Saturday, December 19, 2009

McPherson acquittal in agg kidnapping case

Here is a Hutch News article reporting that David Harger won an acquittal in State v. Jackson, a McPherson County agg kidnapping/agg robbery/agg burglary prosecution.

Monday, December 14, 2009

Parties stipulate to IAC at capital sentencing phase

Here is a Topeka Capital-Journal article indicating that the state and defense have agreed to a stipulation that Phillip Cheatham received ineffective assistance of counsel at the sentencing phase of his capital murder trial. We blogged about coverage of this case previously here.

[Update: here is another Topeka Capital-Journal article reporting on the different sides on IAC at the guilt phase. The article indicates that Judge Braun has until February 8, 2010 to issue a decision.]

Friday, December 11, 2009

Motive and intent evidence

Robert P. Eye and Elizabeth R. Herbert won in State v. Wells, No. 99,813 (Kan. Dec. 11, 2009), obtaining a new trial in a Riley County criminal sodomy prosecution. The KSC reversed due to improper admission of prior bad act evidence for "motive" and "intent." The KSC reiterated the law regarding admission of this type of evidence and then specifically analyzed whether "motive" was a disputed material facts in this case:

In our view, the use of the defendant's prior bad acts to ostensibly prove his motive for entering the bedroom here is a dangerously short step away from simply using prior bad acts to prove his motive for committing the current, virtually identical, bad act. A prosecutor might argue: "We know his motive for going to her room that night was to sodomize her–because the evidence shows that he had sodomized her in this same house, perhaps in this same room, on prior occasions." Indeed, the language chosen by the State comes close to making this very argument in the instant case.

. . . .

Conviction for mere "propensity"–defined by The American Heritage Dictionary of the English Language 1048 (1971), as an innate inclination, a tendency or bent–would be the almost certain result of admitting this evidence for motive. If this evidentiary admission practice were approved, prosecutors would understandably begin pressing trial courts for admission of all other past bad acts of a defendant to serve as motive for his or her present charges, especially when any degree of similarity existed.

Similarly, the KSC analyzed "intent" as a potential material disputed fact:

If the defendant admits the conduct but offers an "innocent" explanation, the Dotson court suggests the evidence of other crimes is admissible on intent. But if, as in Dotson, the defendant admits the conduct and offers no explanation, and no inference can be drawn regarding the innocence of the conduct, the evidence is not admissible on intent. When a defendant wholly denies committing the alleged acts, admitting evidence of prior bad acts to prove intent is error.

. . . .

Here, the disputed fact is whether Wells touched C.B., not Wells' purpose in entering her bedroom. He completely denies any touching. Therefore, intent was not a disputed material fact in the crime of aggravated criminal sodomy.

Because neither "motive" nor "intent" were disputed material facts, the KSC held the prior bad act evidence was improperly admitted in the trial. Also, because of the lack of physical corroborating evidence, the KSC held that the improper admission was prejudicial and ordered a new trial.

You also have to prove how much it's worth

Washburn student intern Katie Whitsitt and I won in State v. Reed, No. 101,165 (Kan. App. Dec. 11, 2009)(unpublished), obtaining a new trial in a Reno County criminal damage to property case. Ms. Reed was alleged to have thrown a hammer at a 2006 Chevy Silverado pickup truck, causing damage estimated by a shop to be $1,165.64. The COA agreed that to establish felony criminal damage to property (damage over $1,000), the state had to show that the property damaged was worth at least $1,000.
Reviewing the record with care, we find that the evidence supporting a value of the damaged truck consisted of its make and model (Chevy Silverado pickup), its vintage (2006), its mileage (37,000), and its condition from photos (appears in good condition).
On this record, the COA held that there was sufficient evidence to support a finding that the truck was worth $1,000 or more. But the COA also held that "given the rather scant evidence of value and the defense argument that [value] had not been established" the district court should have given a requested instruction for misdemeanor criminal damage to property. As a result, Ms. Reed gets a new trial.

I think this is sort of an interesting result. Are jurors really expected to just "know" the fair market value of a vehicle. I wonder at what point the record would be insufficient in the COA's mind: a 2005 truck? a 2000 truck? a 2006 truck with 100,000 miles? a 2004 truck with 75,000 miles? Maybe it's just one of those "you know it when you see it" holdings.

[Update: neither party filed a PR and the mandate issued on January 14, 2010.]

Wednesday, December 09, 2009

Can't detain just because they have a dealer tag

Thanks to Tenth Circuit Blog for noting U.S. v. Pena-Montes, No. 08-2169 (10th Cir. Dec. 7, 2009), where federal public defender Stephen McCue won reversal and remand on Fourth Amendment grounds in a New Mexico federal illegal re-entry prosecution:
Although the officer initiated the stop based on the reasonable belief that the vehicle lacked a license plate, after he pulled it over, he observed that it did, in fact, display a “dealer tag” but continued the detention to question the vehicle’s occupants to determine whether the plate’s use was lawful. Because we conclude that the officer could not have reasonably suspected criminal activity after he saw a dealer plate but before he began questioning the vehicle’s occupants, we hold that the continued detention of Pena-Montes violated the Fourth Amendment’s prohibition against unreasonable searches and seizures.

