Wednesday, February 28, 2007

Topeka acquittal in murder case

Joe Huerter won an acquittal in State v. Patterson, a Shawnee County first-degree murder prosecution. Here is the Topeka Capital-Journal article reporting on the case.

Monday, February 26, 2007


Just thought I would introduce our newest appellate defender, Jocilyn Oyler. Jocilyn is a 2005 KU law grad (and Defender Project student) who has spent some time in private practice and also a little time in the Douglas County DA's office. I think this puts us up to full staff (or as full as we are likely to get).

Friday, February 23, 2007

Dyanamite instruction

Nathan Webb won in State v. Phillips, Appeal No. 95,561 (Kan. App. Feb. 23, 2007)(unpublished), reversing a Miami County sale conviction. The state charged Mr. Phillips with four drug offenses. After deliberating a few hours, the jury acquitted Mr. Phillips on three charges and announced that it was hung on the sale charge. The district judge gave an Allen instruction, even though the prosecutor "mentioned the danger in reading this controversial instruction." The jury returned a guilty verdict on the sale charge shortly thereafter.

The prosecutor was right and the COA held that giving the Allen instruction after deliberations had started was improperly coercive. The COA also held that there was not overwhelming evidence of guilt and therefore reversed the conviction and remanded for new trial. Korey Kaul noted that it is an odd harmless error analysis--how can evidence be overwhelming if the jury is hung? Isn't that perhaps the best evidence that the evidence is not overwhelming? Weird. But a win for this client.

[Update: the state did not file a petition for review and the mandate issued on March 29, 2007]

Speedy trial win

I won today in State v. Stout, Appeal No. 95,825 (Kan. App. Feb. 23, 2007)(unpublished), affirming Judge Tuggle's dismissal of a Mitchell County kidnapping and aggravated burglary prosecution on statutory speedy trial grounds. The state appealed arguing that the district judge had failed to take into account all of the Barker v. Wingo, 407 U.S. 514 (1972) (discussing constitutional speedy trial right) factors before dismissal. The COA agreed with me that
The State's exclusive reliance on the Barker factors reflects a fundamental misunderstanding of the rights of a criminal defendant to a speedy trial in Kansas. Such rights are protected in Kansas both by statute and constitutional provisions; the statutory provision establishes definite limits within which a defendant must be brought to trial. . . . If the statutory limits have been exceeded, there is no need for a constitutional analysis.

Because there was really little doubt that the statutory limits had been exceeded, the COA affirmed the dismissal. As a side note, I argued this case on February 6 and got a decision on February 23. Seventeen days from argument to decision may be a record for me (a speedy appeal!).

[Update: the state did not file a petition for review and the mandate issued on March 29, 2007]

Thursday, February 22, 2007

Short list for COA

Here is the news release announcing the short list for the current COA vacancy: Steve Obermeier, Glenn Braun, and District Judge Steve Leben. I thought my interview with the Commission went okay--they are certainly a cordial group. In any case, I thank everyone who wrote letters of support on my behalf and for your good thoughts and wishes. Judge Leben is a testament to the fact that sometimes it takes several tries to get through the process, so I'm sure I will try, try again someday!

Missouri gets Batson

In honor of my friend and colleague, Janine Cox, I wanted to just note this Missouri COA case reversing a murder conviction on Batson grounds. I won't generally blog on other states' cases, but Janine has been steadfast in her work on Batson and keeps hope alive that, one day, a Kansas court will actually give some teeth to Batson.

Wednesday, February 21, 2007

Even a couple more Fourth Amendment wins

Rick Kittel won in State v. Yotter, Appeal No. 95,436 (Kan. App. Feb. 16, 2007)(unpublished), reversing a Harvey County possession conviction. A Newton police officer went to a grocery store to respond to a trespass complaint (Ms. Yotter had been told to stay out of the store and had returned). The officer told her that he was to going to arrest her, but that he was giving her a notice to appear for criminal trespass. The officer told Ms. Yotter that he would escort her out of the store. As they began to walk out, the officer asked if she had anything illegal on her person, she said no and the officer asked for permission to look in her purse. Ms. Yotter held it open and the officer found drugs inside.

