Sunday, April 29, 2007

Couple of McAdam cases

Michelle Davis won in State v. Thomas, No. 95,733 (Kan. April 27, 2007), getting a late direct appeal and a State v. McAdam resentencing in a McPherson County manufacture prosecution. The district court had already found that an Ortiz factor applied. But the state argued (1) that because McAdam might not yet have been decided if Mr. Thomas had filed a timely notice of appeal, it should not apply in his case and (2) Ortiz shouldn't apply in guidelines cases. The KSC rejected both arguments, agreeing with the COA on the first point that such a prediction is totally speculative and noting that the second point is at least implicitly rejected in State v. Barnes.

Kent Roth won in State v. Harp, No. 94,322 (Kan. April 27, 2007), getting a late direct appeal and McAdam sentence in a Rice County manufacture prosecution. This case had a particularly convoluted procedural history. But the KSC notably agreed with Mr. Harp that general awareness of appeal rights is not sufficient:

A transcript of the Ortiz hearing, which we have reviewed, is included in the record on appeal and does not reflect a defendant with a full awareness of his appellate rights.

At that hearing, Harp testified and indicated that, at his 2002 sentencing, defense counsel did not advise him of his right to appeal the sentence within 10 days. Harp further indicated that, had his attorney so advised him and told him the sentence might be shortened under the identical offense doctrine, he would have instructed defense counsel to appeal. Harp denied being informed of his appellate remedies, the steps necessary to implement an appeal, or the possibility of an appeal on the identical offense doctrine. There was no indication that a written waiver of Harp's right to appeal was obtained pursuant to K.A.R. 105-3-9. Harp's testimony indicated that defense counsel did not present such a document to him in 2002.

On cross-examination, Harp basically admitted having a general awareness of the right to appeal. However, he testified that he did not know he could appeal a plea bargain.

This is pretty significant as we have been arguing a lot of these lingering post-McAdam, post-Bryant, post-Phinney cases where there was some mention of appeal rights, but either it was not adequate or was in some other way ambiguous. This case correctly holds that some knowledge about an appeal is not enough. Full, correct knowledge should be found before waiver.

Agg indecent solicitation not a lesser of agg indecent liberties

I won in State v. Johnson, No. 91,867 (Kan. April 27, 2007), reversing a Shawnee County agg indecent solicitation of a child conviction. I won't bore you with the details, but the state had requested solicitation as a lesser and got that verdict. I argued that under State v. Dickson, particularly as charged and instructed, solicitation is not a lesser. The KSC agreed and reversed Mr. Johnson's sentence. He has already served the entire probation and was discharged some time ago, so it is somewhat of a Pyrrhic victory. But at least the conviction won't be on his record.

I guess the lesson is that the KSC is taking a pretty strict construction of some of these statutes, so if you are dealing with sex offenses, be sure to look closely at the charging document and the statute.

Friday, April 27, 2007

Criminal deprivation not a lesser of theft

Nathan Webb and Carl Folsom won in State v. McKissack, No. 93, 670 (Kan. April 27, 2007), reversing Sedgwick County burglary and criminal deprivation convictions. Mr. McKissack was charged with vehicular burglary based on intent to take a stereo. But there was ample evidence that he was just engaged in a prank and did not intend to permanently deprive. The district court gave an instruction for criminal deprivation as a lesser of theft. During deliberations, the jury asked for clarification of whether burglary could be based on criminal deprivation (which it cannot). The district court did not clarify, but referred the jury to the instructions. The jury convicted of burglary and criminal deprivation and acquitted of theft.

The KSC reversed some older precedent holding that under the strict elements test, criminal deprivation is not a lesser of theft. As a result, the district court lacked jurisdiction to convict of criminal deprivation. And because the instructions were not clear, the court also reversed the burglary conviction:
Under these unique circumstances, there is a real possibility that the jury based its conviction of burglary not on other evidence produced at trial but rather upon defendant's conviction of criminal deprivation of property. We therefore reverse defendant's burglary conviction, not on the basis of inconsistent verdicts or sufficiency of evidence, but rather on the basis that we have no confidence in the guilty verdict rendered in light of the jury's question to the trial court during its deliberations and the erroneous instructions by the trial court.
A nice result--I would be glad to see this type of clear error analysis applied in other cases, especially where juries ask questions.

Maybe it's not still America?

