Wednesday, December 31, 2008

Must confirm jury verdict in open court

Washburn student intern David Becker and I won in State v. Johnson, No. 99,102 (Kan. App. Dec. 31, 2008) reversing and remanding a Cheyenne County DUI conviction for a new trial due to failure confirm the jury's verdict in open court. The circumstances are probably pretty rare, but all lined up to cause the COA to question whether there was a unanimous verdict in the case. And where the district court failed to comply with K.S.A. 22-3421 to confirm the jury's verdict in open court, the COA reversed:
The statutory mandate under K.S.A. 22-3421 and K.S.A. 60-248(g) requiring the trial court to ask the jury in open court whether the verdict is their verdict is a safeguard to prevent error or misunderstanding. Because K.S.A. 22-3421 gives a juror a chance to express a last minute dissent, it cannot be said that Johnson was not prejudiced by the trial court's failure to inquire into whether the jury had agreed with the published verdict. As a result, the trial court's failure to follow the statutory mandate of K.S.A. 22-3421 to inquire as to whether the verdict was the jury's verdict amounted to reversible error in this case.
The COA provides a nice historical discussion of verdict procedures in this case. Although some of these procedures may seem pretty antiquated or formalistic, they have a purpose. It gives the juror a last chance to express disagreement. After argument in this case, Cal Williams noted a case from his past where when the judge asked the jury "Is this your verdict?" one juror broke down and disagreed. Maybe some readers have other examples. Although rare, it can happen.

On a related note, we had also claimed that the district court should have polled the jury unless it had obtained an affirmative waiver from the parties (which it did not in this case--it just never asked). The COA ruled that failure of the party to affirmatively ask for polling constituted waiver, even where district court never gave the option to counsel.

So my question is, why would either party affirmatively (or implicitly) waive jury polling? It seems to happen in more than half of the cases that cross my desk. If the defendant is convicted, what do you have to lose? Even if it's a one-in-ten-thousand shot, I don't see how it can hurt and it really doesn't take that long. Any ideas?

[Update: the state did not file a PR and the mandate issued on February 3, 2009.]

Ninth Circuit holds 28-year failure to register sentence disproportionate

I don't regularly blog about other rulings from other jurisdictions, but did want to note this blog entry highlighted on Sentencing Law and Policy here. The Ninth Circuit held that a 28-year sentence for failure to register was grossly disporportionate.

I just note this because we are seeing more and more of these type of cases in Kansas and expect to see a lot more with the huge increase of comparatively minor offenses (i.e. possession of drugs with intent) that now require offender reporting. Because failure to report is now SL5, we are likely to see sentences for failure to report that far exceed the original sentence. If you are in that situation, remember to raise a proportionality objection, both under the federal and state constitutions.

Wednesday, December 24, 2008

Charges dismissed

Here is an Olathe News article reporting that prosecutors dropped charges without prejudice in State v. Hudson, a Johnson County assault and battery on a LEO prosecuction. The article notes that the state will be trying Ms. Hudson for the third time for a separate allegation of assault on a LEO.

Bush pardons another Kansan

Here is an Emporia Gazette article reporting that President Bush pardoned a Lyon County man for a 43-year old federal conviction for forging an endorcement on a treasury check.

The pardon, along with other granted that day were noted here at Pardon Power, a great blog for anyone who is interested in issues and news about state and federal pardons and commutations.

As far as I know Bush pardoned one other Kansan earlier this year, blogged about here.

Tuesday, December 23, 2008

New Wichita PD perseveres

Here is a nice article from the Wichita Eagle sharing the story of Latina Alston, a new PD in Sedgwick County. After reading her story, it seems very fitting that Latina has chosen to help the less fortunate by becoming a public defender.

Monday, December 22, 2008

Ineffective assistance in capital trial?

Here is a Topeka Capital-Journal article reporting some details of the remand hearing granted by the KSC in State v. Cheatham, a Shawnee County capital appeal. I'll leave the conclusions for you the reader to draw.

