meet its burden of proof that the statements were voluntary). As noted by Sarah in her brief, "[a] negative finding will not be rejected on appeal unless the party challenging the finding proves an 'arbitrary disregard of undisputed evidence, or some extrinsic consideration such as bias, passion, or prejudice.' City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.3d 1356 (1997)." Why wouldn't this be the right standard of review for a state suppression case?

[Update: the state did not file a PR and the mandate issued on November 8, 2007.]

Tuesday, October 02, 2007

Halfway house can be residential

Lydia Krebs won in State v. Brown, No. 96,593 (Kan. App. Sept. 21, 2007), obtaining jail credit for time Mr. Brown spent in a halfway house. What is interesting about this case is that it sets up rather factually intensive determinations to be made by district courts when determining whether a specific placement is a residential facility. For example, it can depend in part on the program-nature of the halfway-house:
Going deeper into the matter, we think that what is required of a defendant at such a facility is an important consideration. We do not think that K.S.A. 21-4614a contemplates that credit must be extended for time spent at a flophouse for the idle. A court must examine each facility to see if there are any program requirements of the facility and if there are, the court must determine if they have a rehabilitative component.
This seems like it could be a little time-consuming on the part of district courts, but I suppose once a decision is made about a specific facility, that would carry over to other cases as well. I don't know how many facilities there are like this--that are sort of on the edge.

"Flophouse for the idle?"

[Update: the state did not file a PR and the mandate issued on October 25, 2007.]

Monday, October 01, 2007

Acquittal in high profile Topeka case

Here is the Topeka Capital-Journal article reporting that Don Hoffman won an acquittal in a high-profile Shawnee County agg indecent liberties trial. Here and here and here and here and here is previous Capital-Journal coverage of the six-day jury trial.

Delayed justice

Here is a nice Hutch News article reporting on a Reno County acquittal after the client spent a year in jail pretrial. The article does a nice job of pointing out the delays caused by high turnover in both the prosecutor and public defender offices:

Bradley Verstraete spent a year in jail after his arrest in August 2006, when sheriff's officers suspected he was attempting to manufacture methamphetamine.

But it took a Reno County jury just an hour to determine he was innocent.

Officers said little to him when he was released from the Reno County Jail, Verstraete said. "They just wished me luck."

Now, the 36-year-old man needs all the luck he can get. Verstraete said his only possessions are what he was wearing when he was set free."I'm just glad it's over," he said. "It was a pretty big inconvenience in life."

Yeah, I guess a year in jail would be an inconvenience to me too. Good job to Sarah McKinnon for getting the right result in the end.

Thursday, September 27, 2007

Sex battery acquittal in Salina

Here is a Salina Journal article reporting an acquittal in State v. Neil, ending a Saline County sexual battery prosecution. Mitchell Christians represented Ms. Neil. Do you think there is a big difference between sex cases involving women as defendants rather than men? I would guess the answer is yes.

Thanks for the info on the attorney!

Wednesday, September 26, 2007

What was he thinking?

Mark Schoenhofer won in State v. Shears, No. 95,637 (Kan. App. Sept. 21, 2007)(unpublished), getting a new trial in a Sedgwick County attempted first-degree murder prosecution. The COA reversed based on failure to give a requested lesser-included offense instruction for attempted second-degree murder:
For purposes of first-degree murder, “premeditation” is the process of thinking about a proposed killing before engaging in the homicidal conduct. The mental state required is to be distinguished from general premeditation to stalk, to harass, or even to cause injury; for first-degree murder there must be premeditation to kill. Here we believe the district court may have confused these concepts; clearly there is evidence that the shooter “premeditated” some type of bad act, but it is unclear precisely what that bad act may have been. As argued by Shears' counsel, the following or stalking, the deliberate approach to the vehicle, and the number of shots fired are consistent with a premeditated intent to damage the vehicle, to invoke fear in the victim, to perform a gang ritual, or to cause injury to the victim. And when considered along with the facts that in a well-lit area that presumably permitted the shooter to see no person behind the windshield, a vast majority of the shots were fired “randomly” at points on the vehicle that had no relationship to the location of the victim. We concede that there may have been premeditation to kill, but viewing the evidence most favorably to Shears, the evidence also reasonably inferred that there was no such specific premeditation, but only a design or plan to damage the vehicle or to harass the victim. Under these circumstances, the jury should have been allowed to determine the mental state of the shooter, including the nature of any premeditation, and the instructions should have contemplated that the mental state may have been one of the several possibilities referred to in our analysis.

This sort of reminds me of other issues that we have raised dealing with attempt or aiding and abetting where a person commits some act, but there could be a question about what the defendant specifically intended to do. Don't be afraid to ask for very specific instruction in such cases.