JoAn M. Lindfors and Pamela S. Sullivan of the Salina PDs office won in State v. Lee, No. 95,348 (Kan. April 27, 2007), affirming Judge Hebert's suppression ruling. Officers received word of a person acting sort of strangely in a city part and while investigating sought to pat him down, eventually uncovering drugs. Judge Hebert had suppressed the evidence stating that:
This is still America, and I don't think the fact that somebody is allegedly acting strange or, quote, looked out of place in a park, waives that person's rights as a citizen. The officers ascertained his identity and his business and that was all they had a right or responsibility to do at this point.

But the KSC disagreed with Judge Hebert and held that the encounter between police and Mr. Lee was a consensual encounter and, therefore, the resultant consent to pat-down for weapons did not implicate the Fourth Amendment. One interesting part of that decision in relation to some recent Lt. Columbo cases is that the KSC explicitly relied on Mr. Lee's subjective belief regarding whether he felt free to leave (he testified that he did feel free to go about his business).

The KSC did hold, however, that the scope of the consent was a search for weapons and that after conducting that pat-down and feeling an indeterminate object, the nature of the object was outside the scope of consent and not immediately apparent and, therefore, not subject to the "plain feel" doctrine. So the KSC ultimately upheld the suppression order.

Here is the coverage on

Statement suppressed

R. Bruce Kips won a motion to suppress statements in U.S. v. Garcia, No. 06-20160-04-JWL (D. Kan. March 28, 2007). The main issue was whether Ms. Garcia was in custody:

Although the Government portrays the questioning itself as a polite conversation without threats and with guns put away, the events that immediately preceded the questioning and the particular questions themselves cannot so easily be dismissed. There is no doubt that the interrogation of Ms. Garcia took place in a highly charged atmosphere. Because the officers were in full control of the questioning environment, custody is more easily found here.
As a result, the District Judge Lungstrum suppressed the statements pursuant to Miranda. Thanks to Chuck Cavanee for updating me on the attorney of record in this case.

Wednesday, April 25, 2007

Batson remand

Elizabeth Cateforis at the KU Defender Project won in State v. Davis, No. 93,907 (Kan. App. April 20, 2007), getting a remand on a Batson v. Kentucky, 476 U.S. 79 (1986) issue. The prosecutor struck a black juror because he appeared "too intelligent." The COA held that the reasons given for stricking the juror were suspect:

A review of the voir dire transcript reveals that the information provided by V.S. indicating that he might be overly intelligent or that he might overanalyze the case was that he was a master control operator for a television station and that he had previously served on a civil jury. The final jury panel, however, contained members who had jobs that would require highly technical tasks or higher education. Moreover, one of the final members had previously been on the jury of a criminal trial. The United States Supreme Court in Miller-El [v. Dretke, 545 U.S. 231, 241 (2005)], recognized: "If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step."
I guess it strikes me as sort of funny that the prosecutor is looking for jurors that won't pay close attention to details, I suppose like the burden of proof and the jury instructions. But then, I've never been a prosecutor.

[Update: the state did not file a PR and the mandate issued on May 24, 2007]

Monday, April 23, 2007

Speedy trial dismissal

Here is a Topeka Capital-Journal article reporting that District Judge Stutzman dismissed a Riley County kidnapping and assault prosecution in State v. Gresham, based on a speedy trial violation.

Leben new COA judge

Here is the governor's press release announcing the appointment of District Judge Steve Leben to fill the COA vacancy created by Lee Johnson's elevation to the KSC. So I guess now there's a vacancy on the 10th Judicial District bench for anyone who is interested. Here is a Lawrence Journal-World article reporting on the appointment.

Thursday, April 19, 2007

New blog capability

Thanks to the fine folks in the Washburn Law School IT department, I now have the capability to .pdf documents and put links in my blog entries to those .pdfs. So I should soon be able to have links to the unpublished decisions I write about. Are there other things out there that you, my gracious readers, would like to have access to (briefs in the cases blogged about, district court rulings, or what)? And, if you have documents or exhibits that you think would be of interest to readers of this blog, send them to me and I can upload them now.

Please respond with what would be useful to you.

Wednesday, April 18, 2007

Curtilage and Knock & Talk

The KSC affirmed in State v. Fisher, No. 89,300 (Kan. March 16, 2007), but not before making some pretty good Fourth Amendment law. The issue had to do with whether a trash bag was within the curtilage of a rural farm house and whether officers could seize the trash bag while walking up and around the house for a knock-and-talk. After a detailed factual analysis, the KSC found that the bag was located within the curtilage:
Based upon these facts, particularly this rural environment, we independently conclude the trash bag was found within the curtilage. We hold that in rural Kansas, Fisher's area "'harbors the intimate activity associated with the "sanctity of a person's home and the privacies of life,"'" [United States v. Dunn, 480 U.S. 294, 300 (1987)].