The COA noted that the state had not argued that the officer had reasonable suspicion, but only that the encounter had become voluntary, which did not require reasonable suspicion. The COA applied the well-defined test whether at the time the detention purportedly terminated, a reasonable person in the defednant's position would have felt free to disregard the police and go about his or her business. The COA found the answer easy:

When Yotter left the detention room, she had been informed that it was a crime for her to remain inside [the store] and that the law enforcement officer would escort her out of the store. A reasonable person in those circumstances would perceive that she could not disregard [the officer] and resume shopping . . . or otherwise go about her business at that time and in that place. . . . . In order to characterize Yotter's interaction with [the officer] in the hallway outside the detntion room as a voluntary encounter, one must ignore the totality of the circumstances and suspend all rational thought. We are not prepared to do so.

Heather Cessna won in State v. Oetken, Appeal No. 95,505 (Kan. App. Feb. 16, 2007) (unpublished), reversing a Barton County possession conviction. This is another Lt. Columbo gambit case. See here for previous blogging on this subject. A truck was stopped for no tag light and Ms. Oetken, the driver, was ordered out while the officer conducted a license check. After confirming that none of the truck's occupants had any outstanding warrants, the officer returned the licence to Ms. Oetken and told her she was free to go. As she walked back to the truck, the officer "asked her if she had a couple of seconds [so] that [he] could spike with her." She agreed and circumstances led to a search of the truck uncovering drugs. Again, the test is whether a reasonable person would feel free to leave:

After receiving an all clear from dispatch, the officer gave Oetken the licenses back and told her she was free to go. The officer then questioned Oetken again, this time between two vehicles. Chapman was still in the truck during all this time. [The passenger] was still in the truck during all this time. The State has not established that [the passenter] ever heard the conversations between Oetken and the officer or that he was otherwise informed the occupants of the car were free to leave. With no break in time, the officer then proceeded to the passenter side of the truck and asked [the passenger] if he could talk to him. On these facts, we must conclude that , a reasonable passenger and owner of the stopped vehicle would not have felt free to leave.
[Update: the state did not file a PR in Yotter and the mandate isued on March 22, 2007]

[Update: the state filed a PR in Oetken on February 28, 2007]

[Further update: the KSC denied the state's PR in Oetken on May 8, 2007]

Friday, February 16, 2007

Semifit means no fit

Another good day for the Fourth Amendment.

Rachel Pickering won in State v. Anguiano, No. 95,716 (Kan. App. Feb. 16, 2007), reversing a Seward County possession conviction after a stop without reasonable suspicion. The COA described the issue as follows:
The only bases stated by the officer were (i) that Anguiano "semifit" a description of someone wanted on a felony warrant and (ii) Anguiano's statement that he was "coming from National Beef" did not make sense to the officer given the direction of Anguiano's travel. We conclude that neither of these bases, whether considered separately or together, supported a reasonable suspicion of criminal activity.

Rick Kittel and Heather Cessna won in two other unpublished cases on Fourth Amendment grounds. I will update soon with details, so check back!

[Update: the state did not file a PR and the mandate issued March 22, 2007]

Tuesday, February 13, 2007

Judge's refusal to certify as an adult affirmed

In my last post, I blogged about a ruling in a juvenile case, which is just as applicable in a criminal case. I wonder if a lot of juvenile cases go under my radar? (Like with states' appeals, the answer is probably). Anyway, I did a search of 2006 juvenile cases in the COA and found three related cases that I thought worth mentioning.

James T. Yoakum represented C.E., Patricia Kalb represented, B.A.M., and William Mahoney represented B.M.J., each juveniles charged in Wyandotte County with felony murder and aggravated robbery. The state sought prosecution as adults, but the district court held that the presumption in favor of prosecuting juveniles charged with such crimes had been rebutted and refused to certify (which is an appealable order). The COA affirmed in In re C.E., No. 95,623 (Kan. App. Sept. 8, 2006), and In re B.A.M., No. 95, 624 (Kan. App. Sept. 8, 2006), and In re B.M.J., No. 95,625 (Kan. App. Sept. 8, 2006), (all unpublished), holding that the evidence supported Judge Boal's decision.

What huge wins. I've had more than one juvenile client who will likely be imprisoned their entire adult lifes under a felony murder sentence for an act committed while a teenager.