[Update: the state filed a PR on October 10, 2007.]

[Further update: the KSC denied the state's PR on February 13, 2008.]

Tuesday, September 25, 2007

District judge on hot seat

Here is a Wichita Eagle article reporting that an investigator for the Judicial Qualifications Commission has filed formal charges against Judge Pilshaw for conduct during a murder trial.

Judge Pilshaw was recently reprimanded by the Commission as noted here.

[The link to the Wichita Eagle article has expired].

[Update: here is a February 2008 Wichita Eagle article reporting on the Judicial Qualifications Commission hearing in Judge Pilshaw's matter].

Tuesday, September 18, 2007

October 2007 KSC docket

Here are the criminal cases on the KSC docket for October 24-26, 2007. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

October 24, 2007-Wednesday-a.m

State v. Jeremy Nguyen, No. 93,416 (Sedwick)
Direct appeal; First-degree Murder
Shawn E. Minihan
[Affirmed; Johnson; Dec. 14, 2007]

  1. Prosecutorial misconduct
  2. Improper adult certification (requiring choice between rights)
  3. Improper adult certification (improper notice to parents)
  4. Improper adult certification (sufficiency)
  5. Improper Allen instruction
State v. Paul Drayton, No. 95,672 (Sedgwick)
Direct appeal; First-degree Murder
Sarah Ellen Johnson
[Aff'd in part, rev'd in part; Nuss; Feb. 1, 2008]

  1. Violation of in limine order
  2. Improper admission of lay opinion on veracity of defendant
  3. Prosecutorial misconduct (Doyle violation)
  4. Insufficient evidence for felony theft
State v. Paul Hunt, No. 96,883 (Crawford)
Direct appeal; First-degree Murder
Carl Folsom
[Affirmed; Johnson; Feb. 2, 2008]

  1. Improper venue (several related issues)
  2. Improper admission of testimony that invaded province of jury
  3. Prosecutorial misconduct (personal opinion)
  4. Admission of prior bad act evidence without limiting instruction
October 24, 2007-Wednesday-p.m.

State v. Dustin Holt, No. 96,744 (Waubaunsee)
Direct appeal; First-degree Murder
Janine Cox
[Aff'd in part, rev'd in part; Nuss; Feb. 1, 2008]

  1. Improper jury poll
  2. Failure to give mere presence aiding and abetting instruction
  3. Insufficient evidence to support aiding and abetting instruction
  4. Inconsistent state theories
State v. Martin Vasquez, No. 95,400 (Edwards)
Direct appeal; First-degree Murder
Korey A. Kaul
[Aff'd in part, rev'd in part; Beier; Oct. 17, 2008]

  1. Improper admission of prior bad acts evidence
  2. Failure to instruct of voluntary manslaughter
  3. Improper admission of statements
  4. Sufficiency of evidence to support agg burglary
  5. Sufficiency and constitutionality of hard-40
October 25, 2007-Thursday-a.m.

State v. Abraham Alderete, No. 94,388 (Sumner)
Direct appeal (petition for review); Child Abuse
Randall L. Hodgkinson
[Affirmed; Greene; Dec. 7, 2007]

  1. Failure to give lesser included offense instruction
Michael Wilkins v. State, No. 95,023 (Jefferson)
K.S.A. 60-1507 appeal (petition for review)
Ronald Schneider
[Affirmed; Beier; Aug. 22, 2008]

  1. Ineffective assistance of counsel (failure to consult with expert)
  2. Prosecutorial misconduct (failure to disclose exclulpatory evidence)
In re L.M., No. 96,197 (Finney)
Direct appeal (petition for review); Juvenile adjudication
Paul Shipp
[Reversed; Rosen; June 20, 2008]

  1. Right to jury trial in juvenile adjudication proceeding
State v. Lacey Smith, No. 96,189 (Cowley)
State appeal (petition for review)
Larry Schwartz
[Affirmed; Luckert; May 30, 2008]
[Cert petition denied Dec. 1, 2008]

  1. Whether passenger was seized when driver detained for traffic offense
October 25, 2007-Thursday-p.m.

State v. Nathan Wright, No. 94,862 (Thomas)
Direct appeal (petition for review); Sale
Patrick H. Dunn
[Petition dismissed as improvidently granted; per curiam; Dec. 14, 2007]

  1. Improper definition of sale
  2. Improper amendment of complaint
  3. Improper admission of prior bad acts
  4. Officers exceeded scope of search warrant
David Moncla v. State, No. 94,811 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael Whalen
[Reversed and remanded; McAnany; Feb. 8, 2008]