As a result, the Tenth Circuit reverses and remands for a hearing on whether indentity must be suppressed (deemed a separate issue).

Friday, December 04, 2009

They're back! Woo-hoo!

So glad to see Kansas Federal Defenders back in the blogosphere! What a brain trust keeping us up to date on federal case law and generally smart thoughts on criminal law/procedure! Yay!

Wednesday, November 25, 2009

Governor's budget cuts hourly rate for appointed counsel

The governor recently released his plan to balance the state's budget for fiscal year 2010. The expenditure changes for BIDS are described as follows:
Add $173,163 for Assigned Counsel caseload; then reduce $686,456 to reduce Assigned Counsel hourly rate from $80 to $62.
Here is a press release from the governor's office discussing the budget plan.

Here is a Hutch News article reporting on the cut-backs and reactions to them.

Maybe you shouldn't assume the officer is telling the truth

I don't usually blog on license revocation proceedings, but I thought this was a pretty remarkable decision that Roger L. Falk won in Baconrind v. KDOR, with Judge Wheeler vacating an administrative license revocation based on failure to allow independent testing. The main issue was a factual dispute whether Mr. Baconrind had willfully refused testing and/or had requested independent testing. Judge Wheeler was fairly blunt in his comments about the trooper and the KDOR attorney:
Before making a final analysis, comment on the manner of presentation of the evidence is necessary. The Kansas Department of Revenue's counsel stipulated to the admission of Plaintiff's Exhibit 1, the video tape of the car stop and subsequent events, even though counsel admitted he had not reviewed the same. Counsel stated to the court that he was too busy handling these types of cases to have reviewed the case in preparation for the trial of this case. This was followed by the presentation of evidence by KDOR's counsel which included his examination of the trooper, which elicited the testimony of the trooper that plaintiff did not make any request for independent testing. The video, however, is clear that not only was a
request made, but it was denied by the trooper. Counsel, therefore, by his failure to review the video tape, assisted this trooper in presenting testimony obviously contradictory to the evidence in this case.

This contradiction, coupled with the attitude of the trooper apparent from his comments toward the plaintiff during and subsequent to testifying, and further buttressed by this court's observation of the attitude and demeanor of the trooper while testifying, lead this court to the conclusion that the trooper's credibility is severely lacking, not only as to the issue of independent testing, but also as to his views as to the manner in which plaintiff attempted to take the intoxilizer test.
Because Judge Wheeler finds that Mr. Baconrind did not willfully refuse the test and did request independent testing, he vacates the suspension order.

I guess I think this decision is interesting on a couple of different levels. I know that some writers have opined that perjury by law enforcement officers is a widespread problem and cases like this lend credence to that position. If this trooper hadn't been videotaped, I suppose he would have gotten away with it. I suppose law enforcement officers internally rationalize this type of act, but in reality it is both a crime and a breach of public trust, no matter how much they think the end justifies the means.

I wonder if the trooper is being prosecuted for perjury? Also, I wonder if this trooper has received any sort of professional sanction? If anyone knows, please comment.

Friday, November 20, 2009

January 2010 KSC Docket

Here are the criminal cases on the KSC docket for January 25-28, 2010. 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 25--Monday--a.m.

State v. Joshua Stone, No. 100,076 (Sedgwick)
Direct appeal; Agg Indecent Liberties (Jessica's Law)
Ryan Eddinger
[Reversed and remanded; Rosen; August 20, 2010]
  1. Prosecutorial misconduct
  2. Failure to suppress statements
State v. Kevin Labelle, No. 98,136 (Sedgwick)
Sentencing appeal (petition for review)
Rachel L. Pickering
[Affirmed/vacated/remanded; Nuss; May 28, 2010]
  1. Improper use of juvenile for persistent sex offender finding
State v. Reginald Johnson, No. 100,544 (Sedgwick)
Direct appeal; First-degree murder
Lydia Krebs
[Affirmed; Davis; August 6, 2010]
  1. Failure to give lesser instruction on voluntary manslaughter
January 26--Tuesday--a.m.

State v. Jeffery Nelson, No. 101,064 (McPherson)
Direct appeal; First-degree murder
Meryl Carver-Allmond
[Affirmed/reversed; Biles; Nov. 19, 2010]
  1. Failure to give imperfect self-defense instruction
  2. Improper intent and premeditation instructions
  3. Improper admission of prior bad act evidence
  4. District court used improper standard for evidence for hard-50
January 27--Wednesday--a.m.

State v. Ruby Thomas, No. 98,123 (Geary)
Direct appeal (petition for review); Possession
Carl Folsom, III
[Reversed; Nuss; Jan. 21, 2011]
  1. Failure to suppress evidence
  2. Statutory speedy trial violation

  3. Confrontation Clause (Laturner)
State v. Tabitha Bonner, No. 98,430 (Montgomery)
Sentencing appeal (petition for review)
Carl Folsom, III
[Affirmed; Luckert; March 5, 2010]
  1. Failure to consider Labette
  2. BIDS administrative fees

Tuesday, November 17, 2009

Governor grants pardon

Here is a Lawrence Journal World article reporting that the KU Defender Project helped Samuel Jarvis Hunt obtain a pardon of his 1969 Sedgwick County robbery conviction. The article sets out the history and background of the case:
For some observers, Hunt's pardon represents a righting of a wrong that highlighted tension in Kansas, and in the country, in the 1960s.

