Wednesday, April 30, 2008

I'm ineffective!

Alice White from the KU Defender Project won a 1507 motion in Mattox v. State, 07 C 816 (April 23, 2008) on grounds of ineffective assistance of appellate counsel. I represented Mr. Mattox on his direct appeal from a Shawnee County second-degree murder conviction. The appeal included, among other issues, a couple of statement suppression issues. After winning at the COA, the KSC took review and reversed the COA in State v. Mattox, No. 89,547 (Kan. Dec. 9, 2005). Mr. Mattox, with the help of the Defender Project filed a 1507 motion claiming that I was ineffective because the KSC said that I abandoned one of the suppression issues that I had raised in the COA by insufficiently raising it in the pleadings to the KSC. Judge Parrish agreed and granted the motion.

Since I was a witness and former counsel, I will not comment one way or the other and simply leave it to the reader to review the decisions.

[Update: the state filed a motion to alter or amend on May 7, 2008. On July 22, 2008, the district court granted the state's motion to specify relief (that Mr. Mattox is entitled to reopen his appeal on the ground deemed abandoned by the KSC) but otherwise denied the state's motion. Here is the decision.]

[Further update: the state filed a notice of appeal on August 18, 2008.]

[Further update: the KSC transferred this case to itself on January 13, 2009.]

If at first you don't succeed . . .

Here is a AP article in the Topeka Capital-Journal reporting that a second jury hung on murder charges in a Stanton County murder prosecution. The article reports that the jury was split this time 7-5 (not saying which way). Kurt Kerns and Dan Monnat represent the co-defendants. Here and here is more local coverage in the Garden City Telegram.

Thursday, April 24, 2008

Acquittal in Sedgwick County

Chrystal Krier and Monique Centeno won in State v. Collins, getting acquittals on two counts of agg assault on a LEO. Apparently, the facts of the case involved Mr. Collins attacking a great dane with a knife (who had viciously attacked him first). Mr. Collins was still yelling and blood covered when police arrived and tazed him repeatedly. The defense brought in a (live) great dane to show the jury how big they are (apparently to the chagrin of the prosecutor and judge). Anyway, the jury didn't take long to acquit.

Wednesday, April 23, 2008

Long list for Johnson County judge

Here is an Olathe News article reporting on the applicants for the district judge vacancy to be created by Judge Russell's impending retirement. I don't really know any of these applicants, but if you do, and if you have an opinion about them, you should write to the nominating commission asap!