  1. Improper denial of motion without reaching merits
  2. Motion raising newly discovered evidence is not successive
State v. Jeffrey Cooper, No. 95,633 (Clay)
Direct appeal (petition for review); Manufacture
Randall L. Hodgkinson
[Affirmed; Rosen; March 28, 2008]

  1. Improper severity level for manufacture sentence
State v. John Prine, No. 93,345 (Reno)
Direct appeal (petition for review)
Shirla McQueen
[Reversed and remanded; Beier; Jan. 16, 2009]
  1. Sufficiency of evidence of penetration
  2. Improper admission of prior bad act evidence
  3. Improper admission of photograph

Monday, September 17, 2007

Hail to the Chief

Here is a Topeka Capital-Journal article reporting on Chief Justice McFarland's tenure on the Kansas Supreme Court. Here is the Office of Judicial Administrations release on the same.

Thursday, September 13, 2007

You can get probation for conspiracy

Shawn Minihan won in State v. Moffitt, No. 96,452 (Kan. App. Sept. 7, 2007) successfully defending a probation sentence imposed by Judge Hebert in a Saline County conspiracy to manufacture case. The state had argued that the provisions of K.S.A. 65-4159, which prohibit probation for manufacture or attempt to manufacture, should prevent the district court from granting probation for conspiracy to manufacture. The COA diagreed:
Nowhere in the provisions of K.S.A. 65-4159, however, is found any prohibition of probation in cases wherein a defendant is convicted of conspiracy to unlawfully manufacture a controlled substance. Indeed, the crime of conspiracy is not mentioned in any of the provisions of K.S.A. 65-4159. Given the plain language of this statute, we are unable to find any indication that its provisions apply to a defendant convicted of conspiracy to unlawfully manufacture methamphetamine.

[Update: the state did not file a PR and the mandate issued on October 11, 2007.]

Apprendi DUI case

J. Patrick Lawless, Jr. (aka "the Chief") won in State v. Whillock, No. 97,244 (Kan. App. Sept. 7, 2007), reversing a Jefferson County enhanced DUI sentence. The sentence was enhanced (from 12 months to 13 months) based on a judicial finding that a child was in the car. Sounds like an Apprendi problem to me. And the COA agrees:
Under the facts of this case, the defendant neither stipulated to the presence of a child under the age of 14 in his vehicle, nor did he consent to the court finding such a fact. Because the fact of the child's presence in the vehicle was not proved to a jury beyond a reasonable doubt, the defendant's constitutional rights as recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), were violated when the trial court used that fact to increase the maximum 1-year sentence for a third driving while under the influence under K.S.A. 2006 Supp. 8-1567(f) by 30 days (1 month) in accordance with K.S.A. 2006 Supp. 8-1567(h).

It's good to get a case on this because it is difficult to get a ruling in a timely manner. Most of the time defendants have already served the sentence.

[Update: the state did not file a PR and the mandate issued on October 11, 2007.]

New district judge in 30th

Here is the Governor's press release announcing that William Mott has been appointed district judge in the 30th Judicial District covering Sumner, Kingman, Pratt, Barber, and Harper Counties. Mr. Mott has a lot of prosecutorial experience.

Wednesday, September 12, 2007

Tenn. appellate court says drug tax is unconstitutional

Thanks to TalkLeft for noting Waters v. Chumley, a Tennessee Court of Appeals decision holding that the Tennessee Drug Tax is unconstitutional because it taxes an illegal activity. I know there was some litigation about the nature of the Kansas Drug Tax early after its passage, but this may provide some momentum to look at it again. It generally needs to be raised in the district court to raise it on appeal, so if you are looking for something to litigate in one of these cases, give it a look over. And you might comment on whether you think there is any room for new arguments in Kansas.

Tuesday, September 11, 2007

COA vacancy

Here is the Clerk's notice regarding accepting applications to fill a new position on the COA. The deadline is October 15, so get your applications in.

Warrant is not a cure-all

Jennifer Conkling won in State v. Hughes, No. 96,394 (Kan. App. Aug. 31, 2007)(unpublished), getting a remand in a Butler County drug prosecution. Mr. Hughes had been stopped for no reason while walking down the street early in the morning and police checked his identification. The COA agreed that the detention was without reasonable suspicion and, therefore, improper. But the district court had relied on State v. Jones, 270 Kan. 526, 17 P.3d 359 (2001), which held that later discovery of an arrest warrant can purge any illegality. The COA acknowledged the KSC case, but held that the district court had to engage in an attenuation analysis before it could rely on that basis:
the three factors . . . . set forth in Brown v. Illinois, 422 U.S. 590, 603-04 (1975) to be considered in determining whether there is sufficient attenuation to dissipate the taint of illegal conduct: (1) the length of time between the conduct and the procurement of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. However, the ultimate question is still whether the evidence came from “ ‘the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

We acknowledge the attenuation doctrine was not explicitly discussed in Jones. However, the Jones court relied on [United States v. Green, 111 F.3d 515 (7th Cir. 1997)], which in turn relied on the attenuation factors provided in Brown. Additionally, Jones specifically noted there was no evidence of bad faith on the part of the arresting officer, a rather clear reference to one of the Brown factors. We conclude the district court erred in not applying a taint analysis to the search and seizure issue as provided in Brown.