Keep me up to date if there are any good juvenile cases that could impact adult criminal cases.

[Update: the state did not petition for review and the mandate issued in each of these cases on October 12, 2006].

You can't judge a book by its cover

Rex Lane won in In re J.C.J. No. 96,542 (Kan. App. Feb. 2, 2007)(unpublished), reversing an Atchison County juvenile adjudication for voluntary unlawful sexual relations on sufficiency grounds. J.C.J. claimed that at no point during the adjudication proceedings did the state provide any evidence of her age or the age of her partner, which are essential elements of the offense. The state argued that the district judge saw the two in person. But the COA held that oroof of an essential element requires evidence:
While it is true that some elements of an offense may be proved by circumstantial evidence and the logical inferences therefrom, the mere physical appearances of J.C.J. and J.C. do not present sufficient evidence to prove the ages of J.C.J. and J.C. beyond a reasonable doubt.

This could be important in many different contexts. It is also important for trial practitioners to remember that physical gestures or other facts that may be obvious to everyone in a courtroom are not obvious in a transcript. For example, if the cop physically dwarfs your client, make sure the written record reflects that fact, which may be very important in coercion/consent cases.

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

Habeas due process

Debra Wilson won in Stevenson v. State, No. 96,082 (Kan. App. Feb. 9, 2007)(unpublished), reversing a denial of Mr. Stevenson's 1507 motion. The district court had granted the state's motion to dismiss the motion as untimely. The COA held that the district court violated Mr. Stevenson's right to due process in the habeas proceeding:
The record on appeal suggests that Stevenson may not have received notice of the hearing scheduled by the district court. More importantly, however, the record is crystal clear that the district court did conduct a hearing at which the State was represented by an attorney but that the movant was neither present nor represented by counsel. Therefore, the State was permitted to argue for the imposition of the 1-year limitation, but Stevenson was denied the opportunity to argue for an extension of the time limitation "to prevent a manifest injustice." K.S.A. 60-1507(f)(2). The district court effected the absence of a voice to represent Stevenson's interests, presenting a textbook example of a procedural due process violation.

This COA rejects the state's attempt to find that the record clearly established that the motion was untimely and did not consider the merits (or lack thereof) of the motion as relevant. The point is that, if the district court has a hearing and the state appears, the defendant must appear, either in person or by appointed counsel.

[The state did not file a petition for review and the mandate issued on March 15, 2007]

Speedy trial reversal

Edward C. Gillette won in State v. Dobbels, No. 94,808 (Kan. App. Feb. 9, 2007)(unpublished), reversing a Johnson County felony DUI conviction on statutory speedy trial grounds. Here is an excerpt from the decision:
Everyone agrees that 22-3402 would have permitted Dobbels to be tried on April 4, 2005. However, at the April 1, 2005, pretrial conference, the State requested a continuance because a law enforcement officer would be unavailable for the trial due to the death of the officer's mother. That scenario is specifically addressed in K.S.A.2005 Supp. 22-3402(5)(c) . . . . Unfortunately, the State did not proceed under subsection (5)(c), either in requesting the continuance or in arguing against defendant's dismissal motion. Likewise, the district court did not make any findings relative to the requisite materiality, unavailability, reasonable efforts to obtain, or future availability of the officer's testimony. Although one can perceive that the State might well have been able to obtain the requested continuance under 22-3402(5)(c), we feel constrained from supplying the factual findings necessary to apply that provision.

Nice decision.

[Update: the state filed a PR on March 12, 2007].

[Further update: the KSC denied the PR and the mandate issued on June 25, 2007].

Better not risk getting a fair trial

Paige Nichols noted this recent 10th Circuit case, which affirmed a 97-month sentence after reversing the defendant's original 78-month sentence and remanding for resentencing. What caught Paige's attention, and was also blogged about here by Professor Berman at Sentencing Law and Policy is Judge McConnell's concurrence opining about the inherent unfairness of a defendant succeeding on appeal and being punished:
If these speculations are valid, defendants may be wary of appealing lest, on remand, the probation office and the prosecution revisit the Sentencing Guidelines calculations and calculate a higher range. This opportunity for sentence recalculation is effectively a tax--payable in months or even years of additional prison time--on taking an appeal. This strikes me as unfair to the defendant and bad for the system. Appeals serve an important function, and we should not create disincentives for criminal defendants to appeal when they have meritorious grounds for doing so.