Friday, December 19, 2008

No corroborating evidence

Meryl Carver-Allmond notched her first ADO win in State v. Cibrian, No. 99,812 (Dec. 19, 2008)(unpublished), reversing a Saline County possession conviction on Fourth Amendment grounds. The issue involved whether the arrest was illegal:
in the present case, little evidence was presented concerning [informant's] and his girlfriends' veracity and reliability, as they clearly had motivation to place blame on others. [Informant] was an admitted participant in the crime of trying to sell the stolen goods. . . . Here, as in [State v. Hendricks, 31 Kan. App. 2d 138, 61 P.3d 722 (2003) and State v. Landis, 37 Kan. App. 2d 409, 156 P.3d 675 (2007)], the officers did not have enough information concerning the veracity or credibility of [informant] and his girlfriend--or corroborating evidence--to form a reasonable belief that Cibrian had committed the crimes of possession fo stolen property or burglary. Without probable cause to support the arrest, the search incident to the arrest was unlawful.

[Update: the state did not file a PR and the mandate issued on January 22, 2009.]

Wednesday, December 17, 2008

Dismissal in JoCo Sodomy prosecution

John DeMarco won a dismissal in State v. Wheeler, a Johnson County sodomy prosecution. The case involved an alleged sex act between a nurse's aide (Wheeler) and a patient at a rehabilitation center. The State agreed to dismiss the case after the State's doctor changed his opinion on the alleged victim's capacity to consent. Johnson County DA Kline said, “The only issue is, does she have the capacity, and the state’s doctor says she does under the law — there’s not much you can do with that." Here is coverage of the dismissal by the KC Star.

You can't be the offender and the victim in the same case

Paul Shipp over at Inre LM, noted that he recently won in In re E.R., No. 100,197 (Dec. 12, 2008), reversing a Finney County juvenile adjudication for a violation of Romeo and Juliet law. Here is Paul's succinct summary:
The Kansas Court of Appeals has ruled that Juvenile's cannot be dually charged with a violation of the State's Romeo & Juliette law.
In other words if you have two underage kids fooling around together, you can't charge them both with sex (or whatever improper intimate contact) with another person who is under age.

Here is a link to the entire blog entry, including links to the briefs in the case. And as Paul notes, if you have former clients with these types of convictions, or if you have clients who have such types of convictions in criminal history, think about a collateral attack. There is a pretty good argument that this type of ruling would apply retroactively.

[Update: the state did not file a PR and the mandate issued on January 15, 2009.]

Monday, December 15, 2008

Eleventh hour dismissal

Here is an Emporia Gazette article reporting that the state dismissed attempted intentional second-degree murder charges in State v. Swafford, a Lyon County prosecution. Another newspaper article noted that the prosecutor indicated that it was likely that Mr. Swafford would be charged with agg battery in the near future.

[Update: here is an Emporia Gazette article reporting that, as he promised, the Lyon County Attorney filed new severity level 4 agg battery charges in the case.]

Friday, December 12, 2008

When the defendant objects to criminal history, prior PSI no longer sufficient proof

Reid Nelson won in State v. Schow, No. 96,820 (Kan. Dec. 12, 2008), reversing Mr. Schow's sentence and remanding for to the district court for resentencing and reconsideration of his motion to withdraw plea. In reversing the sentence, the KSC held that it was improper for the sentencing court to place the burden on the defense to disprove alleged prior convictions that were listed in a prior, unobjected-to PSI:
[W]e find, as a matter of statutory interpretation, that a defendant may file a written objection to his or her criminal history worksheet, including those convictions which may have been contained in a previous criminal history worksheet, and that such an objection places the burden on the State to produce further evidence establishing the existence of the challenged conviction(s) by a preponderance of the evidence. Any suggestion to the contrary in Hobbs is disapproved. Here, the district court erred in shifting the burden to the defendant to disprove the existence of the disputed prior convictions. The sentence is vacated, and the matter remanded to the district court for a proper determination of criminal history and resentencing, if necessary.
Thus, when a defendant objects to the existence of criminal history, the State can no longer rely on a prior, unobjected-to PSI as sufficient existence of a prior conviction. The State has to provide the certified journal entry of conviction.