The KSC split on the issue of whether the officers could conduct a knock-and-talk to get into position to seize the bag under the plain view doctrine. The majority held that they could not:
We specifically disapprove of any State attempt to "piggyback," i.e., to observe an object in open view from off the premises, to use knock and–in these cases, unsuccessful–talk for justified entry onto the premises, and then assert plain view while on the premises as a legal basis to seize the identical object that had been observed earlier. Such piggybacking under these facts would smear the careful distinctions drawn by the Horton [v. California, 496 U.S. 128 (1990)] Court between the right to merely observe an object (here, from off the premises) and the right to seize that object (on the premises). From a practical standpoint, this piggyback practice would grant law enforcement the right to seize virtually any object initially observed from a distance and subsequently located within plain view of a residential doorway by an officer purposely looking for that identical object.

Three justices held that the search of the house was still lawful because after information about the contents of the bag were excised from the affidavit, probable cause still existed. Three justices held that the seizure of the bag during the knock-and-talk was not illegal. Justice Allegrucci held that the seizure of the bag was illegal and would have suppressed all of the evidence.

Big speedy trial win

Michelle Davis won in State v. Adams, No. 93,640 (Kan. March 16, 2007), reversing several Geary County drug convictions on statutory speedy trial grounds. This case is both procedurally and substantively pretty stunning. Although the speedy trial issue had been raised below, the ADO did not raise it on appeal, because there was some law that was pretty bad for us on the issue. And after the convictions were affirmed by the COA, the KSC granted review on a sentencing issue only. But, after granting review, the KSC ordered supplemental briefs on the speedy trial issue, and here is the decision.

The substance of the decision is important becuase it applies the 180-day limit, even if a client is being held on more than one charge. Under some other precedent, we were led to believe that if a client is being held on more than one charge, no statutory limit applied. But the KSC holds otherwise and determined (correctly) that Mr. Adams had been held more than 180 days and was entitled to discharge.

So, be sure to look carefully at any cases where a client is being held pending more than one charge. This is pretty new law and many prosecutors/judges may not be aware of the ruling. So when you get to 180-days, files those motions for discharge!

Tuesday, April 17, 2007

But I didn't want to go to jail!

I saw this post over on California Appellate Project and thought I would link to it here. I have seen a few of these cases in Kansas, where the cops arrest you for whatever and then tell you if you have any contraband on your person, you better give it up or be arrested for trafficking. Then you get charged with possession. As this decision illustrates, I think this would support a colorable Fourth/Fifth Amendment type argument, if raised at a suppression hearing.

Habeas win in Tenth Circuit

Jean K. Gilles Phillips at the KU Defender Project won habeas relief in Trammell v. McKune, No. 06-3316 (10th Cir. April 12, 2007), ordering a new trial in a Johnson County aggravated robbery case. The prosecution had failed to turn over some evidence that was directly related to Mr. Trammell's defense. When the evidence came to light before sentencing, Mr. Trammell moved for a new trial, but the district court refused and the denial was affirmed on direct appeal. (See here). The Tenth Circuit noted that the state agreed that the state courts had applied the wrong standard for reviewing a Brady claim and therefore reviewed the habeas claim de novo:
This is a close case. The eyewitness identifications, though occurring under seemingly questionable circumstances, were nonetheless consistent despite thorough cross-examination. We are not certain that timely disclosure of the Amoco receipts would have resulted in a different result. But that is not the standard. We need to be convinced only that "the government's evidentiary suppression undermines confidence in the outcome of the trial." Kyles [v. Whitley, 514 U.S. 419, 434 (1995)](internal quotation marks omitted). Of this we are persuaded.

Congrats to Jean and to state trial and appellate counsel for preserving this federal issue for further review. I bet it's not the only case where the wrong standard was applied.

Protective sweep only applies to arrest

Gregory D. Bell won in State v. Lemons, No. 96,400 (Kan. App. April 13, 2007), affirming Judge Dickinson's suppression order in a Harvey County drug prosecution. The officers were investigating a possible manufacture and conducted a protective sweep of a house. They had not made an arrest and did not have a warrant for an arrest. Because a protective sweep can only apply incident to an arrest, the COA affirmed.