Hunt, along with seven other black defendants from Kansas known as the "Wichita 8," was convicted of robbery by an all-white jury.
The pardon application was supported by former judge and attorney general Robert Stephen. This is the second clemency action in quite some time. Governor Sebelius issued a partial pardon in one case and this one.

Here is coverage at

Saturday, November 14, 2009

Marx strikes again

Michael C. Hayes won in State v. Jimeson, No. 102,158 (Kan. App. Nov. 13, 2009) (unpublished), affirming Judge Patton's suppression of evidence from an illegal traffic stop. The officer in the case initiated a traffic stop after he observed Jimeson's motorcycle momentarily drift onto the shoulder of the road. The district court rejected the officer's claim that the stop was based on public safety and found that the officer did not have reasonable suspicion of a traffic violation.

The COA held that substantial competent evidence supported the district court's conclusion that the "public safety stop" was a pretext for an investigatory detention:

Our review of the record impels us to agree with the trial court. We too are not convinced the officer made a public safety stop in a case where the first words from the police officer were "Are you drunk?
The COA also relied on State v. Marx (blogged about here) to conclude that, "even if [the officer] had a suspicion of a K.S.A. 8-1522(a) violation, Jimeson's brief lane breach would not have been enough to validate a traffic stop."
[Update: the state did not file a PR and the mandate issued on December 17, 2009.]

Friday, November 13, 2009

Will Kargus get a petition for review?

Megan Herrington won in Kargus v. State, No. 100,852 (Nov. 6, 2009), affirming Judge Tatum's order granting Mr. Kargus relief on his claim of ineffective assistance of appellate counsel with regard to failure to file a petition for review on his behalf in his direct appeal. We have blogged about this case previously here, when the KSC established that defendant's do have a statutory right to effective assistance of counsel at the petition for review stage.

On remand, Judge Tatum granted relief to Mr. Kargus, allowing him to file a late petition for review, and the state appealed. On appeal, the state conceded that appellate counsel did not consult with Mr. Kargus about a possible petition for review; nor did the state contest that Mr. Kargus would have directed that appellate counsel file a petition for review, had he been consulted. Instead, the state argued that failure to file the petition for review was not objectively unreasonable. The COA disagreed:

[Appellate counsel's] failure to define the scope of his representation, compounded by statements which could have led Kargus and Monroe to misunderstand that scope, was ineffective assistance in itself. A lawyer is obliged to “keep a client reasonably informed about the status of a matter” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Given that the decision to appeal belonged to Kargus, he needed enough information to accomplish his wish to “go as far as it would go.” This information included Kargus' right to file a petition for review and whether [appellate counsel] was representing him for that purpose. The fact that this information was not communicated was ultimately attributable to [appellate counsel], not to Kargus or Monroe.
The state also argued that the decision to file a federal habeas petition in lieu of a petition for review was objectively reasonable. The COA again disagreed:
Given Kargus' stated intention to have his appeal “go as far as it would go,” [appellate counsel's] strategic decision to forego the filing of a petition for review was objectively unreasonable. On the one hand, [appellate counsel] did not claim that his failure to file a petition for review provided any strategic benefit to Kargus. Indeed, no benefit is apparent. On the other hand, [appellate counsel's] failure resulted in Kargus being procedurally precluded from having his case reviewed by the Kansas Supreme Court. This consequence was clearly detrimental to Kargus' stated intention to obtain appellate relief from the adverse decision of the Court of Appeals.

Moreover, [appellate counsel's] failure to file a petition for review (thereby failing to exhaust Kargus' state remedies) also procedurally barred Kargus from relief in the federal court. This was an adverse consequence which Kargus ultimately conceded in the federal district court action.
[Update: the state, ironically, filed a petition for review from this decision on December 9, 2009].
[Further update: the KSC denied the state's petition for review from the COA decision affirming the IAC finding and contemporanously denied Mr. Kargus' petition for review in the original case on March 21, 2010.]

Monday, November 02, 2009

Speedy acquittal in theft case

Lacy Gilmour won recently in State v. Mitchell, getting an acquittal in a Sedgwick County theft prosecution in less than 20 minutes. Here is Lacy's decription of the case. Thanks to What the Judge Ate for Breakfast for the tip.

Saturday, October 31, 2009

Permanently incompetent to stand trial

Lane Williams and Kirk Lowry from the Disability Rights Center of Kansas won in State v. Johnson, No. 96,526 (Kan. Oct. 30, 2009), affirming Judge Becker's dismissal of a Reno County DUI-manslaughter prosecution. This case has a fairly long history, as described in the opinion. As noted in the opinion, Mr. Johnson drove a vehicle into a tree, killing the passenger and himself suffering coma-inducing brain injury. The state subsequently charged Mr. Johnson with DUI-manslaughter. To make a fairly long story shorter, the district court found that, due to "widespread and severe deficits in memory, nonverbal reasoning, sensory perception, and processing speed, including permanent impairment in these areas," Mr. Johnson would not be able to assist in his defense and, therefore, was incompetent to stand trial. As required by statute, Mr. Johnson was committed for treatment and evaluation. The evaluator opined that because of the brain injury, there was not a substantial probability that Mr. Johnson would be competent to stand trial in the foreseeable future. As required by statute, the district court then requested that SRS begin with involuntary committment proceedings. And here's where it gets difficult.