No exigent circumstances

Kathleen Neff and William K. Rork, Wendie C. Bryan, and Kenneth B. Miller, won for co-defendants in State v. Mell, No. 98,725 (Kan. App. April 18, 2008), partially affirming Judge Sachse's suppression order in a Franklin County cultivation prosecution. The COA agreed with the state that certain evidence (observation of growing marijuana plants) was not within the curtilage of the residence in question and therefore was not subject to suppression. But the COA disagreed with the state that warrantless entry of the residence was justified under the exigent circumstances doctrine:
Turning to the nonexclusive list of factors, we note that the first factor--the gravity or violent nature of the offense--is unsupported. There was no evidence in the record that the police would have been endangered if they had not entered the residence promptly. The suspected crime was nonviolent, as the officers had merely observed marijuana plants growing in the Mells' yard. Moreover, when the officer entered the home, there was no evidence anybody else in the residence was armed or presented a danger to the officers.
Further, the second factor--whether the suspect is reasonably believed to be armed--is also unsupported. There was no evidence that Nancy or any other occupants were potentially armed or would attempt to escape the scene. Moreover, Nancy's freedom of movement had not been limited; she was not placed in handcuffs; and Howard's weapon was not drawn. These facts indicate that the situation was peaceful and under control. Although the State points out that Nancy refused to allow the officers to enter her home, the refusal by a suspect of permission to enter his or her home cannot properly be considered as a factor creating exigent circumstances.
The third factor requires a clear showing of probable cause. Nevertheless, the officer's belief that evidence of a crime was actually within the home was based on mere speculation, as he only observed marijuana plants growing in the yard and had no actual knowledge that evidence existed inside the home, as in Platten.
The fourth factor--strong reasons to believe a subject is in the premises--is unsupported by the facts. Procaccini testified that he believed persons may have been inside the residence and felt evidence could potentially be destroyed. Nevertheless, Nancy told Procaccini that no one was inside the home, and Procacinni had no independent knowledge that anybody else was inside the home. As in Cabral, Procaccini testified that he was looking for people, not evidence.
The fifth factor--a likelihood that a suspect will escape if not swiftly apprehended--is not supported. Nancy was outside her home, standing by the officers. Moreover, the officers could have easily secured the perimeter of the house while they obtained a search warrant if they believed other suspects were inside the house.
The sixth factor--the peaceful circumstances of the entry--is supported. Finally, the seventh factor--the possible loss or destruction of the evidence--is not supported based on the information known by the officers. Nothing in the information known by the officers before Procaccini's entry into the home necessarily indicated that there would be evidence of drugs in the residence. Further, there was no evidence that if Procaccini had not entered the residence immediately, evidence could have been destroyed or hidden from investigation. Moreover, exigent circumstances do not include situations where only a mere possibility exists that evidence could be destroyed or concealed.
And, after excising offending parts of the affidavit used to obtain a search warrant of the residence, the COA held that the remaining affidavit was completely insufficient to support issuance of the warrant or reliance on the warrant. As a result, the COA affirmed the suppression of evidence seized from inside the residence.

[Update: the state filed a PR on May 14, 2008.]

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

Wednesday, April 16, 2008

SW Kansas acquittals

In response to my inquiry, Lynn Koehn reports from the Garden City PD's office that he has been busy winning cases: In State v. Garcia, a Seward County agg robbery/agg burglary/agg assault/theft/crim damage prosecution ends with jury verdict of misdemeanor assault (judge granted directed verdict on agg burglary and crim damage, jury acquits on all except lesser of assault). In State v. Martinez, a Seward Count attempted agg burglary, criminal threat, and conspiracy prosecution results in directed verdict on conspiracy and acquittal by jury on remaining counts. And in State v. Eatmon, jury acquits in a Finney County criminal threat prosecution. Way to defend your clients in the Wild Wild West!

Fourth Amendment win

Jennifer Conkling won in State v. Miller, No. 98,230 (Kan. App. April 11, 2008)(unpublished), reversing a Lyon County drug prosecution. Ms. Miller was a passenger in a car that was stopped for an expired tag. The car belonged to a "person of interest" in a drug investigation. While searching the car, officers found Ms. Miller's purse and asked to search it, which she declined. During the search, officers found drug evidence in a duffle bag that also contained men's clothing and a shaving kit. Based on this, officers arrested Ms. Miller and searched her purse, finding evidence of methamphetamine, which was the basis of the drug prosecution.

The state argued that the arrest and search was lawful under Maryland v. Pringle, 540 U.S. 366 (2003), where officers arrested everyone in a suspect car after finding evidence of drug dealing and after every occupant denied possession. The COA held that Pringle was distinguishable because the drugs initially found in this case related to possession, not dealing. The COA noted that officers did not question the occupants of the car regarding the drugs and that the drugs were found in a duffle bag with men's items, which should not have led officers to believe that the drugs belonged to Ms. Miller. Because Ms. Miller's arrest was illegal, the search of her purse was illegal and the COA reversed.

[Update: the state filed a PR on May 9, 2008.]

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

Friday, April 11, 2008

Lots of success in Shawnee County

Here is a Topeka Capital-Journal article reporting that Wendell Betts won in State v. Roberts, getting not guilty verdicts in a Shawnee County attempted aggravated robbery and aggravated battery prosecution. The newspaper article says the jury was only out 40 minutes, although my sources tell me it was more like 30 minutes.

