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.