A letter from Kansas Advocacy and Protective Services (the predecessor to the Disability Rights Center) infomed the district court that SRS can only proceed on involuntary committment for persons that are "mentally ill." But a person with a brain injury, like Mr. Johnson, is not mentally ill and not subject to involuntary commitment. The district court considered this information and originally held that the statute did not require it to order a futile act. Because Mr. Johnson could not be prosecuted and could not be involuntarily committed, the district court order the charges dismissed.

The state appealed that order in 2004. I was Mr. Johnson's attorney at that point. The COA reversed Judge Becker's order, reasoning that the district court failed to order SRS to begin involuntary commitment proceedings. After the COA decision, the Disability Rights Center entered its appearance and filed a petition for review, which was denied. (In a very candid moment in the instant opinion, the KSC acknowledges that "Inexplicably, the Supreme Court denied Johnson's petition for review, and the case was remanded to the district court.")

So, the case returned to the district court and the district court followed the COA's order and ordered SRS to begin involuntary commitment proceedings. Because SRS acknowledged in its petition that Mr. Johnson was not subject to involuntary commitment, the district court quickly dismissed the involuntary commitment proceedings and notified the district attorney.

The state then filed a request for a new competency hearing, because it had been four years since the previous competency hearing. The district court found that the state had not presented any evidence justifying a new competency hearing and again released Mr. Johnson from custody. And, again, the state appealed. And, again, the COA revered and ordered the district court to conduct further proceedings. But, this time, the KSC granted the petition for review.

The KSC reviewed the relevant statutory provisions and acknowledged the gap between the competency statutes and the involuntary commitment statutes and reviewed some of the legislative grappling with this very problem.

Although K.S.A. 22-3303(1) mandates that the district court order SRS to commence proceedings to involuntarily commit a defendant who has been adjudged incompetent to stand trial with no substantial probability of attaining competency in the foreseeable future, SRS cannot legally comply with that order under K.S.A. 59-2945 et seq. if the incompetency is due solely to an organic mental disorder such as traumatic brain injury.

. . . .

One can only imagine the consternation and frustration the district court and SRS must have experienced when faced with an appellate court mandate to do that which could not be done.

The KSC noted that the legislature has attempted to strike a balance between these competing concerns by amending the statute to allow involuntary commitment of persons in these situations who are charged with higher level offenses. But Mr. Johnson did not fall within those amended statutory provisions.

Finally, the KSC considered whether the district court erred by failing to hold a new competency hearing.

The district court was absolutely correct in its assessment of the relevance of the dismissal of the involuntary commitment proceedings. That action simply meant that there was no probable cause to believe that Johnson was a mentally ill person subject to involuntary commitment for care and treatment because his sole diagnosis was an organic mental disorder. An organic mental disorder is, however, a mental defect within the meaning of the competency statutes. As noted previously, the district court understood the distinction; the prosecutor should have understood it as well.

The KSC also flatly rejected the COA's second opinion that there were grounds for a new competency hearing:

the experts' opinions directly refute Johnson II's assertion that passage of time since the last medical evaluation of Johnson's cognitive abilities provides a reasonable ground to believe he is not competent. If the diagnosis is permanent and irreversible brain damage, the relative date of that assessment is immaterial.
As a result, the KSC reversed the COA and affirmed Judge Becker's dismissal without prejudice.

There's a lot of good language in this decision on competency issues. In particular, the KSC acknowledges the fact that competency involves not just understanding, but ability to assist in the defense. It seems to me that a lot of the hack evaluations that are done really focus only on understanding. Failure to investigate the nature of the defense and the defendant's ability to assist in that defense may be a fertile ground for cross-examining some of these "doctors."

I also wonder about this legislative fix noted by the KSC. Persons can be involuntarily committed for the rest of their lives, without treatment and, therefore, without hope of release, based on an allegation by the state? As noted by the KSC, such a result is "akin to a life sentence without possibility of parole" for a person that has been convicted of no crime. That seems to have some pretty obvious and big Due Process implications.

Here is coverage of the case in the Hutch News.

Friday, October 30, 2009

Suppression of statement affirmed

Richard Jones won in State v. Solis-Munoz, No. 99,632 (Kan. App. Oct. 23, 2009)(unpublished), affirming Judge Leuenberger's suppression of portions of statements in a Shawnee County second-degree murder prosecution. The COA had previously affirmed the suppression order, but the KSC granted review and remanded for further consideration. On remand, the COA again held that substantial competent evidence supported Judge Leuenberger's finding that the statements extracted from Mr. Solis-Munoz were involuntary:
Here, in light of the translation and the DVD, there is substantial competent evidence to support the district court's findings. The district court had multiple opportunities to review the DVD and make judgments about the conditions of the interrogation. While the interrogation took place in relatively short segments-15 minutes, 40 minutes, 10 minutes-Solis-Munoz was left alone for long periods of time and had been in an interrogation room for approximately 7 hours. Although he never asked to communicate with the outside world, no offer was made to allow him to talk to anyone.

