January KSC docket

Here are the criminal cases on the KSC docket for January 28-31. 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.



January 28-Monday-a.m.

State v. Terral Breedlove, No. 96,608 (Sedgwick)
Motion to Correct Illegal Sentence; Felony murder
Lydia Krebs

1. Jurisdiction to prosecute juvenile in adult court

State v. Donald Storey, No. 95,592 (Sedgwick)

Direct appeal (petition for review); Burglary
Matthew J. Edge

1. Is entry into an unfinished structure burglary

State v. Kim Crum, No. 95,729 (Sedgwick)

Direct appeal; First-degree Murder
Jessica R. Kunen

1. Prosecutorial misconduct (disparaging counsel, improper questions/argument)
2. Error in showing jury photograph during deliberations
3. Failure to allow substitute counsel after conflict developed
4. Admission of improperly prejudicial evidence
5. Violations of in limine orders

State v. Lianna Heapofbirds, No. 97,229 (Sedgwick)

Motion to Correct Illegal Sentence (transfer); Aggravated Battery
Carl A. Folsom, III

1. Whether district court modification after probation revocation was illegal

January 28-Monday-p.m.

Joshua Robertson v. State, No. 95,188 (Sedgwick)
K.S.A. 60-1507 appeal
Michael P. Whalen

1. Ineffective assistance of habeas counsel

State v. Leonard Pollman, No. 93,947 (McPherson)
Direct appeal (petition for review); DUI
Sam S. Kepfield

1. No reasonable suspicion to stop or probable cause to arrest
2. K.S.A. 8-1567(a)(2) is vague

January 29-Tuesday-a.m.

State v. Christopher Brown, No. 96,862 (Shawnee)
State's appeal (petition for review)
Cindy K. Sewell

1. Suppression of confession

January 29-Tuesday-p.m.

State v. Glenn Heath, No. 97,119 (Shawnee)
Motion to Correct Illegal Sentence; Felony murder
Michael S. Holland

1. Failure to resentence after appellate reversal of consecutive sentence

State v. Randy Johnson, No. 96,681 (Douglas)
Direct appeal (transfer); Attempted Second-degree Murder
Kari R. Nelson

1. Improper admission of prior consistent statements
2. Suppression of confession

January 30-Wednesday-a.m.

State v. Timothy Bryant, No. 95,945 (Wyandotte)
Direct appeal; Felony murder
B. Joyce Yeager

1. Prosecutorial misconduct
2. Improper admission of prior bad act evidence
3. Gruesome photographs
4. Improper elements instruction and jury question response
5. Failure to appoint substitute counsel

State v. Arthur Herron, No. 96,081 (Wyandotte)
Direct appeal; Felony murder
Korey A. Kaul

1. Insufficient evidence
2. Failure to instruct on self-defense
3. Failure to instruct on lessers

State v. Jackie Poulton, No. 95,353 (Reno)
Direct appeal (petition for review); Manufacture et al.
Shawn E. Minihan

1. Suppression of evidence from search based on implied consent

January 30-Wednesday-p.m.

State v. William Scaife, No. 97,183 (Wyandotte)
Direct appeal; First-degree murder et al.
Janine A. Cox

1. Failure to give lesser
2. Sufficiency
3. Prosecutorial misconduct (vouching)

State v. Bobby Hemphill, No. 95,209 (Reno)
Motion to Appeal Out of Time (petition for review); Possession w/intent w/1000ft
Patrick H. Dunn

1. Failure to allow out of time appeal

State v. Ramon Fewell, No. 95,041 (Shawnee)
Direct appeal (petition for review)
Carl A. Folsom, III

1. Suppression of evidence from search of person based on smell of marijuana
2. Improper questions illiciting witness' opinion about defendant's veracity

Search exceeded scope

Carl Folsom won today in State v. Warren, No. 94,694 (Kan. App. Nov. 30, 2007), reversing Johnson County burglary and theft convictions with an order to suppress evidence obtained from search of a car. After deciding to impound a car, the driver asked to retrieve some personal items, which the officer would allow, but only after a search of the car for weapons. During that search, the officer found and went through a day planner:

It is true the day planner could have contained a weapon, but it did not. And, the officer's search did not stop with checking for weapons in the book. Instead, without any probable cause, the officer continued to search through the planner thoroughly. He found a social security card, a checkbook, and a AAA card, all of which had one Jason Toomsen's name on them. (Toomsen had suffered a house burglary the day before.) When asked, Warren offered no explanation about the items or why they were in his car. This caused the officer to extend his search to the passenger area and then the trunk.

