Thursday, September 27, 2007
Sex battery acquittal in Salina
Thanks for the info on the attorney!
Wednesday, September 26, 2007
What was he thinking?
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
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
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]
- Prosecutorial misconduct
- Improper adult certification (requiring choice between rights)
- Improper adult certification (improper notice to parents)
- Improper adult certification (sufficiency)
- Improper Allen instruction
Direct appeal; First-degree Murder
Sarah Ellen Johnson
[Aff'd in part, rev'd in part; Nuss; Feb. 1, 2008]
- Violation of in limine order
- Improper admission of lay opinion on veracity of defendant
- Prosecutorial misconduct (Doyle violation)
- Insufficient evidence for felony theft
Direct appeal; First-degree Murder
Carl Folsom
[Affirmed; Johnson; Feb. 2, 2008]
- Improper venue (several related issues)
- Improper admission of testimony that invaded province of jury
- Prosecutorial misconduct (personal opinion)
- Admission of prior bad act evidence without limiting instruction
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]
- Improper jury poll
- Failure to give mere presence aiding and abetting instruction
- Insufficient evidence to support aiding and abetting instruction
- Inconsistent state theories
Direct appeal; First-degree Murder
Korey A. Kaul
[Aff'd in part, rev'd in part; Beier; Oct. 17, 2008]
- Improper admission of prior bad acts evidence
- Failure to instruct of voluntary manslaughter
- Improper admission of statements
- Sufficiency of evidence to support agg burglary
- Sufficiency and constitutionality of hard-40
State v. Abraham Alderete, No. 94,388 (Sumner)
Direct appeal (petition for review); Child Abuse
Randall L. Hodgkinson
[Affirmed; Greene; Dec. 7, 2007]
- Failure to give lesser included offense instruction
K.S.A. 60-1507 appeal (petition for review)
Ronald Schneider
[Affirmed; Beier; Aug. 22, 2008]
- Ineffective assistance of counsel (failure to consult with expert)
- Prosecutorial misconduct (failure to disclose exclulpatory evidence)
Direct appeal (petition for review); Juvenile adjudication
Paul Shipp
[Reversed; Rosen; June 20, 2008]
- Right to jury trial in juvenile adjudication proceeding
State appeal (petition for review)
Larry Schwartz
[Affirmed; Luckert; May 30, 2008]
[Cert petition denied Dec. 1, 2008]
- Whether passenger was seized when driver detained for traffic offense
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]
- Improper definition of sale
- Improper amendment of complaint
- Improper admission of prior bad acts
- Officers exceeded scope of search warrant
K.S.A. 60-1507 appeal (petition for review)
Michael Whalen
[Reversed and remanded; McAnany; Feb. 8, 2008]
- Improper denial of motion without reaching merits
- Motion raising newly discovered evidence is not successive
Direct appeal (petition for review); Manufacture
Randall L. Hodgkinson
[Affirmed; Rosen; March 28, 2008]
- Improper severity level for manufacture sentence
Direct appeal (petition for review)
Shirla McQueen
[Reversed and remanded; Beier; Jan. 16, 2009]
- Sufficiency of evidence of penetration
- Improper admission of prior bad act evidence
- Improper admission of photograph
Monday, September 17, 2007
Hail to the Chief
Thursday, September 13, 2007
You can get probation for conspiracy
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
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
Wednesday, September 12, 2007
Tenn. appellate court says drug tax is unconstitutional
Tuesday, September 11, 2007
COA vacancy
Warrant is not a cure-all
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
Thursday, September 06, 2007
Jurisdictional win in Tenth Circuit
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.