As I've noted before, I'm not sure this is the right standard of review. The judge doesn't really find that the statements are involuntary, only that the state failed to meet its burden of proving that the statements were voluntary. That's a negative finding with a different standard of review. But I suppose the result would be the same.

[Update: the state did not file a PR from the latest COA decision and the mandate issued on December 4, 2009.]

Saturday, October 24, 2009

Unreasonable delay counts against State for speedy trial purposes

Scott C. Gyllenborg , of Gyllenborg & Dunn, P.A., won in State v. Harms, No. 100,159 (Kan. App. Oct. 23, 2009) (unpublished), affirming Judge Davis' order dismissing criminal charges against Harms based upon the state's failure to bring Harms to trial within 180 days of his arraignment as required by K.S.A. 22-3402(2).

The issue in the case was whether time would be attributable to Harms for speedy trial purposes when the state filed a motion to continue the suppression hearing (several months after Harms had filed a motion to suppress). The COA held that the time was attributable to the State:
[W]e reject the State's argument that all of the time between the filing of the motion to suppress and the resolution of the motion is attributable to the defendant, regardless of the circumstance. And because the State does not argue that its request for a continuance of the June 6, 2007, suppression hearing was reasonably occasioned by or attributable to the filing of the motion to suppress, we need not consider that issue.

Nevertheless, we note that when the State filed its motion for continuance of the suppression hearing, it asserted it needed more time to respond to the motion to suppress and that the prosecutor had a family emergency. The State did not suggest, however, that the additional time was needed because there had been insufficient time to respond. Nor would the record support such an argument, since the State's motion to continue the suppression hearing was made more than 2 months after the motion to suppress was filed.
The COA noted, "when the defendant files a motion, only a reasonable time to process the motion may be charged against the defendant." Because the time after the state's motion to continue was not reasonably attributable to Harms' filing of the motion to suppress, the COA affirmed the dismissal of the charges against Harms because Harms was not brought to trial within 180 days of his arraignment as required by K.S.A. 22-3402(2).
[Update: the state filed a PR on November 23, 2009.]
[Further update: the KSC denied the PR and the mandate issued on June 25, 2010.]

Thursday, October 22, 2009

Restrictions on cross-examination warrant new trial

Ron Wurtz, federal PD, won in U.S. v. Robinson, No. 08-3180 (10th Cir. Oct. 20, 2009), obtaining a new trial in a federal felon in possession prosecution. The issue prompting reversal was failure to allow access to an informant's medical records and prohibition on questioning the informant about mental health history:
Six days before Robinson’s trial, the government’s star witness—the CI who purchased the gun from Robinson—was involuntarily committed to a mental health facility. The district court reviewed the CI’s medical files in camera but refused defense counsel access to them. It also precluded defense counsel from asking the CI any questions about his mental health history or his use of prescription medications. Robinson was subsequently convicted of violating of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and sentenced to 33 months’ imprisonment.

We must decide if the district court’s refusal to provide Robinson access to the CI’s medical records contravened due process and whether the court’s limitations on cross-examination of the CI violated the Sixth Amendment. We answer both questions in the affirmative.
A majority of the panel held that the errors were not harmless and therefore reversed and remanded for a new trial.

Tuesday, October 20, 2009

December 2009 KSC Docket

Here are the criminal cases on the KSC docket for December 7-11,2009. 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.

December 7--Monday--a.m.

State v. Michael Hughes, No. 98,716 (Sedgwick)
Sentencing appeal (petition for review)
Matthew J. Edge
[Aff'd/Rv'd; Rosen; Feb. 12, 2010]
  1. Insufficient showing of waiver of counsel for priors
  2. Improper enhancement of sentence based on priors not in complaint
State v. Gregory Berry, No. 100,512 (Sedgwick)
Direct appeal; First-degree murder
Heather Cessna
[Rv'd/Rmd; Biles; July 22, 2011]
  1. Defense counsel abandoned client
  2. Failure to give lesser included offense instruction
  3. Failure to show causation
  4. Ineffective assistance of counsel
  5. Failure to give a requested causation instruction on felony murder
  6. Prosecutorial misconduct
State v. Sean Ernesti, No. 101,925 (Douglass)
State appeal
J. Ryan Hare, Jay Norton
[Reversed; Luckert; August 27, 2010]
  1. Certification of intoxilyzer

December 8--Tuesday--a.m.

State v. Candy Daniel, No. 101,622 (Butler)
Direct appeal (transfer); Possession
Randall L. Hodgkinson
[Affd; Biles; Nov. 19, 2010]
  1. Whether Gant error requires suppression
Stanton Holt v. State, No. 101,563 (Geary)
K.S.A. 60-1507 appeal
Gerald E. Wells
[Aff'd/Rv'd; Nuss; May 6, 2010]
  1. Failure to conduct evidentiary hearing on IAC claim
  2. Improper ban on future or prospective causes of action
State v. Randy Marler, No. 100,820 (Sumner)
Direct appeal; Jessica's Law
Rachel L. Pickering
[Affirmed; Johnson; Jan. 29, 2010]
  1. Improper prior bad act evidence limiting instruction
  2. Improper denial of downward departure

December 9--Wednesday--a.m.