Other successes from Shawnee County in the couple of weeks include Cindy Sewell, who won in State v. Harrison, getting a not guilty verdict in a rape (force or fear) prosecution; Jennifer Roth, who won in State v. Patterson, getting a not guilty verdict in a felony criminal damage to property prosecution; and Stacey Donovan, who won in State v. Jackson, getting a not guilty verdict in a criminal threat prosecution.

Tuesday, April 08, 2008

Jury finds against Sedgwick County jail

Here is a Wichita Eagle article reporting that Mark Schoenhofer won a civil verdict against the Sedgwick County jail stemming from claims of excessive force. Are there other such verdicts against the Sedgwick County jail or other jails?

Monday, April 07, 2008

Judicial elections on the horizon

Here is a Wichita Eagle article reporting on some of the filings for candidates who will be running for district court judge in Wichita this fall. I was sort of wondering if there was any buzz in Sedgwick County and apparently the answer is yes. The filing deadline is still a way off, so expect more candidates.

Friday, April 04, 2008

Fourth Amendment claim is fundamental

Shawn Minihan won in State v. Poulton, No. 95,353 (Kan. April 4, 2008), reversing and remanding for further hearings on Mr. Poulton's Fourth Amendment claims. There were two searches that were considered in this appeal. The COA had already reversed convictions stemming from one of the searches (here is my blog entry on that case). The KSC took up the issue of whether Mr. Poulton could attack the other search on appeal:
The Court of Appeals found, and at oral argument on review the State conceded, that the initial search conducted on November 20, 2003, was illegal. We agree and affirm the decision of the Court of Appeals reversing the convictions based on the initial search.

The Court of Appeals affirmed Poulton's convictions based on the December 27, 2003, search. The Court of Appeals elected not to address Poulton's claim that the evidence seized during the December 27, 2003, search was the fruit of the poisonous tree because Poulton failed to raise the issue in the district court and failed to argue that any exceptional circumstances applied, thereby failing to preserve the issue for appeal.

Appellate courts can consider new issues on appeal in the following circumstances: (1) Cases in which the newly asserted theory involves only a question of law arising on proved or admitted facts and that is finally determinative of the case; (2) cases raising questions for the first time on appeal if consideration of those questions is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) cases upholding the judgment of a trial court even though the trial court may have relied on the wrong ground or assigned a wrong reason for its decision.

At least one of the first two exceptions applies in the present case. Poulton and the State entered into a written stipulation of facts for the bench trial. The written stipulation specifically renewed Poulton's objection to the denial of his motions to suppress and preserved the issue of suppression for appeal. Because there are no factual disputes, the question of whether the evidence stemming from the second search should have been suppressed is a purely legal question. The first exception may apply if it is determined that the evidence should have been suppressed and the suppression finally disposes of the case. The second exception applies because the suppression of evidence based on the violation of Poulton's rights under the Fourth Amendment to the United States Constitution implicates a fundamental right.

So the Court reached the issue for the first time on appeal and remanded for consideration of whether the second search was the fruit of the first search. That's a good holding in light of the posture of the case.

Twenty five minutes to acquittal

Here is a Hutch News article reporting that Sarah McKinnon won an acquittal in a Reno County rape prosecution. The jury only took twenty-five minutes to reach a verdict after a two day trial. Judge Chambers had already granted a judgment of acquittal on an aggravated kidnapping charge. Here is previous coverage of the trial.

Thursday, April 03, 2008

Murder conviction overturned based on lack of jurisdiction

Lydia Krebs won in State v. Breedlove, No. 96,608 (Kan. March 28, 2008), vacating a Sedgwick County murder conviction based on lack of jurisdiction. In 1997, the state prosecuted Mr. Breedlove as an adult for felony murder for acts that occurred when Mr. Breedlove was 17 years 9 months old. The prosecution was based on a previous adult certification. But the previous certification was based on acts that occurred after the alleged felony murder. Mr. Breedlove was convicted and his conviction was affirmed in 1999.