I wonder what that attenuation hearing looks like. I have seen several of these cases where law enforcement try to use a later discovered warrant to salvage an otherwise obviously illegal seizure.

[Update: the state did not file a PR and the mandate issued on October 4, 2007.]

Monday, September 10, 2007

New Johnson County judge

Here is the Governor's press release announcing the appointment of Sarah Welch as a new district judge.

Thursday, September 06, 2007

Jurisdictional win in Tenth Circuit

Howard Pincus, a federal public defender, won in U.S. v. Schaefer, No 06-3080 (10th Cir. Sept. 5, 2007), reversing a federal conviction for receipt and possession of images involving the sexual exploitation of minors. The Tenth Circuit reversed citing the failure of the state to provide evidence to support the federal jurisdictional requirement that images he received or possessed traveled across state lines:

Ultimately, the decision to uphold or overturn Mr. Schaefer’s convictions turns on whether an Internet transmission, standing alone, satisfies the interstate commerce requirement of the statute.7 Mr. Schaefer asserts that § 2252(a)’s jurisdictional provisions requires movement across state lines, and it is not enough to assume that an Internet communication necessarily traveled across state lines in interstate commerce. We agree.

We hold that the government did not present sufficient evidence to support the jurisdictional nexus of the § 2252(a) provisions at issue. They require a movement between states. The government did not present evidence of such movement; instead, the government only showed that Mr. Schaefer used the Internet. We recognize in many, if not most, situations the use of the Internet will involve the movement of communications or materials between states. But this fact does not suspend the need for evidence of this interstate movement. The government offered insufficient proof of interstate movement in this case.

So the Tenth Circuit ordered an acquittal. A good example of difficulties of proof that can result in the age of the internet.

Here is the Decision of the Day blog coverage of the case.

Friday, August 24, 2007

No actual or apparent authority for search

Thanks to Tenth Circuit Blog for catching a nice defense win on a government interlocutory appeal.

Margaret Katze, a federal public defender in New Mexico, successfully defended a suppression order holding that officers lacked actual or apparent authority to search in United States v. Kos, No. 06-2187 (10th Cir. Aug. 21, 2007). The Tenth Circuit recited the following facts from the record:

[S]even Albuquerque police officers arrived at Mr. Cos's apartment at approximately 3:00 p.m. to serve the arrest warrant. Feather Ricker, Mr. Cos's nineteen-year-old friend, answered the door.

Ms. Ricker testified at the hearing on the motion to suppress that she had known Mr. Cos for about a month, that they were "[r]eally good friends" who were "[j]ust getting to know each other," and that they would "go out sometimes." She also testified that she never had a key to Mr. Cos's apartment, that she was not living there, that she did not pay the rent, and that her name was not on the lease. Before June 29, 2005, Ms. Ricker had been alone in the apartment once or twice, when Mr. Cos went to the store, and she had spent the night there on two or three occasions. However, she did not keep any of her personal belongings in the apartment. Ms. Ricker added that she lived at another apartment complex and that Mr. Cos did not help her financially.

The Tenth Circuit applied United States v. Rith, 164 F.3d 1323, 1329 (10th Cir. 1999), which is its own precedent applying United States v. Matlock, 415 U.S. 164, 169-72 (1974) (discussing actual authority) and concluded that Ricker did not have actual authority to consent:

as the district court also observed, there are additional facts indicating that Ms. Ricker "was more like an occasional visitor whom [Mr.] Cos allowed to visit, rather than one who asserted a right to access the property jointly with [Mr.] Cos." Id. Ms. Ricker did not leave her personal belongings in the apartment, but instead took them with her when she left, indicating that she could not come and go as she pleased. Further, she had only been alone in the apartment on two occasions before the day of the search, and each occasion was only for a brief period. Ms. Ricker's limited access to the apartment is therefore insufficient to demonstrate actual authority under the first Rith inquiry.

The Court also agreed with the district court that the government had failed to show apparent authority:

Again, we agree with the district court's thorough analysis rejecting the government's contentions. Even if accompanied by young children, a third party's mere presence on the premises to be searched is not sufficient to establish that a man of reasonable caution would believe that she had "mutual use of the property by virtue of joint access, or . . . control for most purposes over it." See Rith, 164 F.3d at 1329. Instead, the government must offer some additional evidence to support a claim of apparent authority.

