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.