[Update: the state did not file a PR and the mandate issued on May 17, 2007]

Friday, April 13, 2007

Not guilty verdict in Wichita makes national news

A Wichita Eagle article reported that Lacy Gilmour and Shannon Cooper won an acquittal in State v. Wimberly after a two-day trial for allegedly stealing a couple hot dogs from a Quik Trip in Wichita. The article does a nice job of showing how stupid and wasteful some of these recidivist laws can be and casts the public defenders in a good (if overburdened) light. The case was featured on CourtTV and the legal system in Wichita was given the bronze medal for "Worst person in the world" on the April 9 Countdown with Keith Olbermann on MSNBC. Take a second to look at the video--what a sympathetic-looking client.

[Note: the link to the Wichita Eagle article expired.]

Wednesday, April 11, 2007

Acquittal in 30 minutes or less or it's free

Here is the front-page Topeka Capital-Journal article reporting that Cindy Sewell and Jennifer Roth won an acquittal in State v. Lopez-Reyes ending a Shawnee County felony-murder prosecution based on accusations of shaken-baby of Mr. Lopez-Reyes child. The article notes that a "big factor" was a change in the tesimony of coroner Erik Mitchell who indicated when recalled to the stand that he had reviewed the case and "concluded there was an outside possibility that there were other explanations for the child's death." The jury, correctly, found that this meant there was a reasonable doubt and acquitted. Nice job Cindy and Jennifer.

New sentencing commission appointments

Here is the governor's press release announcing that Dan Monnat and Thomas Drees have been appointed to fill expiring terms on the Kansas Sentencing Commission. Given Dan's long and distinguished career in criminal defense, he is a great choice for the defense attorney appointment on the Commission. Here is a Wichita Eagle article showing that some fanatics have to protest anything that Dr. Tiller related. I wonder if this is the first time that a Sentencing Commission appointment made the news? And I wonder if some of the talking heads even know what the Sentencing Commission does?

Tuesday, April 10, 2007

Pro se petitioner gets day in court

I was just perusing the Tenth Circuit cases and saw that Michael Strope won a remand of his civil rights claims to district court in Strope v. McKune after previously losing in federal district court and in the Tenth Circuit. Mr. Strope filed a pro se cert petition in the SCOTUS and that court GVR'd the case pursuant to its recent case in Jones v. Bock, 127 S.Ct. 910 (2007). I don't know if Mr. Strope had any help. But I do know that Mr. Strope now has a much better batting average in the SCOTUS than me!

Friday, April 06, 2007

Limon wins again

Janine Cox and Nathan Webb won in State v. Limon, No. 96,013 (Kan. App. April 6, 2007)(unpublished), reversing an aggravated post-release supervision period imposed in this Miami County case on resentencing. This is the latest (and hopefully last) case in a long-running and sad saga. Matthew Limon was originally charged and convicted of criminal sodomy for consensual sodomy with a teenage boy in 2000. Had they been opposite sex, Matthew would have been convicted of unlawful voluntary sexual relations (enacted in 1999) and gotten a maximum of 15 months. As it stood, he received a presuptive sentence of 206 months (just over 17 years).

His direct appeal was docketed by the ADO on September 19, 2000. Dan Estes wrote the brief and Paige Nichols argued the case to the COA after Dan left the ADO for private practice. The ACLU also filed an amicus brief in support of Matthew. The COA affirmed on February 1, 2002, holding that Bowers v. Hardwick governed. The KSC denied review.

Due to the glaring inquity, this case was taking on increasing public notice. Here is a article relating Matthew's story. And here is The Pitch article about Matthew.

The ACLU filed a cert petition for Matthew and, while it was pending, the SCOTUS decided Lawrence v. Texas, 123 S.Ct. 2472 (2003), overruling Bowers. On June 27, 2003, the SCOTUS granted Matthew's cert petition, vacated the COA decision and remanded with directions to reconsider in light of Lawrence. Here is the New York Times article reporting on the GVR.

So, back to the COA, who reheard the case. On January 30, 2004, in a very fractured opinion, the COA again affirmed Matthew's sentence with one judge holding that Lawrence was factually and legally distinguishable, one judge concurring, and one judge dissenting. Matthew again filed a PR, and this time the KSC granted it.

Several amicus briefs were filed in this case, and the matter was argued to the KSC on August 31, 2004 and on October 21, 2005, the KSC issued a unanimous decision vacating Matthew's sentence:
We hold K.S.A. 2004 Supp. 21-3522 unconstitutional as violating the equal protection provisions of the United States and Kansas Constitutions and strike from the statute the words "and are members of the opposite sex." We further hold that Limon's conviction and sentence for criminal sodomy pursuant to K.S.A. 21-3505(a)(2) violate his right to equal protection of the laws. We further grant Limon's requested remedy of imposing a time limit upon further proceedings in this case and order that the State will have 30 days in which to: (1) charge Limon under the provisions of K.S.A. 2004 Supp. 21-3522 without the words "members of the opposite sex" or (2) take other action.