The Tenth Circuit also rejected any claim of "good-faith" and affirmed the suppression order.

Wednesday, August 22, 2007

Can't depart just for being in US illegally

Janine Cox won in State v. Martinez, No. 96,613 (Kan. App. Aug. 17, 2007), reversing a Barton County upward dispositional departure imposed because Mr. Martinez appeared to the district judge to be an illegal alien. The COA held that judge illegally being in the United States does not necessarily equate to nonamenability to probation:

The district court viewed Martinez' continued presence in the United States during a term of probation to be incompatible with his status as an illegal alien. The court observed: "Mr. Martinez is illegally in the country and is in violation of the probation rules right from the start if I were to place him on probation." This is true if Martinez had previously been deported and thereafter reentered the country illegally. 8 U.S.C. § 1326 would make his mere ongoing presence here a felony. On the other hand, if Martinez entered the country in violation of 8 U.S.C. § 1325 but has not previously been deported, his ongoing presence is not a crime though he is subject to deportation. Since the district court made no finding that 8 U.S.C. § 1326 applies to Martinez, we must set aside the departure sentence and remand for resentencing. If Martinez has not previously been deported, then the mere fact of his illegal alien status does not in itself render him unamenable to probation.

On the other hand, had Martinez previously been deported and reentered the country illegally, the district court's observations would be correct: Each day he served on probation would be a day on which he violated 8 U.S.C. § 1326.
On the flip side, the COA rejected Mr. Martinez' claim that the state district court was powerless to determine any fact about immigration status:

The district court did not engage in an adjudication of Martinez' immigration status. It simply recognized a fact about Martinez which his counsel volunteered during the course of the proceedings. On remand the district court is permitted to consider whether Martinez has been deported in the past in determining his amenability to probation.

Martinez correctly points out that it is not the function of the state courts to enforce our national immigration laws. The district court was not enforcing our national immigration laws by simply recognizing Martinez' immigration status for the purpose of deciding whether he is amenable to probation. The fact that our national leaders, for political, policy, or budgetary reasons, have chosen to ignore violations of our immigration laws does not prevent our courts from considering whether a defendant is engaging in an ongoing violation of law in determining that defendant's amenability to probation. The sentencing court should not be compelled to impose a plan of probation which, by its very nature, cannot be successfully completed.
Here is the Wichita Eagle article reporting on the case. Here is the CNSNews coverage and here is WorldNetDaily coverage of this case, which has also garnered some comment on other internet forums. (Here and here and here and here and here just to name a few). Here is a transcript of an interview on the O'Reilly Factor about the case. Given the current national debate on immigration, I won't be suprised to see this case talked about more in the future. And, on the practical side, I suspect this is a pretty recurrent issue in those parts of our state with lots of aliens.

[Update: the state did not file a PR and the mandate issued September 20, 2007].

Edwards violation

Charles O'Hara won in State v. Morales, No. 96,621 (Kan. App. Aug. 10, 2007) (unpublished), reversing a Lyon County drug conviction based on Edwards violation. Officers arrested Mr. Morales after a controlled buy. After providing Miranda warnings, Mr. Morales invoked his right to counsel.

[The detective] said if Morales wanted to talk with them, he would need to contact his attorney or initiate contact from the jail. Morales was then handcuffed. Both detectives said Morales spoke English and had no difficulty understanding and communicating with them.While walking Morales to the jail which was a distance of 400 to 500 feet away, [the detective] told Morales that the possible penalty he would receive for selling narcotics within 1,000 feet of a school was 54 months in jail. Morales testified at the suppression hearing that he was told it would be 10 to 15 years. Morales never asked about the penalty nor did he initiate any conversation with the detectives on the way to jail. When they entered the jail, the detectives' weapons were secured and while holding onto his arms and walking Morales down a hallway, Morales said he did not want to go to jail. [The detective] said there was not much he could do about it and he could not talk with Morales because he had asked for an attorney. Morales then said he no longer wanted an attorney.

The state argued that the detective's comments were not interrogation, but the COA disagreed:

Was it “interrogation” or was it just “harmless conversation”? The trial judge who heard the one detective say that he told Morales about the penalties to inform him, not to scare him, nevertheless, specifically held in his written findings that the detectives' conversation “was made in part with the hope of gaining incriminating statements from the defendant.”It is clear that Morales never asked what the penalties were for the crimes with which he was expected to be charged.We hold that Morales did not “initiate” the conversations after he asserted his right to counsel. Conversations designed to obtain additional information and incriminating statements from Morales amount to coercive conduct.