The KSC also reversed the district court's denial of Schow's motion to withdraw plea. The KSC reiterated that a claim of innocence is not required in a pre-sentencing motion to withdraw plea, and held that a district court may consider a mutual mistake in criminal history in determining whether there is good cause to withdraw a plea. The KSC concluded:
[A] defendant seeking to withdraw his or her plea prior to sentencing has the burden to show the existence of good cause for permitting the plea withdrawal. In determining the existence of good cause, the district court should consider whether: (1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made. Where a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant's criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.

Overall, this case helps assure that defendants are sentenced according to an accurate criminal history score and that plea agreements are actually knowing and voluntary.

New judges in Northeast Kansas

Sally Davis Pokorny of Lawrence has been appointed by the governor to be a district court judge in Douglas County. She will fill the vacancy created by the retirement of Judge Jack Murphy, who is leaving Jan. 12. Here is coverage of the selection by the LJ World. Here is the governor's press release announcing the appointment.

And the governor appointed Dan Wiley district judge in the First District covering Leavenworth and Atchison Counties, filling the vacancy created by the retirement of Judge Frederick Stewert. Here is the governor's press release announcing the appointment.

Here is coverage of both appointments in the Topeka Capital-Journal.

Thursday, December 11, 2008

Human rights, right here.

Yesterday was the 60th Anniversary of the passage of the Universal Declaration of Human Rights. Here is a link to a site reporting on the anniversary, and here is a link to the UN web site including the text of the Declaration. For those who don't know (like me before yesterday), the UDHR was created by the international community in response to the atrocities committed during World War II.

But you may be asking "Well, that's great, but this is the Kansas Defenders blog, right? I thought the Kansas Defenders blog covered more local issues, not issues about international human rights?" Well, take a look at an excerpts of several of the articles of the UDHR:

Article 3
Everyone has the right to life, liberty and security of person.

Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6
Everyone has the right to recognition everywhere as a person before the law.

Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9
No one shall be subjected to arbitrary arrest, detention or exile.

Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Does any of this sound familiar to you, Kansas Defenders? It's what you do every day, in state and federal courts, in trials and appeals, from Atchison to Liberal. Although the public may tend to think of "human rights issues" as an international problem issue in other countries, protection of the fundamantal rights as described in the UDHR takes place right here in River City.

Thanks for your daily efforts to secure the "foundation of freedom, justice and peace in the world." (UHDR, Preamble)

Wednesday, December 10, 2008

Fifth Amendment challenge to rebuttable presumption for adult prosecution

The Nevada Supreme Court held in In re William M, that is system of presumptive adult prosecution for certain age children accused of certain crimes, violates the Fifth Amendment. I think the case may be distinguishable from Kansas in some respects, because the Nevada scheme sets up a certain requirement for rebuttal that would include requiring the juvenile to admit guilt (thus violation the Self-Incrimination Clause). But while K.S.A. 38-1636(a) and (e) are a little more vague as to the grounds for rebuttal, they may include "the seriousness of the alleged offense" and "whether the alleged offense was committed in an aggressive or willful manner," etc. I could see litigation of these claims implicating the same types on incrimination as that described in the Nevada case.

Anyway, it was an approach to attacking certification I hadn't thought of before!

Tuesday, December 09, 2008

Sedgwick County PD stops taking new cases for now

Here is a Wichita Eagle article reporting that the Sedgwick County PD's office will stop taking cases for a few weeks because of caseload issues. The article indicates that cases will start being assigned to private attorneys, who will be reimbursed by the state. Unfortunately, this seems to be a trend we see highlighted around the country.

Lesser in juvenile case

Marc Schultz won in In re A.W., a Shawnee County juvenile robbery prosecution. The jury took less than an hour to come back with a lesser verdict for misdemeanor theft. I guess jury trials can work in juvnile cases!