Judge McConnell wonders whether "law of the case" doctrine should be applied to such situations to prevent the prosecutor from obtaining increased sentences on successful appeals.

I have complained about such unfairness, which clearly exists in Kansas. In State v. Patry, the KSC ruled that the Double Jeopardy Clause does not prevent the state from using increased criminal history after a defendant is succesful on some appeal issue. I have previously pointed out the irony of this situation. Although legislators and talking heads often complain about clients who bring "frivolous appeals," the operation of law, as interpreted by these courts, actually punishes ONLY those who have meritorious appeals. And, as a practical matter, Judge McConnell is right, it can chill the right to an appeal (or absolutely choke it off).

Patry is a 1998 (i.e. pre-Apprendi) case. Professor Berman also just blogged (here) about a Ninth Circuit case applying the Double Jeopardy Clause to restrict the state's ability to appeal a sentencing determination. Professor Berman noted that "There are significant Apprendi-related aspects to this ruling." This type of post-Apprendi argument cuts against the Patry reasoning and we should be citing Apprendi in any case involving an increase after an appeal.

In fact, I have thought since Apprendi, that one of the biggest impacts of overruling Almendarez-Torres and fully applying Apprendi to all facts, including prior convictions, would be to try to apply Double Jeopardy/compulsory joinder protection in exactly such circumstances.

Mistrial in Lawrence

Ron Evans got a mistrial in State v. Rose, a high-profile Douglas County arson/murder prosecution, due to disclosure of a state witness after the trial started. Here is the Lawrence Journal-World article with the details.

Monday, February 12, 2007

Mistrial in Wichita

John Kerns got a mistrial in State v. Penn, a Sedgwick County rape/agg sodomy prosecution due to the prosecutor's failure to turn over Brady material. I haven't practiced in Wichita since 1994, but it's interesting to hear that the same prosecutor is up to the same tactics. Thanks to Jeff Wicks for the tip.

Friday, February 09, 2007

Felony murder conviction reversed

B. Joyce Yeager won reversal of a felony-murder conviction in State v. Horton, No. 93,982 (Kan. Feb. 2, 2007), a fairly high profile Johnson County felony murder conviction stemming from Liz Wilson's disappearance and death in 1974. The KSC applied its recent decision in State v. Gunby holding that prior bad act evidence involving Mr. Horton and another girl (Joy) were not sufficiently similar to be admissible:
In this case, the State fails to demonstrate sufficient similarity between Liz' disappearance and death and Joy Creager's allegations of sexual abuse. The only similarity appears to be the girls' ages. Liz was 13 years old, and Joy was 14 years old. Joy testified that she willingly accompanied Horton to a nearby golf course for the purpose of getting high by inhaling chloroform. Joy stated that Horton poured the chloroform on a rag and handed it to her. When Joy did not like the smell, Horton encouraged her to inhale the chloroform by pushing the rag back to Joy's face. After she had inhaled the chloroform, Joy testified she passed out and awoke to find her pants off and Horton's fingers in her vagina. However, there is no evidence that Liz inhaled chloroform, no evidence that Liz was rendered unconscious by chloroform, and no evidence that Liz was sexually molested. Because there is no evidence to establish a similarity between what happened to Joy and what happened to Liz, Joy's testimony is not relevant to prove any disputed material facts.

The KSC held that the improper admission was not harmless and reversed. The KSC went on to reach an issue regarding whether the state has made a sufficient case at preliminary hearing to bind over Mr. Horton. Noting that defense counsel had filed a motion to dismiss after prelim and noting that the error at preliminary hearing involved Joy's testimony, it also considered whether the state showed probable cause at the preliminary hearing:

Although the State presented evidence that Liz died, it did not present any evidence regarding the cause of Liz' death. The doctor's testimony that chloroform can be fatal does not support an inference that Liz died due to chloroform inhalation. Likewise, Horton's possession of chloroform does not support an inference that Liz died due to chloroform inhalation because the State failed to present any evidence to indicate the amount of chloroform that was in the bottles. Without that evidence, there is no support for the inference that Horton used some of the chloroform in the bottles to kill Liz.