State v. Tyrone Leaper, No. 98,403 (Wyandotte)
Direct appeal (petition for review); Second degree murder
Sarah Morrison (brief); Heather Cessna (argue)
[Affirmed; Nuss; September 3, 2010]
  1. Failure to declare mistrial after juror reported that a witness stole evidence during trial
  2. Improper admission of transcripts
State v. Marcy Carapezza, No. 101, 958 (Lyon)
State v. Jason Hughes, No. 101,959 (Lyon)(consolidated)
State appeal
Julia S. Spainhour, Stephen J. Atherton
[Affirmed; Johnson; March 9, 2012]
  1. Suppression of evidence after Kastigar hearing
State v. Robert Robison, No. 101,515 (Lyon)
Sentencing appeal (Jessica's Law)
Matthew J. Edge
[Affirmed; Davis; January 22, 2010]
  1. Mandatory minimum sentences violate Eighth Amendment
  2. Improper denial of downward departure

December 10--Thursday--a.m.

State v. Nathaniel Hill, No. 94,589 (Montgomery)
Direct appeal; Capital murder (life sentence)
Reid T. Nelson
[Affirmed; Beier; April 15, 2010]
  1. Failure to give lesser of voluntary manslaughter
  2. Batson error
  3. Gruesome photographs
  4. Improper admission of note without proper foundation
  5. Improper finding of competency to stand trial
State v. Andrew Sales, No. 102,578 (Seward)
State appeal
Razmi Tahirkheli
[Dismissed; Rosen; Jan. 29, 2010]
  1. Is expert testimony regarding delayed disclosure of child sex victims subject to Frye test
State v. Christopher Taha, No. 100,768 (Ford)
Direct appeal; First-degree murder
Ryan Eddigner
[Reversed and remanded; Nuss; Sept. 30, 2011]
  1. Improper exclusion of third-party evidence
  2. Failure to give lesser included offense instructions
  3. Improper admission of prior bad act evidence
  4. Prosecutiorial misconduct
State v. Mary Jean Copes, No. 99,403 (Montgomery)
Sentencing appeal (petition for review); DUI
Patrick H. Dunn
[Rv'd/Rmd; Luckert; Feb. 26, 2010]
  1. BIDS fees
  2. Mandatory $2500 fine imposed without findings

December 11--Friday--a.m.

State v. Harold Spencer, No. 101,077 (Shawnee)
State appeal
Carl Folsom, III
[Vac'd/rmd; Beier; March 18, 2011]
  1. What findings are required for downward dispositional departure in Jessica's Law case
  2. Downward durational departure
  3. Downward dispositional departure
  4. Legality of underlying sentence

Saturday, October 17, 2009

Suppression affirmed based on Marx

Wm. Rex Lorson won in State v. Sullivan, No. 101, 850 (Kan. App. Oct. 16, 2009) (unpublished), affirming Judge Hellmer's suppression of evidence in a felony DUI case based on State v. Marx (blogged about here).

At the suppression hearing in the district court, the arresting officer testified that he was following Sullivan's car, and he saw it weave within its lane, almost hit a curb, and cross the lane line one time. This occurred at approximately 1 a.m. but the district court believed Sullivan may have been leaving his place of employment. The court also suggested the "inattentive driving" could be due to cell phone use or adjustment of the radio. The district court found that Sullivan's vehicle may have been the only vehicle on the road and his one-time movement fell short of complying with State v. Ross, 37 Kan. App. 2d 126 (2007) (blogged about here).

Relying on Marx, the COA held, "Clearly, according to the Supreme Court, the State must present more information than an observation of a lane breach in order to use that violation to justify a car stop." Thus, the COA affirmed the district court's decision, holding that that the State failed to meet its burden of proving a violation of K.S.A. 8-1522(a).
[Update: the state did not file a PR and the mandate issued on November 19, 2009.]

Monday, October 12, 2009

Mandatory drug treatment is mandatory

Christina Waugh and Michelle Davis won in State v. Andelt, Nos. 98,699/98,665 (Kan. October 9, 2009), reversing the district court's denial of mandatory drug treatment in each case. Even though the defendant qualified for SB 123 treatment, the district court denied drug treatment in each case because the offenses were committed while the defendant was on parole.

The KSC framed the question as "whether a defendant convicted of a felony drug offense qualifying for a certified drug abuse treatment program under K.S.A. 21-4729 may be sentenced to prison under K.S.A. 21-4603d(f)(1), which authorizes a departure prison sentence where the underlying offense was committed while the defendant is on felony parole." The court held:
We conclude that the plain language of K.S.A. 21-4729 and K.S.A. 21-4603d makes certified drug abuse treatment programs mandatory for individuals who qualify for such programs under K.S.A. 21-4729. A district court does not have discretion to sentence an offender otherwise qualifying for a drug abuse treatment program to imprisonment.
The court adopted the COA's reasoning set forth in State v. Casey, 42 Kan. App. 2d 309, 211 P.3d 847 (2009), blogged about here.

Thus, if a defendant qualifies for SB 123 drug treatment, the sentencing court is required to order drug treatment despite the existence of any special sentencing rule that might make the sentence presumptive imprisonment.

Sunday, October 11, 2009

Four trials is enough for Judge Tatum

Here is an Olathe News article reporting that Scott Toth won a judgment of acquittal from Judge Tatum in State v. Hudson, finally ending a Johnson County assault on a LEO prosecution after three hung juries and a mistrial based on misconduct.