In 2006, Mr. Breedlove filed a motion to correct illegal sentence alleging that the district court lacked jurisdiction because the state should not be able to proceed on a certification finding that was itself based on antecedent acts. On appeal, the state intially conceded the lack of jurisdiction. But then Mr. Breedlove argued that, pursuant to statute, the proper remedy was not vacation of the guilt finding, but remand for imposition of a juvenile sanction. Mr. Breedlove has long ago passed the age where the juvenile court would have jurisdiction over him. The state then backtracked on its concession and tried to argue that adult certification does not involve subject-matter jurisdiction, asking the KSC to overturn clearly applicable precedent.

The KSC was not very persuaded by the state's jurisdictional argument and the argument mainly dealt with the remedy issue:

First, the language of 38-1681 is clear. Accordingly, we are not free to read anything into it as Breedlove suggests, e.g., implied or borrowed orders authorizing prosecution as an adult. Subsection (a)(2) speaks only to the situation where the order is reversed, but the finding of guilty is affirmed. In that event, the respondent is deemed adjudicated as a juvenile offender, and essentially the conviction remains affirmed. Here, there simply was no order.
Second, on a related issue, 38-1681(a)(2) and [State v. Smith, 268 Kan. 222, 993 P.2d 1213 (1999)] concerned proper beginnings in the juvenile court, but subsequent failed attempts, through faulty orders, to certify the defendant as an adult to be prosecuted in district court. In short, proper jurisdiction originally existed in, and perhaps never left, juvenile court. Smith implicitly held that the legislature may provide in the specific instances of district court convictions arising out of failed certification orders, if nevertheless affirmed, that the convictions may be held as established in the juvenile court.
By contrast, the instant case carries a concession by the State that there was a complete failure to attempt to commence juvenile proceedings -- just as in [State v. Mayfield, 241 Kan. 555, 738 P.2d 861 (1987)]. As that court stated: "The subject matter of the action was not a criminal prosecution for a felony, but a juvenile proceeding which was never commenced pursuant to the juvenile code." 241 Kan. at 561. As in Mayfield, Breedlove was always considered as an adult in district court for the First Crimes and always prosecuted as one. And under such circumstances, Mayfield reversed the conviction because of the district court's lack of jurisdiction. 241 Kan. at 561. Without even the semblance of commencing juvenile proceedings against Mayfield and Breedlove pursuant to their respective juvenile codes, and with the resultant lack of jurisdiction in the district courts where they were adjudged guilty, we have trouble understanding that either type of court would have jurisdiction to convict them or to otherwise accept affirmed convictions.
The KSC notes that Double Jeopardy does not appear to prevent re-certification and reprosecution in this case. (I wonder if there might be some statute of limitation problems with some of the non-murder offenses though). So, all Lydia gets is a new trial on a ten-year old first-degree murder conviction! I wish I had more "losses" like that!

State really loses on interlocutory appeal

William Mahoney won in State v. Mitchell, No. 98,512 (Kan. March 28, 2008), affirming Judge McNally's order refusing to admit evidence surrounding a prior adjudication in a Wyandotte County criminal possession of a firearm prosecution, which was the tail wagging a fiirst-degree murder prosecution. The state sought to admit the evidence even though Mr. Mitchell was willing to stipulate to the prior adjudications that were the elements of the low-level offense. The district court refused to admit the evidence and the state filed an interlocutory appeal.