A common sense result--if officers affirmatively make the situation so coercive that a suspect "initiates" some more contact, that should not be treated as "initiation" for Edwards purposes.

[Update: the state did not file a PR and the mandate issued on September 13, 2007].

Thursday, August 09, 2007

Arson acquittal

Here is a Topeka Capital-Journal article reporting that Steve Dieter, a Sabetha attorney, won an acquittal in a fairly high-profile Nemaha County arson prosecution stemming from a fire that burned down a school.

Tuesday, August 07, 2007

New district judge in Johnson County

Here is the Governor's press release announcing that James Charles “Chuck” Droege has been appointed district judge to fill the vacancy created by Steve Leben being appointed to the COA. I don't know anything about Mr. Droege.

There is one more vacancy to fill in Johnson County. There is also a district judge vacancy (due to Judge Graber's retirement) to be filled in the 30th Judicial District (Pratt, Wellington, Kingman, Medicine Lodge). Lots of new faces on the bench.

Wednesday, August 01, 2007

September 2007 KSC docket

Here are the criminal cases on the KSC docket for September 4-7. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

September 4, 2007-Tuesday-a.m.

State v. Akira Brown, No. 92,544 (Sedgwick)
Direct appeal; First-degree Murder
Carl F.A. Maughan
[Affirmed; Luckert; Dec. 7, 2007]

1. Confrontation Clause
2. Improper admission of gang evidence
3. Failure to suppress statements
4. Failure to instruct on heat of passion/vol manslaughter
5. Failure to allow 3d party evidence
State v. Marc Sappington, No. 94,415 (Wyandotte)
Direct appeal; First-degree Murder
Sarah Ellen Johnson
[Affirmed; Nuss; Nov. 2, 2007]

1. Failure to give vol intoxication instruction
2. Failure to appoint new counsel
3. Failure to allow evidence of victim's mental illness
4. Failure to declare mistrial after state began to play wrong confession to jury
State v. Marc Sappington, No. 94,416 (Wyandotte)
Direct appeal; First-degree Murder
Sarah Ellen Johnson
[Affirmed; Nuss; Nov. 2, 2007]

1. Prosecutorial misconduct-improper definition of reasonable doubt
2. Judge's failure to recuse
3. Gruesome photos
4. Failure to appoint new counsel
State v. Darrell Farmer, No. 91,466 (Montgomery)
Direct appeal (reargument); First-degree Murder
Randall L. Hodgkinson
[Affirmed; McFarland; Feb. 1, 2008]

1. Sufficiency of underlying criminal discharge at an occupied vehicle
2. Failure to suppress statements obtained by appeal to religion
September 4, 2007-Tuesday-p.m.

State v. Gavin Scott, No. 83,801 (Sedgwick)
Direct appeal (reargument); Capital Murder & Death Sentence
Rebecca E. Woodman
[Aff'd in part, rev'd in part, death sentence vacated; per curiam; May 16, 2008]

1. Whether statute making tie at sentencing phase go to state violates Kansas Constitution
September 5, 2007-Wednesday-a.m.

State v. Donnie Ventris, No. 94,002 (Montgomery)
Direct appeal (petition for review); Aggravated Robbery
Matthew J. Edge
[Reversed and remanded; Rosen; Feb. 1, 2008]
[Cert petition granted Oct. 1, 2008]
[SCOTUS reversed KSC; Scalia; April 29, 2009]
[Conviction affirmed on remand from SCOTUS; Rosen; July 24, 2009]
  1. Improper impeachment with statements obtained in violation of right to counsel
  2. Failure to give prior bad acts limiting instruction

September 5, 2007-Wednesday-p.m.

State v. Mardoqueo Gutierrez, No. 94,317 (Lyon)
Direct appeal (petition for review); Att vol manslaughter
Korey A. Kaul
[Affirmed; Beier; Dec. 7, 2007]

1. Insufficient evidence of agg burglary based on vol manslaughter
2. No crime of attempted voluntary manslaughter
Alex Bellamy v. State, No. 94,365 (Sedgiwick)
K.S.A. 60-1507 appeal (petition for review)
Korey A. Kaul
[Reversed; Rosen; Dec. 7, 2007]

1. Standard of review when appellate court reviews summary denial
State v. Previn Araujo, No. 94,831 (Sedgwick)
Direct appeal (petition for review); Possession w/ intent to sell
Shawn E. Minihan
[Affirmed; Luckert; Nov. 2, 2007]

1. Confrontation Clause
Keith Barr v. State, No. 94,429 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Randall L. Hodgkinson
[Affirmed; per curiam; Nov. 14, 2008]

1. Exceptions that allow late direct appeal
September 6, 2007-Thursday-a.m.

State v. Thomas Murray, No. 94,619 (Douglas)
Direct appeal; First-degree Murder
Sarah Ellen Johnson
[Affirmed; Davis; Jan. 18, 2008]