Friday, October 09, 2009

Melendez-Diaz in Kansas

Rachel Pickering won in State v. Laturner, No. 96,086 (Kan. Oct. 9, 2009), obtaining a new trial in a Cherokee County drug prosecution. The appeal involved the constitutionality of K.S.A. 22-3437, which allows the prosecution to admit a lab report in lieu of live testimony. A substantially similar issue was decided this summer by the SCOTUS in Melendez-Diaz v. Massachusetts, No. 07-591 (June 25, 2009), holding that admission of certificates of laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity violated petitioner’s Sixth Amendment right to confront the witnesses.

The KSC applied Melendez-Diaz and held that the certificates used under K.S.A. 22-3437 are testimonial and implicate the Confrontation Clause:
Therefore, we conclude that the KBI laboratory analyst's use of the language required by K.S.A. 53-601 and the form prescribed by K.S.A. 22-3437 along with the certificate's reference to those two statutes indicates the certificate was intended to be and was "functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination'" and was "'"made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."' As such, the KBI laboratory analyst's certificate was testimonial, giving rise to Laturner's rights under the Confrontation Clause. Consequently, absent a showing that the KBI analyst was unavailable to testify at trial and that Laturner had a prior opportunity to cross-examine the analyst, Laturner was entitled to be confronted with the analyst at trial unless that right was waived.

The KSC then had to consider whether the statute was unconstitutional. Melendez-Diaz itself recognized that states might pass legislation that requires pretrial notice of a desire to have the state's witness appear at trial and that waiver could be construed from failure to provide such statutory notice. But K.S.A. 22-3437 requires more than notice--it required an "objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial."

This requirement had been upheld by the KSC in 1999 in State v. Crow (discussed in this previous blog post on this case). The KSC reviewed Crow and its bases and concluded they were no longer viable after Crawford and Melendez-Diaz:
This reasoning, grounded on the Roberts test, was undercut by Crawford. As explained in Melendez-Diaz, it does not matter how reliable the evidence may be; a defendant still has a right to cross-examine the witness.

The KSC then reviewed other jurisdictions' resoloution of the issue and concluded that Crow could not survive:
The purpose of cross-examination, in part, is to explore weaknesses in the reliability of a witness' testimony and, when that witness is a laboratory analyst, in the results of forensic tests. Demanding that a defendant determine the nature of an objection to the reliability of the tests before questioning the witness imposes a difficult burden. Yet, this burden would have to be met to satisfy the Crow requirement that the objection have an indicia of merit, and merely stating an intent to attack reliability of the report would fall short. Moreover, the justification for imposing the requirement that there be an indicia of merit–i.e., the belief that a confrontation right only arose if the hearsay evidence did not have particularized guarantees of trustworthiness–is no longer valid in light of Crawford. We, therefore, abrogate and overrule the holding in Crow and conclude that decision imposes an improper hurdle in the assertion of a defendant's rights under the Confrontation Clause as interpreted in Crawford and subsequent decisions.

Finally, the KSC considered whether the statute could be saved in any part. Untimately, the KSC held that it could sever the portions of K.S.A. 22-3437 that require anything more than a Confrontation Clause objection to invoke the protection of the Confrontation Clause. Because the statute, as applied to Mr. Laturner including the offending language, was unconstitutional, the KSC reversed and remanded for a new trial either excluding the improper hearsay or providing confrontation.

As an aside, the KSC did recognize that the SCOTUS is hearing a case this term related to the reach of notice-and-demand statutes. Here is coverage of that case at the Confrontation Blog. The KSC agreed with Rachel that because of the differences between K.S.A. 22-3437 and the statute at issue in Briscoe, that decision would not impact today's decision in Kansas.

Improper hearsay requires new trial

Carl Folsom won in State v. Kelley, No. No. 100,255 (Kan. App. Oct. 9, 2009), obtaining a new trial in a Sedgwick County rape prosecution. The reversal was based upon the state's admission of hearsay statements on the basis that it was planning to call the declarant, but then failing to call the declarant:

To summarize, in a criminal proceeding, the first step in analyzing whether a statement is admissible hearsay is to determine whether the statement was testimonial. Assuming the statement was testimonial, the declarant must actually testify at the hearing in order for a hearsay statement to be admissible. The declarant's mere presence at the hearing is insufficient for the hearsay statement to be admissible in a criminal proceeding. While it is the better practice to call the declarant as a witness before the hearsay statement is offered into evidence, the failure to do so does not violate the Confrontation Clause as long as the declarant actually testifies at the hearing.

Here, Naomi's statements were made to a Wichita EMCU detective conducting an investigation of the rape allegations K.C.R. had made against Kelley. Therefore, Naomi's statements were made during the course of a police interrogation and an objective witness would reasonably believe that her statements would be available for use at a later trial, making her statements testimonial. Because the statements were testimonial, Kelley's rights under the Confrontation Clause are implicated and the Fisher/Davis rule applies.

Under the Fisher/Davis rule, Naomi needed to testify as a witness, either before or after Mar testified, in order to render her statements to Mar admissible. Because Naomi did not actually testify as a witness at trial, her hearsay statements should not have been admitted into evidence.