This search exceeded the legal limits of a Terry search, and the evidence gained from it must be suppressed. Neither party argues the inevitable discovery doctrine applies here, and we agree because of the lack of a written policy covering inventory searches of impounded cars and trucks by the Roeland Park Police Department.

Nice to see that the COA understand that there are "scope" restrictions (at least in this case)! Here is FourthAmendment.com's coverage of the case.

[Update: the state filed a PR on December 31, 2007.]

[Further update: the KSC denied the state's PR and the mandate issued on May 30, 2008.]

Prosecutorial musical chairs

Here is a Parsons Sun article reporting on the selection of John Bullard, the current Labette County Attorney, to fill the vacancy created by the resignation of the Cherokee County Attorney. So I guess now there will soon be a vacancy in Labette County.

Article on next week's Fourth Amendment cases

Here is a Lawrence Journal-World article reporting on two drug cases being argued before the KSC next week. I blogged about these cases here and here. It's interesting to see the public comment/perspective on these cases. And here is my previous blog setting out next week's KSC criminal cases.

Judicial evaluations

Here is a Topeka Capital-Journal article reporting on the newly created Commission on Judicial Performance. It will be interesting to see how this process works and whether it makes any difference with voters. Here is a Lawrence Journal-World article on the same subject.

No state appeal

Paul Oller won in State v. Vasquez, No. 96,690 (Kan. App. Nov. 21, 2007), obtaining dismissal of the state's appeal from the district court's denial of the state's motion to hold a defendant in indirect contempt of court after failing to pay restitution. The COA held that this appeal did not fall within the statutorily delineated types of state appeals:

the instant matter, the State does not come within any of the narrowly defined categories of K.S.A. 2006 Supp. 22-3602(b). Once an individual completes his or her period of incarceration or probation, the trial court no longer has jurisdiction in the criminal case over any unpaid restitution. Collection of unpaid restitution must then be pursued in a civil action. Accordingly, this court does not have jurisdiction to consider the substantive issues raised by the State.

It's worth mentioning to anyone that is defending in a prosecution appeal to always think about a jurisdictional argument. Remember, the COA and KSC generally are quite strict on both the substantive and procedural requirements in prosecution appeals, so look for possible jurisdictional issues with a fine-toothed comb.

[Update: the AG entered and filed a PR on December 14, 2007.]

[Further update: the KSC denied the state's PR and the mandate issued on April 25, 2008.]

Prior use/possession not relevant in possession case

Shawn Minihan won in State v. Boggs, No. 96,921 (Kan. App. Nov. 21, 2007), getting a new trial in a McPherson County drug prosecution. This is great common-sense application of K.S.A. 60-455 to a situation we see too frequently--admission of prior possession convictions in subsequent possession prosecutions:

Furthermore, the prior crime evidence of smoking marijuana was not so relevant as to show some material or logical connection between it and the charged crimes. A fact finder could not have reasonably inferred that the later acts of possession of marijuana and possession of drug paraphernalia follow from or was logically connected to the former act of smoking marijuana. For example, a person could smoke marijuana and not later be in possession of marijuana or possession of drug paraphernalia. Thus, it would be a logical non sequitur to conclude that because a person previously smoked marijuana, the person would later possess either marijuana or drug paraphernalia.

And even if it meets the relevancy test included in K.S.A. 60-455, the COA held that where the defendant did not claim innocent or mistaken possession, prior acts are not relevant to show intent or absence of mistake:

When a defendant completely denies "that any of the charged conduct took place," the defendant's intent is not in issue and the evidence may not be admitted to prove it. Moreover, absence of mistake or accident and intent are closely related concepts. Unless a defendant has contended that the charged crimes were innocent in character, evidence of prior acts or convictions may not be admitted to show absence of mistake or accident. State v. Graham, 244 Kan. 194, 197, 768 P.2d 259 (1989). As a result, the trial court erred in admitting the prior crime evidence under K.S.A. 60-455 to show intent, knowledge, and absence of mistake or accident.

This could have a pretty big impact in a lot of nonexclusive possession prosecutions.

[Update: the state filed a PR on December 20, 2007].

[Further update: the KSC granted the state's petition on April 23, 2008. The case will be argued in the fall, probably September or October.]

COA short list

Here is the press release announcing the three candidates for the COA opening stemming from expansion of the court. The three nominees are: Ward Loyd from Garden City (former chair of the House Corrections and Juvenile Justice Committee), Timothy Moore, from Morris, Laing in Wichita; and Melissa Taylor Standridge, who works as chambers clerk for U.S. Magistrate Judge David J. Waxse in Kansas City, KS. Here is a Topeka Capital-Journal article relating the same news.