Friday, December 05, 2008

Prior drug use is not automatically admissible in possession case

Shawn Minihan won in State v. Boggs, No. 96,921 (Kan. Dec. 5, 2008), getting a new trial in a McPherson County drug prosecution. Here is our previous blog entry on this case. The KSC agrees with the COA that evidence of prior drug use was not relevant to his possession case. The KSC applied its recent prior bad acts evidence case law and held that the evidence was not admissible in this case:

The State argues that Boggs' prior use of marijuana was relevant in this case to prove the intent element in both charges because intent is always a material fact in possession cases. In particular, the State asserts that this court has long permitted evidence of prior drug use to be admitted in cases involving possession of drugs or drug paraphernalia to prove the defendant's intent to use drugs, the defendant's knowledge that the particular substance possessed consisted of drugs or was drug-related, or to prove an absence of mistake or accident in possessing the contraband material.

The State correctly points out that this court has previously held that evidence of prior crimes or civil wrongs may be admissible under K.S.A. 60-455 to prove intent, knowledge, or absence of mistake or accident in cases involving possession of drugs or drug paraphernalia. The State fails to recognize, however, that in all cases where this court has held such evidence to be admissible on these bases, the question of the defendant's intent, knowledge, or claim of mistake or accident was a disputed material fact in issue.

. . . .

We agree and find the reasoning of the Court of Appeals sound. The issues of intent, knowledge, or absence of mistake or accident were not material to the resolution of Boggs' case, as the only issue in dispute was whether Boggs ever possessed the pipe and its contents at all.

. . . .

The instruction provided in this case states that in a nonexclusive possession case, factors including other crimes or civil wrongs of the defendant may be admitted to establish the defendant "knowingly possessed the controlled substance" charged in the information or complaint. In the past, factors such as a defendant's prior drug use or participation in the sale of drugs--evidence of other crimes or civil wrongs that fall squarely within the realm of K.S.A. 60-455--have been admitted both under the guise of that statute or independent from the statutory mandates. The ambivalence existing in this area of law is exemplified by the trial court's admission of the defendant's prior drug use without employing the safeguards of K.S.A. 60-455, yet giving a limiting instruction. Gunby abolished this ambiguity, making it clear that before any evidence of a defendant's other crimes or civil wrongs can be admitted, the court must apply the K.S.A. 60-455 safeguards.

Finally, we observe that although PIK Crim. 3d 67.13-D, which was applied in a modified form in this case, states that a jury may consider a defendant's use of a controlled substance as one of the factors in a nonexclusive possession case, the pattern instruction fails to adequately summarize the nuances of this court's case law relating to K.S.A. 60-455 evidence. Our decision in Gunby specifically bars the admission of any evidence of other crimes or civil wrongs independent of K.S.A. 60-455 or some other statutory basis. While a defendant's use of a controlled substance may be admitted--subject to the requirements of K.S.A. 60-455--when such evidence is relevant to prove a disputed material fact, the defendant's use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455. To the extent that PIK Crim. 3d 67.13-D suggests otherwise, the instruction is disapproved. To the extent that past appellate cases in this state suggest otherwise, they are also disapproved.

This is a pretty big case--the PIK instruction is given in almost all nonexclusive possession cases. So be ready to cite this case at the district court (and let your appellate attorney know if this issue is floating around in a case on appeal!)

[Update: this case was voted 2008 ADO case of the year!]

You don't have to acquit to consider a lesser

Lydia Krebs won today in State v. Espinales, No. 98,193 (Kan. App. Dec. 5, 2008)(unpublished), getting a new trial in a Douglas County murder prosecution. Mr. Espinales was originally charged with first-degree murder and district court gave lesser-included offense instructions for second-degree murder and voluntary manslaughter. Jury convicted of second-degree murder. The problem stemmed from an instruction that read "If you find the defendant is not guilty of the crime of murder int he first degree or second degree, you should consider if he is guilty of the crime of voluntary manslaughter." The COA applied KSC precedent to note that the instruction, as given, would prevent a jury from really considering voluntary manslaughter:
"[The jury] may never have fully analyzed whether the shooting was the product of . . . a sudden quarrel." That is problematic because a sudden quarrel is one factor that distinguishes manslaughter from murder, and the jury should deliberate both murder and manslaughter simultaneously when the evidence could support either.
The COA went on to hold that the error in this case case clear error and remanded for a new trial.

[Update: the state did not file a PR and the mandate issued on January 8, 2009.]

