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 Sept. 21, 2007)(unpublished), getting a new trial in a Sedgwick County attempted first-degree murder prosecution.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.