But why can't you instruct on the lesser?

I saw this article in the latest issue of NACDL's Champion magazine entitled "Defense Theory Instruction on Non-Included Lesser Offenses." It sort of struck a nerve because several of us have wondered about pursuing something along this line for non-included offenses in Kansas.

The typical examples are aggravated indecent liberties as a lesser non-included offense of rape (where only issue in dispute is penetration) and aggravated battery as a lesser non-included of attempted murder (where only issue is intent to kill). Although neither of these are included offenses (and therefore not charged), and Kansas law hasn't supported giving such instructions, there is support for changing or distinguishing that law.

In particular, an instruction that directs acquittal if jury finds defendant guilty of a non-included lesser offense would be consistent with current Kansas law. I don't see the down side of such a request. Of course, many of you trial practitioners might like all or nothing, but it seems on our end that a middle-ground for the jury would be helpful and cut sentences by years. Any thoughts?

Prosecutorial misconduct results in reversal of murder conviction

Korey Kaul won in State v. Cosby, No. 94,609 (Kan. Nov. 9, 2007), getting a new trial in a Douglas County first-degree premeditated murder prosecution. The main issue causing reversal was a Doyle violation and prosecutorial misconduct regarding the state's argument regarding premeditation:

However, we sent a clear warning in Pabst that prosecutors must avoid forms of the word "instant" or any synonym conveying that premeditation can develop instantaneously. We have consistently found reversible misconduct when a prosecutor states or implies that premeditation can be instantaneous. See, e.g., State v. Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004) (prosecutor's gesture of firing gun, accompanied by statement, "That can be premeditation under the laws of the State of Kansas. One squeeze of a trigger is all it takes," implied instantaneous premeditation; misconduct reversible); State v. Holmes, 272 Kan. 491, 497, 499-500, 33 P.3d 856 (2001) (prosecutor said "premeditation can occur in an instant. That's the law in the State of Kansas"; deliberate misstatement constituted reversible error). Given Pabst's warning, the prosecutor in this case should have known better. His misstatement of the law was outside the considerable latitude given him in discussing the evidence.

Here is the Lawrence Journal-World article reporting on the case. Here is a TV article reporting that retrial is set in this case.

Mistrial in Olathe

Here is an Olathe News article reporting that Judge Anderson granted Tom Bath's motion for mistrial mid-way in an attempted first-degree murder trial for failure to properly edit out improper comments on a tape.

Lesser verdict in Salina meth case

Here is a Salina Journal article reporting that Jason Tupman won a lesser verdict in State v. Thomas of sale in a Salina prosecution for sale w/1000 of a school. The verdict was exactly what Jason asked for, and is a big win.

"Plain smell" does not justify search of person in car

Francis E. Mesienheimer, of Martindell, Swearer & Shaffer, won in State v. Altum, No. 96,971 (Kan. App. Oct. 26, 2007)(unpublished), successfully defending Judge Becker's suppression order in a Reno County drug prosecution. One big issue was whether the smell of marijuana coming from a car justified a search of one of the occupants of the car:

Deputy Graber performed an initial justified Terry frisk of Altum. That search was unproductive. At the time of this initial search, the following factors were known to Graber: (1) The smell of marijuana emanating from the car in which Altum was a passenger; and (2) the smell of marijuana emanating from Altum's person. The only additional information that could have given rise to a probable cause search of Altum after the unproductive Terry frisk was that Stephenson, the other back-seat passenger, had been in possession of marijuana.

The fact that Graber noticed the smell of marijuana coming from a car with two back-seat passengers, and one passenger had been found in possession of marijuana, does not automatically establish that both were involved in criminal activity.

In summary, we do not believe that Kansas has yet adopted a “plain smell” exception for warrantless searches of persons based on a trained law enforcement officer's detection of the odor of marijuana.

Good discussion of Kansas case law on this subject if you have the same or a related issue.

[Update: the state did not file a PR and the mandate issued on November 29, 2007.]

Slow news

Sorry for the infrequent updates. Partly due to me being gone several days and having a lot of oral arguments. But mostly due to the fact that not much has been happening in the state appellate courts that's worth talking about. We have a lot of cases pending decision, so hopefully we will have more to talk about this fall. In any case, keep me up to date on any items of interest from district court (i.e. verdicts, suppression orders, etc.).