1. Prosecutor misconduct--facts not in evidence/personal opinion
2. Improper admission that defendant invoked Fifth
3. Improper hearsay evidence admitted
State v. Billy Scott, No. 95,760 (Reno)
Direct appeal (transfer); Involuntary Manslaughter
Jennifer Conkling
[Reversed; Beier; Dec. 7, 2007]

1. Insufficient evidence that defendant's conduct caused death
2. Failure to instruct jury on proximate cause
3. Failure to instruct on lesser included offense (drinking contest)
4. Failure to specify act that was "commission of lawful act in unlawful manner"
Garnet Tolen v. State, No. 95,106 (Saline)
K.S.A. 60-1507 appeal (transfer)
Michael Holland
[Affirmed; Rosen; Feb. 1, 2008]

1. One year statute of limitations violates Kansas Constitution
September 7, 2007-Friday-a.m.

Joseph Guillory v. State, No. 96,610 (Washington)
K.S.A. 60-1507 appeal (petition for review)
Korey A. Kaul
[Dismissed; McFarland; Nov. 2, 2007]

1. Whether exception for late notice of appeal due to failure to inform of right to appeal should apply to K.S.A. 60-1507 appeal

Tod Pabst v. State, No. 97,139 (Thomas)
K.S.A. 60-1507 appeal (transfer)
Richard Ney
[Affirmed; Johnson; Sept. 19, 2008]

1. Associate prosecutor hired by victim had conflict of interest
2. IAC of trial and appeal counsel for failure to challenge prosecutor
3. IAC of trial counsel for failure to impeach coroner
4. Whether amended K.S.A. 60-1507 motion relates back for purposes of one-year statute of limitations

Saturday, July 28, 2007

Smurfing revisited

Carl F.A. Maughan won in State v. Maness, No. 96,024 (Kan. App. July 27, 2007)(unpublished), reversing a Sedgwick County conviction for possession of pseudoephedrine. Mr. Maness is the co-defendant to Glenda Glassock, who won her appeal several weeks ago. Here is my blog entry on that case, which includes a lot of the factual details of a practice called "smurfing." This COA panel agreed that officers violated the Fourth Amendment:
The separate purchase of cold pills by two individuals who return to an out-of-state vehicle, without more, does not rise to the level of reasonable suspicion. It would be difficult in a constitutional setting to find that facts insufficient to rise to reasonable suspicion for some persons can satisfy the reasonable suspicion standard simply because the individuals appear to be nonresidents.
The COA acknowledges the problem of "smurfing" but (properly) focuses on what information the officers had at the time of contact. The COA noted that the state "cites to no cases where courts have recognized one shopping trip was a sufficient pattern of activity as a basis for an investigative detention." That's good news for all of us who shop at stores for groceries, etc.

[Update: the state did not file a PR and the mandate issued on August 23, 2007].

Friday, July 27, 2007

Is that Crow dead?

Rachael Pickering won in State v. Laturner, No. 96,086 (Kan. App. July 27, 2007), reversing a Cherokee County possession conviction. The main issue had to do with a claim that K.S.A. 22-3437, allowing admission of lab test results without the chemist, is unconstitutional after Crawford. I had blogged about this issue here.

The KSC had held that the statute was constitutional in State v. Crow, 266 Kan. 690 (1999), largely using the rationale of Ohio v. Roberts. But, in Laturner, the COA noted that the KSC has also held that "'To the extent that the analysis in previous decisions of this court differs from the Controntation Clause analysis set forth in this opinion, these previous decisions are overuled.' Crow is, therefore, no longer good law."

The COA acknowledged that there is a wide split of authority among courts regarding whether lab reports are testimonial, but concluded that they are:

The lab report challenged by Laturner is testimonial. In identifying the category of witnesses whom a criminal defendant is entitled to confront, the Crawford Court defined a "witness" as "one who bears testimony" against an accused. It defined "testimony" as a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Testimonial statements are made by witnesses who bear testimony. "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." [Crawford v. Washington, 541 U.S. 36, 51 (2004)]. The Crawford Court identified three "formulations" of this core class of testimonial statements. These include the functional equivalent of ex parte in-court testimony, such as affidavits, and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." 541 U.S. at 51-52. The forensic scientist who prepared Laturner's lab report was a witness; the statements in her lab report were testimony; and she knew when preparing her report that it would be used by the State at Laturner's trial to prove he committed the crime of possessing methamphetamine.
This is an important issue being litigated across the country. The SCOTUS is likely to take up a case from somewhere in the next term or two to resolve the split. Or that's what Professor Friedman contemplates here at the Confrontation Blog.

