Friday, October 31, 2008

December 2008 KSC Docket

Here are the criminal cases on the KSC docket for December 2-4, 2008. 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.

December 2--Tuesday--a.m.

State v. Kendrall Ransom, No. 99,281 (Sedgwick)
Direct appeal; First degree murder
Carl Maughan
[Affirmed; Beier; May 15, 2009]

  1. Denial of suppression of statements
  2. Improper admission of co-defendant hearsay
  3. Failure to instruct on proximate cause
  4. Failure to grant mistrial after in limine violation
  5. Improper amendment of complaint after state rested
  6. Sufficiency of evidence
State v. Kendrick Gracey, No. 99, 310 (Sedgwick)
Direct appeal; Aggravated indecent liberties with a child
Carl Folsom III
[Reversed and remanded; Rosen; Feb. 6, 2009]

  1. Failure to consider downward dispositional departure

December 2--Tuesday--p.m.

State v. James Thomas, No. 99,711 (Sedgwick)
Direct appeal; Aggravated indecent liberties with a child
Rachel Pickering
[Affirmed; Luckert; Jan. 30, 2009]

  1. Disproportionate sentence
  2. Failure to grant downward durational departure
State v. Alan Salts, No. 99,533 (Sedgwick)
Direct appeal; Indecent liberties with a child
Rick Kittel
[Affirmed; Beier; Feb. 6, 2009]

  1. Improper deadlocked jury instruction

December 3--Wednesday--a.m.

State v. Nicholas Bennett, No. 98,038 (Dickinson)
Direct appeal (petition for review); Possession
Patrick H. Dunn
[Reversed and remanded; Davis; Jan. 30, 2009]

  1. Improper probation condition in re searches
State v. Earl Brinklow, No. 96,231 (Barber)
Direct appeal (petition for review); Aggravated indecent liberties with a child
Patrick H. Dunn
[Reversed and remanded; Johnson; Jan. 30, 2009]

  1. Failure to sequester witnesses
  2. Prosecutorial misconduct
  3. Sufficiency of evidence
State v. Wendell Leshay, No. 99,725 (Geary)
State's appeal
Janine Cox
[Reversed; Johnson; Aug. 28, 2009]

  1. Constitutionality of statute admitting KBI reports at preliminary hearing
State v. Jeremy Wells, No. 99,813 (Riley)
Direct appeal; Criminal sodomy
Elizabeth Herbert
[Reversed and remanded; Nuss; Dec. 11, 2009]
  1. Improper limitations of defense expert witness testimony
  2. Improper admission of prior bad act evidence

December 3--Wednesday--p.m.

State v. Christopher Gant, No. 98,026 (Sedgwick)
Direct appeal; First degree murder
Matthew Edge
[Affirmed; Rosen; Jan. 30, 2009]

  1. Denial of suppression of statements
  2. Error to allow detective to sit at counsel table
State v. Tommy May, No. 98,708 (Sedgwick)
Motion to correct illegal sentence
Carl Maughan
[Affirmed; per curiam; Feb. 23, 2009]

  1. Failure to appoint counsel for motion

December 4--Thursday--a.m.

State v. Aaron Valladarez, No. 99,724 (Ford)
Direct appeal (transfer); Possession
Christopher O'Hara
[Remanded; Luckert; May 8, 2009]

  1. Jurisidiction of magistrate judge to take felony plea
  2. Sufficiency of allocution
State v. Eric Hoffman, No. 98,394 (Greenwood)
Direct appeal; First degree murder
Korey Kaul
[Affirmed; Rosen; Jan. 30, 2009]

  1. Failure to instruct on misdemeanor manslaughter
  2. Sufficiency of evidence of proximate cause
  3. Improper admission of prior bad act evidence
  4. Improper admission of gruesome photographs

Friday, October 24, 2008

Sixteen apply to be Douglas County judge

Sixteen Douglas County attorneys have applied to fill the district court vacancy created by Judge Jack Murphy's upcoming retirement. Here is an article from the Lawrence Journal-World on the subject. And here is the news release from the judicial branch web site. If you have any input regarding the candidates, be sure to contact the Nominating Commission as soon as possible.

Tuesday, October 21, 2008

Judicial elections around the corner

Here is a Wichita Eagle article reporting on a couple of contests for open judicial seats in Sedgwick County. Elections are just two weeks away!