State has to prove obstruction as charged

Matthew J. Edge won in State v. Ochoa, No. 98,922 (Kan. App. Dec. 5, 2008)(unpublished), reversing a Wyandotte County obstruction conviction. The state charged Mr. Ochoa with obstructing Officer Bussell with relation to arrest on a automobile burglary. But the alleged obstruction was Mr. Ochoa giving a fake name to Officer Landis on the scene. The COA held that the complaint only charged obstruction of Bussell and he was not even present at the time of the alleged obstruction:
the false identification given to Officer Landis cannot be considered to be an act obstructing or opposing Officer Bussell's duties. . . . It is not enough for the State to prove that Officer Bussell was affected by Ochoa's false statement; the State must show Ochoa's false statement hindered Officer Bussell in carrying out some official duty, and there is no evidence to support that assertion.
As a result, the conviction is reversed.

[Update: the state did not file a PR and the mandate issued on January 8, 2009.]

Thursday, December 04, 2008

Acquittal in less than an hour

Here is a Hutchinson News article reporting that Janis Knox won an acquittal in State v. Schutte, ending a Reno County child abuse prosecution.

January 2009 KSC docket

Here are the criminal cases on the KSC docket for January 26-28, 2009. 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 26-Monday-a.m.

State v. Sarah Fischer, No. 100,334 (Sedgwick)
Sentencing appeal (transfer)
Patrick H. Dunn
[Affirmed; Johnson; March 27, 2009]

  1. Use of juvenile adjudications in criminal history
State v. Leonard Foster, No. 98,014 (Sedgwick)
Motion to correct illegal sentence
Carl F.A. Maughan
[Affirmed; per curiam; Feb. 13, 2009]

  1. Right to be present at hearing
  2. Multiplicity
State v. Alfred Jones, No. 99,978 (Sedgwick)
Motion to correct illegal sentence
Carl F.A. Maughan
[Dismissed as interlocutory; Jan. 20, 2009]

  1. Improper summary denial of motion

January 26-Monday-p.m.

State v. Albert Richmond, 100,074 (Crawford)
Direct appeal; First degree murder
Christina M. Waugh
[Affirmed; Nuss; July 24, 2009]

  1. Improper state of mind evidence
  2. Improper admission of prior crimes if defendant took stand
  3. Improper prior bad act evidence
  4. Prosecutorial misconduct

January 27-Tuesday-a.m.

State v. Gabriel Martinez, No. 99,641 (Wyandotte)
Direct appeal; First degree murder
Reid T. Nelson
[Affirmed; Rosen; March 27, 2009]

  1. Jury misconduct/incompetence
  2. Ex parte communication between judge and juror
  3. Sentencing error
State v. Benjamin Appleby, No. 98,017 (Johnson)
Direct appeal; Capital murder
Debra Wilson
[Aff'd/Rvd; Luckert; November 20, 2009]
  1. Multiplicity of capital murder and attempted rape
  2. Denial of suppression of statements
  3. Improper admission of computer-generated report without confrontation
  4. Improper expanded instruction on premeditation
  5. Improper use of mitigating evidence as a non-statutory aggravator

Look for the expiration date

We had a couple of probation violation appeals in the last couple of weeks that I thought might be worth mentioning.

Patrick H. Dunn won in State v. Snapp-Woods, No. 98,765 (Kan. App. Nov. 21, 2008)(unpublished); the COA reversed and remanded for discharge because a "Consent and Order to Extend Probation" was filed two days after expiration of the probation term. Christina M. Waugh won in State v. Baca, No. 99,124 (Kan. App. Nov. 28, 2008)(unpublished); the COA similarly reversed because an agreed-upon extension had not been completed until after a reinstated term of probation had expired. Even though Mr. Baca had agreed to the extension, the COA held the district court lacked subject matter jurisdiction.

The lesson? Pay attention--whether at the district court or on appeal. Look through the file carefully at prior extensions. It's not enough to have filed an extension within the 30 days after a probation period ended.

[Updates: the state did not file a PR in either case. The mandate issued in Baca on December 31, 2008; the mandate issued in Snapp-Woods on January 5, 2009.]