Here is a Queer Day article reporting on the KSC decision. So finally, Matthew had won. But here we are in 2007, still blogging about his case.

After remand from the KSC, Matthew entered a guilty plea to unlawful voluntary sexual relations. He had already served more than five years on a maximum 15-month prison sentence. You would think this would end matters. Here is a article reporting before resentencing.

But the state sought and obtained an upward departure on the post-release supervision period from the standard 12-months to 36-months based on the judge's finding that the offense was sexually motivated. Matthew argued that this judicial fact-finding violated Apprendi v. New Jersey. As of today, Matthew has already completed more than 12 months on post-release supervision.

On appeal again, the COA agreed that the enhanced post-release supervision period required additional factual findings, and that the district court supplying those findings violates Apprendi. This really is not a stretch, especially after the recent decision in State v. Allen, (blogged about here), where the KSC held the same thing.

So, maybe Matthew will finally get totally out from under DOC custody in the near future. Only about six years too late.

[Update: the state agreed to not file a PR so issuance of the mandate was expedited and it issued on April 17, 2007]

Client decides whether to waive jury trial

Christopher L. Hughes of Falk & Associates won in City of Wichita v. Bannon, No. 94,752 (Kan. App. April 6, 2007), reversing a municipal criminal trespass conviction due to ineffective assistance of counsel. Mr. Bannon's trial counsel had waived his right to jury trial without permission from Mr. Bannon. On direct appeal, Mr. Bannon framed his claim about waiver (or lack thereof) as ineffective assistance of counsel and the COA remanded for evidentiary hearing. After denial by the district court, the COA had little trouble finding that such a waiver constituted defecient performance. The COA went on to find that this is a type of error that is not subject to prejudice analysis--it is structural error. As a result, the conviction is reversed.

As an aside, in a felony case, waiver needs to be in writing or on the record, so theoretically this type of issue can be raised directly as a direct appeal, although if the record is not clear the appellate court has refused to reach it and remand would still be approriate.

[The city did not file a PR and the mandate issued on May 10, 2007]

Ineffective appellate counsel

Martin Peck won in King v. State, No. 94,117 (Kan. App. March 30, 2007), winning 1507 relief based on ineffective assistance of counsel. Mr. King received an upward durational departure in a Sumner County case in 1995. During his direct appeal, his special appellate defender requested five extensions of time to file a brief. The COA denied counsel's sixth request for extension of time and dismissed the appeal. Mr. King filed a 1507 motion claiming ineffective assistance of appellate counsel. It seems like sort of a no brainer. The state conceded defecient performance, but argued no prejudice could be shown. The COA did not bite on that argument, correctly noting that where a defendant is wrongfully deprived of an entire appeal, prejudice is presumed.

I should note--out of a sort of vanity--the appellate attorney subject of this case was not an employee of the ADO. It was an attorney that was contracted to do the case. At that time in history, those persons were called "special appellate defenders" and the ADO did not withdraw. Today, we actually withdraw from such cases and the attorney is simply listed by name. (In fact, this case is a good example of why we changed the former policy!)

I would also note that this case presents a sort of paradox for the relationship between the appellate court and appellate defense attorneys. We occassionally have issues where we procedurally mess up in some way with a single case or some times when we have gotten into the trouble in a more systemic way (i.e. requesting too many extensions in general). But it seems pretty counterproductive for the COA to dismiss a case because, as King illustrates, the client will get an appeal (or should anyway). We certainly have an ethical duty to dilligently represent every client, which is separate from the procedure. Sometimes it would seem more productive for the COA to call us up if we seem to be systemically failing than to start dismissing cases where the court would know the dismissal itself will necessarily result in a constitutional violation, only exacerbating matters. Dismissing appeals is an odd way to "protect" litigants.

[Update: the state did not file a PR and the mandate issued on May 3, 2007]

Thursday, April 05, 2007

Salina acquittal

A Salina Journal article reports that Paul Hickman won acquittal in State v. McQuillan of 52 counts of sexual expoitation of a child involving viewing, but not saving child pornography on a computer. Mr. McQuillan had been previously convicted in district court, but Paul won a this new trial based on a motion for arrest of judgment due to a defective complaint. Second time around, acquittal.

[Note: the link to the Salina Journal article has expired.]