[Update: the state filed a PR on August 20, 2007].

[Further update: the KSC granted the PR on December 19, 2007].

[Further update: on October 9, 2009, the KSC held that K.S.A 22-3437 is unconstitutional if it includes any requirement that a defendant make any showing beyond a confrontation clause objection to compel confrontation. As applied to Mr. Laturner, the KSC reversed and remanded for new trial. Here is the post reporting the KSC decision.]

Real opportunity to cross-examine

Quentin John Boone won in State v. Noah, No. 91,353, (Kan. July 27, 2007), reversing four Rooks County aggravated indecent liberties convictions. The issue involved admission of the victim's preliminary hearing testimony at trial. The KSC majority opinion narrowed the issue noting that the parties agreed the subject testimony was testimonial under Crawford and that the parties did not dispute that the witness was unavailable. The only issue was "whether Noah had a prior opportunity to cross-examine" the witness at preliminary hearing where the witness had become emotional and could not continue testifying.

The KSC noted that SCOTUS case law provides little guidance on what constitutes "an adequate opportunity" to cross-examine that would allow admission of preliminary hearing testimony. The KSC reviewed Fifth Circuit and Ninth Circuit cases and also SCOTUS case law on improper limitation of cross-examination and concluded that the cross-examination in this case was not adequate:
Our review of the entire record under these specific facts leads us to disagree with the State's argument that Noah had a sufficient opportunity to effectively cross-examine T.C. However, in reaching this conclusion, we also reject Noah's argument that the cross-examination is not sufficient until defense counsel determines that it is or unless it is completed. Rather, we adopt the case-by-case approach used by the Acosta and Wilmore courts.

In adopting this approach, we do not grant attorneys license to filibuster, purposely confuse, or harass children or other vulnerable witnesses in an attempt to make an otherwise competent witness unavailable. Nor do we want to give incentive for those same witnesses to be relieved of their obligation to be made "available" by answering only a few questions on cross-examination because it is uncomfortable or intimidating, and thereby defeating a defendant's right to confrontation. In this case, we acknowledge that T.C.'s inability to testify was not created by any intentional motivation to be unavailable. Further, while defense counsel's cross-examination may be characterized as confusing and unclear, we find no purposeful conduct that would rise to the level of intentionally attempting to disqualify T.C. as a competent witness. Applying the Van Arsdall standard to the facts of this case, we conclude that the limitation of Noah's cross-examination caused by T.C.'s inability to continue prohibited Noah from engaging in otherwise appropriate cross-examination aimed at exposing facts from which the jury could have drawn inferences about T.C.'s reliability.

Another case in the ever-evolving world of Confrontation Clause litigation.

What's it take to get a hearing?

Michael Whalen won in Swenson v. State, No. 94,207 (Kan. July 27, 2007), reversing summary dismissal of Mr. Swenson's K.S.A. 60-1507 motion in Sedgwick County. One issue involved potential IAC for failure of appellate counsel to file a petition for review, which was decided favorably and consistently with my previous blog entry (here). I thought another notable part of the Swenson decision was a claim regarding trial counsel failure to investigate a potential witness. The district court and COA had held that Mr. Swenson had failed to attach affidavits from the potential witness and as such had "failed to establish that his counsel was ineffective in this regard."

We see a lot of these type of 1507 rulings: "Conclusory allegations insufficient to require an evidentiary hearing. Summary dismissal." The problem is that such ruling essentially require a movant to prove his or her case to get a hearing, which is sort of putting the cart before the horse. The KSC rejected this rationale:

Swenson argues the Court of Appeals inappropriately imposed a burden on him to provide an affidavit from his mother with his petition. We agree.

Granted, a movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record. However, in stating the evidentiary basis, the K.S.A. 60-1507 motion must merely "set forth a factual background, names of witnesses or other sources of evidence to demonstrate that petitioner is entitled to relief." Consistent with this statement . . . the form approved by this court for K.S.A. 60-1507 motions, in effect at the time Swenson filed his motion, required: "State concisely all grounds on which you base your allegation that you are being held in custody unlawfully" and "[s]tate concisely and in the same order the facts which support each of the grounds set out . . . and the names and addresses of the witnesses or other evidence upon which you intend to rely to prove such facts." Supreme Court Rule 183. Thus, the rule does not require affidavits. Rather, this court has held it is error to deny a K.S.A. 60-1507 motion without a hearing where the motion alleges facts which do not appear in the original record but which, if true, would entitle the movant to relief, and the motion identifies readily available witnesses whose testimony would support such facts or other sources of evidence.

Under the rule and statute a hearing and appointment of counsel are supposed to be the norm, not the exception. Some of this language should help movants get those hearings.