The KSC noted that under SCOTUS case law and its own case law, this stipulation renders the other evidence irrelevant:

When a defendant stipulates to his or her status as a prior offender prohibited from owning or possessing a firearm pursuant to K.S.A. 21-4204, evidence of the prior crime is no longer relevant to prove a disputed material fact because the fact of the defendant's status is not disputed. Furthermore, under the second step in the Gunby analysis, the evidence of the defendant's prior crime is more prejudicial than probative if the defendant is willing to stipulate to his or her status. See [Old Chief v. United States, 529 U.S. 172, 191 (1997)]; United States v. Wacker, 72 F.3d 1453, 1472-73 (10th Cir. 1995); [State v. Lee, 266 Kan. 804, 815, 977 P.2d 263 (1999)].
But the KSC not only holds against the state on this point, it holds that because the state was not impaired from prosecuting under the district court's order, the interlocutory appeal was not valid:

Pursuant to Lee, the State is required to accept Mitchell's stipulation as to his status and is precluded from admitting independent evidence to the jury to establish the elements of Mitchell's status. The State has failed to demonstrate that the district court's decision is erroneous and not in compliance with Kansas law. Thus, the State cannot demonstrate that the exclusion of its proposed stipulation of the prior juvenile adjudication substantially impairs its ability to prosecute the case. If the exclusion of evidence does not substantially impair the State's ability to prosecute the case, the State cannot raise the issue as an interlocutory appeal. As a result, we do not have jurisdiction to address the State's appeal.
And the kicker is that, because the appeal is not authorized, the speedy trial clock has been running the whole time:

The time for the State's unauthorized interlocutory appeal must be charged against the State. K.S.A. 22-3402 does not specifically address the situation when the defendant revokes his or her waiver of the right to a speedy trial. However, it provides that a defendant in custody solely for the crime charged is entitled to be tried within 90 days of arraignment. K.S.A. 22-3402(1). If the defendant is out on bond, he or she is entitled to be tried within 180 days of arraignment. K.S.A. 22-3402(2). Mitchell was arraigned in 2005 but waived his right to a speedy trial until March 28, 2007. The district court set Mitchell's bail at $125,000 after it suspended his trial. Other than Mitchell's pleading filed on March 28, 2007, which states that Mitchell was in custody, there is nothing in the record to establish whether Mitchell is currently in custody or whether he bonded out. Assuming that Mitchell remains in custody, the State is entitled to a new 90-day period after Mitchell reasserted his right to a speedy trial. The 90-day period expired on June 28, 2007. Assuming that Mitchell was released on bond, the State is entitled to a 180-day period after Mitchell reasserted his right to a speedy trial. The 180-day period expired on September 27, 2007. Under either scenario, the State has failed to bring Mitchell to trial within the statutory speedy trial period. As a result, the case against Mitchell must be dismissed and he is discharged from further liability.
So the result of the state trying to get in just a little more evidence on the criminal possession of a firearm charge, it loses its murder prosecution. Perhaps the state should be a little more choosy in picking its battles.

[Update: the state filed a motion for rehearing on April 16, 2008].

[Futher update: the KSC denied the state's motion for rehearing and the mandate issued on May 29, 2008.]

Teen to be tried as juvenile

Here is the Kansas City Star article reporting that Debra Vermillion won at a adult certification hearing in a Johnson County manslaughter prosecution. Judge Cameron order that the case will proceed in juvenile court, not adult district court.

I'm frequently on the wrong side of these hearing (client certified for adult prosecution in murder cases). I've wondered what proportion are certified for adult prosecution and how well defense attorneys defend them (a lot of the ones that I see seem to be somewhat lacking at this critical stage). Apparently, Debra did a great job in this case.

Wednesday, April 02, 2008

Can prior inconsistent statement be used as substantive evidence?

I saw this entry over at Appellate Review noting a split of authority on whether prior inconsistent statements can be used as substantive evidence. This issue comes up periodically in Kansas and I even saw it just in the last few weeks on some discussion boards.

The issue often comes up when you have a recanting witness. Witness A tells police that client committed offense. At trial, A recants and says client did not do it. If there is no other substantive evidence, should client be acquitted?