Lesser verdict in Salina

Here is a Salina Journal article reporting that Julie McKenna won acquittal on felony charges in a Saline County drug prosecution.

Friday, October 17, 2008

Only eight apply for KSC

Here is a press release naming the eight persons that submitted their names for the upcoming vacancy on the Kansas Supreme Court, including Court of Appeals Judges Thomas Malone and Steve Leben and District Judge Robert Fairchild. The list also includes former democratic AG candidate and current Securities Commissioner Chris Biggs and former state representative Ward Loyd. If you have input, get it to the nominating commission as soon as possible.

Acquittal in Lawrence

Here is a Lawrence Journal-World article reporting that Michael Clarke won an acquittal on the primary charges in a Douglas County attempted aggravated criminal sodomy prosecution. The article is deliberately sketchy about the details, so I don't know much more. If anyone wants to supplement this, let me know.

Wednesday, October 15, 2008

Maybe speedy trial clock doesn’t always start at arraignment

As everyone knows, K.S.A. 22-3402 sets forth a defendant’s statutory right to a speedy trial in Kansas. The statute explicitly states that the speedy trial clock starts on the day of arraignment. However, I have recently argued that the speedy trial clock should start on the day the defendant was supposed to have his or her arraignment. Often times, a defendant waives prelim, and then is not arraigned for several weeks. However, the legislature has mandated that arraignment occur on the date prelim is waived.

K.S.A. 22-3206(3) states that when a defendant waives preliminary examination, "arraignment shall be conducted at the time originally scheduled for the preliminary examination if a judge of the district court is available." Since the defendant is appearing before a judge for the waiver of the prelim, there usually is a judge available to arraign the defendant (and when they’re in front of a magistrate judge, K.S.A. 20-302b(a) gives the district magistrate judge jurisdiction to hear felony arraignments).

Thus, the legislature intended arraignment to occur when a preliminary hearing is waived, and intended the speedy trial clock to start from there. When a defendant’s arraignment is delayed contrary to the mandatory language of K.S.A. 22-3206(3), the time between the waiver and the arraignment should be charged to the State.

Friday, October 10, 2008

Accidents happen

Washburn student intern Krystle Dalke and I won in State v. Hernandez, No. 98,968 (Kan. App. Oct. 10, 2008), affirming Judge Young's dismissal of a Saline County aggravated child endangerment prosecution. The case stemmed from an accident where Ms. Hernandez' child wandered from his house and fell into a pond created by the heavy rains in May 2007. The COA reviewed cases from other states evaluating evidence of recklessness with regard to monitoring children:
The case law cited above persuasively supports the district court's finding insufficient evidence of reckless conduct was presented at the preliminary hearing to support the charge of aggravated endangerment of a child. The testimony established the defendant was alternating between cooking dinner and watching the children through a window. When the defendant looked away for "a moment," the children were gone and she went looking for them. The trailer park where the defendant lived was right behind the Dillons grocery store. While the defendant's supervision was certainly less than ideal, the time frame the children were left unsupervised in this case is far less than the 45 minutes the children were left alone in their front yard in [State v. Riggs, 2 S.W.3d 867 (Mo. App. 1999)] and the babysitter checking in once in 30 minutes on the children on the playground in [State v. McLeod, 846 N.E.2d 915 (Ohio App. 2006)], where the Missouri and Ohio courts found no reckless conduct.

As a result, the COA affirmed the dismissal.

[Update: the state did not file a PR and the mandate issued on November 13, 2008].

Thursday, October 09, 2008

Acquittal in high profile Shawnee County cold case

Here is a Topeka Capital-Journal article reporting that Kathleen Ambrosio won an acquittal in a State v. Netherland, a high profile Shawnee County first-degree murder prosecution. You can read about the eight-day trial here, here, here, and here. I think there was a lot of issues surrounding false confessions in this case.

Jurors seem satisified with appointed judges

Here is an Olathe News article reporting that jurors surveyed indicated a very favorable opinion of the appointed district judges in Johnson County. The article indicates that there is a measure on the ballot in Johnson County regarding a change from appointed to elected judges. A similar attempt was defeated in Shawnee County a couple of years ago.

Here is a later Kansas City Star article on some of the publicity surrounding the ballot question.

Couple of district court vacancies

Here are the press releases announcing judicial vacancies in the Seventh Judicial District (Douglas County) and the Tenth Judicial District (Johnson County). If you think you would be a good judge, get your application in now!