The State's evidence established that Horton was at the high school when Liz was last seen, and he took an extended dinner break shortly after the time that Liz was last seen. Horton also had access to a potentially lethal chemical. The circumstantial evidence that Horton was working near the place where Liz was last seen and had a potentially lethal chemical in his trunk is insufficient to convince us that a person of ordinary prudence and caution would conscientiously entertain reasonable belief that Horton killed Liz.

Likewise, we find that the State has failed to establish any evidence that Horton kidnapped Liz. At Horton's trial, the State presented evidence regarding hairs found inside the high school and Horton's car. However, the State did not present any evidence regarding the hairs at the preliminary hearing. Without any physical evidence to establish a possible link between Liz and Horton's car or the high school building, there is insufficient evidence to convince us that a person of ordinary prudence and caution would conscientiously entertain a reasonable belief that Horton kidnapped Liz.

Finally, we find no evidence to support the State's theory that Horton intended to commit indecent liberties with Liz. There is no evidence that Liz was sexually molested. Without Joy Creager's testimony, the only evidence that could be construed to infer Horton's intent is the tennis player's testimony that she presumed Horton wanted her to stand on his shoulders to shut off a water valve. However, Horton did not attempt to touch the girl or force her inside the building. We find this evidence insufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that Horton intended to sexually molest Liz.

As a result, the KSC dismissed the complaint. It is a little difficult to understand why, if the evidence was insufficient, the remedy was not acquittal? Kansas appellate courts have not traditionally reached preliminary hearing errors (on the theory that any problem is corrected by a trial with proof beyond a reasonable doubt). But, after this decision, practitioners may want to reconsider the value in filing a timely motion to dismiss after a close prelim. Kudos to Michael McCullough at the Olathe PD office for making a good record.

Here is the Kansas City Star article reporting on the case.

Wednesday, February 07, 2007

20 apply for COA vacancy

Here is the news release announcing the candidates who put their names in the hat for the COA vacancy created by Lee Johnsons appointment to the KSC. As you can see, I put my name in again. And there are lots of good nominees that I recognize. So if you have input on any of the nominees, be sure to write to the Supreme Court Nominating Commission at the address shown in the release. The interviews are to be scheduled for February 20-21, so any letters would need to be received before then.

Here is a Topeka Capital-Journal article on the subject. Here is a Lawrence Journal-World article on the subject.

Saturday, February 03, 2007

Fourth Amendment win

Rick Kittel won in State v. Bastian, No. 95,651 (Kan. App. Feb. 2, 2007), reversing a Butler County possession conviction on Fourth Amendment grounds. This case was an appeal after a trial on stipulated facts. Apparently the state argued that the suppression issue was not preserved, but the COA held that the contemporaneous objection rule did not apply where the trial judge was the same judge that heard and decided the motion and where there was no additional evidence. The COA agreed with the state that the officer had reasonable suspicion to initially detain because a house-sitter called police and reported that an unknown person had parked a pickup truck under the deck of the house. The COA also upheld a paraphernalia conviction stemming from a syringe found in the pickup found during a search of the pickup. But the COA held that the officer's order that Mr. Bastian empty his pockets exceeded a proper pat-down search, violating the Fourth Amendment:

When Stewart saw the unspent cartridge in the pickup, he had a reasonable suspicion that Bastian was armed. During an investigative detention, if an officer reasonably suspects that personal safety requires it, the officer may frisk the seized person for firearms or other dangerous weapons. K.S.A. 22-2402(2). However, Bastian had already been patted down by Ball, "a capable and competent officer," when Bastian first got out of the pickup. Further, the pat-down frisk for weapons authorized by K.S.A. 22-2402 is not the same as a search inside a suspect's pockets. . . . When Stewart directed Bastian to empty his pockets in anticipation of a second pat-down search, Stewart violated Bastian's Fourth Amendment rights. He had no probable cause to search Bastian's person beyond a pat-down frisk to search for weapons.
This is a nice decision, both on the procedural ruling and the merits.

Here is the coverage on

[Update: the state did not file a PR in Bastian and the mandate issues on March 8, 2007].