Kansas law right now says prior inconsistent statements can be substantive evidence and are sufficient to support conviction. See State v. Davis, 236 Kan. 538, 540-41, 694 P.2d 418 (1985); State v. Fisher, 222 Kan. 76, 82, 563 P.2d 1012 (1977). But in light of the Confrontation Clause reformation of the last 5 years, I wonder if this law is not suspect. And in any case, many other jurisdictions don't allow prior inconsistent statements as substantive evidence.

So if you have a case where the state is using such statements, be sure to object, ask for a limiting instruction, and raise the issue on appeal.

No arrest, so no search incident

Jessica Glendening of the Johnson County Public Defender Office won in State v. Murphy, No. 99,058 (Kan. App. March 21, 2008)(unpublished), affirming Judge Anderson's suppression order in a Johnson County drug prosecution. The case turned on a detailed analysis of whether Mr. Murphy was arrested (allowing for a broader search incident to arrest) or merely detained (allowing a more limited Terry type of search):
Looking objectively at the facts, a reasonable person under the circumstances would not have believed an arrest had occurred. Sparks had not patted down Murphy, nor physically restrained him in any way. Instead, Sparks asked for permission to search, which would not have been necessary if Sparks believed he was performing a search incident to a lawful arrest. Given these facts, a reasonable person would not have believed Murphy was under arrest when Sparks started searching his car. In fact, if Sparks had found the intended object of his search, Murphy's identification, Sparks could have then written Murphy a citation and ended the investigatory detention. When one views all the circumstances, Murphy was not under arrest. These facts are more indicative of a routine traffic stop than an arrest.

Because Murphy was subject to an investigatory detention rather than an arrest, Sparks' search is circumscribed by the rules set forth in Terry. The case restricts an officer's search to a search for weapons in the defendant's immediate area only. An officer may not search for evidence during an investigative detention. Thus, Sparks'
search for evidence in a bag in the back seat of Murphy's car before placing him under arrest exceeds the scope of a Terry search. Sparks performed an illegal search, and the evidence discovered in the illegal search must be suppressed.
The COA avoided possible constitutional implications of the new search and seizure statute by noting that this search occurred before the effective date of the new statute.

[Update: the state filed a PR on April 21, 2008].

[Further update: the KSC denied the PR and the mandate issued on July 8, 2008].

KSC rejects John Doe warrant

Rebecca Woodman won in State v. Belt, No. 95,575 (Kan. March 28, 2008), affirming dismissal orders in three counties involving "John Doe" warrants, warrants based on DNA. These orders ended sexual assult prosecutions in each county. Although the KSC accepted that such warrants could be valid, the "mere listing of DNA loci in the warrant or in a supporting affidavit cannot" identify a defendant with reasonable certainty:
These cases from California and Wisconsin support the proposition that a warrant identifying the person to be arrested for a sexual offense by description of the person's unique DNA profile, or incorporating by reference an affidavit containing such a unique profile, can satisfy constitutional and statutory particularity requirements. See, e.g., K.S.A. 22-2304. We do not disagree with this proposition in the abstract. But this case is concrete. Here, neither the John Doe warrants nor the affidavits supporting them set forth the unique DNA profile of their subject.

. . . .

Moreover, as Belt notes, there was no reason the State could not have particularly described the perpetrator's unique DNA profile in the warrants or their supporting affidavits. The unique profile was known and could have been set out. That genetic information was necessary to provide an evidentiary baseline for probable cause. The fact that it would need to be verified scientifically once defendant was seized did not eliminate the need for this baseline to be drawn in the warrant in the first place. The affidavits' references to unattached, unsworn, extrinsic evidence was insufficient to fulfill the constitutional and statutory requirements and cure the defective warrants.

So this is a win for Belt, but also sort of a win for the state on the law. And since Belt is sitting on death row for an unrelated offense, so the state didn't really have much to lose in his specific case.

Here is coverage in the Wichita Eagle. And here is coverage on

Tuesday, April 01, 2008

May 2008 KSC docket

Here are the criminal cases on the KSC docket for May 12-15, 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.

May 12, 2008-Monday-a.m.

State v. Ruben Warledo, No. 97,759 (Sedgwick)
Direct appeal; First-degree murder
Randall L. Hodgkinson (argue), Jennifer E. Conkling (brief)
[Affirmed; Luckert; Aug. 8, 2008]

  1. Improper admission of confession
  2. Improper admission of videotape including invocation of right to counsel
  3. Improper admission of prior bad acts
  4. Gruesome photographs
  5. Prosecutorial misconduct in re comment on premeditation
  6. Hard 50 sentencing issues
Gary McCracken v. Frank Kohl, No. 98,607 (Leavenworth)
Habeas appeal (transfer)
Rhonda K. Levinson
[Affirmed; Johnson; Sept. 5, 2008]

  1. Immunity under self-defense statute
State v. John Layton, No. 98,275 (McPherson)
Habeas appeal (transfer)
Michael P. Whalen
[Sentence vacated and remanded; per curiam (unpublished)]
  1. Ineffective assistance of appellate counsel in re McAdam issue

May 12, 2008-Monday-p.m.

State v. Hector Gallegos, No. 98,949 (Rice)
Direct appeal; First-degree murder
Randall L. Hodgkinson (argue); Jennifer E. Conkling (brief)
[Affirmed; Davis; Aug. 1, 2008]

  1. Failure to instruct on lesser
  2. Improper burden of proof instruction
State v. Eugene Hall, No. 95,896 (McPherson)
Probation revocation appeal (petition for review)
Rachel L. Pickering (argue); Jay Witt (brief)
[Affirmed; Luckert; Oct. 31, 2008]

  1. State's waiver of revocation by delay

May 13, 2008-Tuesday-a.m.

State v. Patrick Angelo, No. 96,175 (Wyandotte)
Direct appeal; First-degree murder
Michael J. Bartee
[Affirmed; Nuss; Dec. 5, 2008]

  1. Statutory speedy trial violation
  2. Batson violation
  3. Failure to instruct on lesser of second-degree
  4. Improper finding that defendant introduced character evidence
  5. Failure to grant mistrial
  6. Improper admission of tape after witness excused
State v. Marcus Tyler, No. 96,299 (Wyandotte)
Direct appeal; First-degree murder
Korey A. Kaul
[Affirmed; Johnson; Sept. 5, 2008]

  1. Judicial misconduct in re consulting lay persons on instruction
  2. Insufficient evidence
  3. Apprendi error for judge to certify for adult prosecution
  4. Presumption of prosecution as adult violates Due Process
State v. Larhon Cook, No. 98,671 (Wyandotte)
State appeal from finding statute unconstitutional
Janine Cox
[Reversed; Rosen; July 25, 2008]

  1. Offender registration statute is Ex Post Facto

May 14, 2008-Wednesday-a.m.

State v. Brenton Cook, No. 97,440 (Saline)
Direct appeal; First-degree murder
Christina M. Waugh
[Affirmed; Johnson; September 5, 2008]

  1. Insufficient evidence
  2. Failure to give self-defense instruction
  3. Failure to give manslaughter instruction
  4. Failure to give unanimity instruction
  5. Improper admission of bad acts evidence
State v. Gregory Moore, No. 97,683 (Sedgwick)
Direct appeal; Capital murder
Reid T. Nelson
[Affirmed; Beier; Oct. 24, 2008]

  1. Failure to give manslaughter instruction
  2. Failure to give voluntary intoxication instruction
  3. Improper exclusion of defense expert in re intoxication

New judge in Douglas County

Here is the Governor's press release announcing her appointment of Peggy Carr Kittel to be district judge in Lawrence. Here is the Lawrence Journal-World article reporting on the appointment. She has been a pro tem district judge there for several years and fills the vacancy created by Stephen Six becoming Attorney General.

[Update: here is another Lawrence Journal-World article reporting on Judge Kittel's swearing-in, including photos].