The COA went on the reject the state's claim that Mr. Kelley had failed to preserve this issue for appeal and that he acquiesced by cross-examining the witness that did appear in court. The COA went on to hold that the error was not harmless:

Considering K.C.R.'s recantation of her allegations against Kelley, the lack of substantial physical evidence supporting the allegations, and the significance of Naomi's hearsay statements to Mar, we are unable to conclude beyond a reasonable doubt that the inadmissible hearsay testimony had little, if any, likelihood of having changed the result of the trial.

A good case, both on procedure and substance.

[Update: the state did not file a PR and the mandate issued on November 12, 2009.]

Yet another Gant win

Maradeth Frederick won in State v. Keaton, No. 101,480 (Kan. App. Oct. 2, 2009)(unpublished), affirming Judge Fleming's suppression order in a Labette County case. The COA noted that "had been handcuffed and placed in the back of a patrol car by the time of the search" and held this was a straightforward Gant issue and affirmed the suppression order.

[Update: the state did not file a PR and the mandate issued on November 5, 2009.]

Agg habitual sex offender sentences reversed

Shawn Minihan won in State v. Trautloff, No. 100,425 (Kan. Oct. 9, 2009), a Franklin County rape/agg crim sodomy case, remanding one count of sexual exploitation of a child for a new trial and vacating and remanding four life sentences without possibility of parole imposed under the aggravated habitual sex offender provisions of K.S.A. 21-4642(c)(1). On the sentencing issue, the KSC held that although Mr. Trautloff had two prior convictions for listed sex offenses, they were entered on the same day and therefore constituted a single "conviction event." Under the statute, imposition of life without possibility of parole requires two prior conviction events. As a result, the KSC vacated the sentences for rape agg criminal sodomy, and aggravated indecent liberties and remanded for resentencing, although it noted that regardless of what sentencing provision is ultimately used, given his age, Mr. Trautloff is not likely to ever be released from prison.

On the sexual exploitation with a child conviction, the KSC observed that the state charged Mr. Trautloff with sexual exploitation by unlawfully displaying a picture of a child under the age of 14. Although the KSC acknowledged that a person can be convicted of sexual exploitation by many alternative means to "display," (like procuring, selling, providing, selling, transmitting, etc), because the state charged display, it was bound to prove display:
By including the phrase "displayed such picture" in the complaint, the State limited itself to a theory that Trautloff committed only that version of the offense. The wording of a complaint is binding on the State in pursuing its theory before a jury.

But when instructing the jury, the district court included all possible means for conviction under the statute defining sexual exploitation. The KSC held that, because there was extensive evidence of alternative means, it could not conclude that the overbroad instruction was harmless:
The broad instruction allowed the jury to convict Trautloff of displaying or procuring or producing a photograph that included sexually explicit conduct by a child under 14 years of age. It did not compel the jury to find that Trautloff displayed a picture, as alleged in the complaint. As previously described, the evidence of "procuring" or "producing" a photograph was direct and overwhelming, while the evidence that Trautloff "displayed" a photograph or video was minimal and circumstantial. Although Trautloff did not object to the instruction at trial, the instruction was clearly erroneous because we cannot be confident that the jury convicted him only on the basis of the single alternative theory charged and instructed upon. There exists a real possibility that the jury would have rendered a different verdict if the district court had instructed only as to displaying.
So, the KSC remanded for a new trial on sexual exploitation of a child.

Here is coverage from the Lawrence Journal World.

Officers exceeded scope of search for safety purposes

Washburn student intern Sean Whittmore and I won in State v. Vicki Johnson, No. 100,728 (Kan. App. Oct. 9, 2009), reversing a Sedgwick County drug conviction. Officers responded to a report of a possible burglary, but quickly learned the the woman involved was the tenant's girlfriend, who was there with permission. Officers proceeded to search Ms. Johnson, including her purse and a cigarette package in her purse for officer safety
The question for us is whether, once Officer Tucker had seized the cigarette package and thereby removed the package from the defendant's possession, Officer Tucker still had sufficient officer safety concerns under Terry to justify his search of the cigarette package and purse. Decisions from other jurisdictions indicate that "[g]enerally, once a purse is no longer in its owner's possession, a protective search of the purse is not justified pursuant to Terry."
The COA concludes that, in these circumstances, although a safety search was barely justified at its inception, the officer exceeded the scope of a permissible safety search:
Here, by the time of the search and seizure, this defendant had offered Officer Tucker a plausible innocent explanation for her presence at the apartment, which was verified by the landlord. Tucker's concerns were raised when the defendant retrieved the cigarette package after Tucker told the defendant not to reach in her purse. Tucker cited his previous experience with individuals who would hide razors in cigarette packages. However, such individuals were involved in drugs and prostitution, neither of which Tucker connected with this defendant. This leads us to the conclusion Tucker's search of the cigarette package was an impermissible warrantless search.
As a result, the majority reverses and orders suppression.

[Here is coverage at]

[Update: the state filed a PR on November 9, 2009.]

[Further update: the KSC granted the state's PR and Ms. Johnson's cross-PR on July 1, 2010. The case will likely be argued late Fall 2010.]

[Further update: the KSC affirmed the COA on March 2, 2012.  Here is blog coverage.]

Monday, October 05, 2009

Sticking nose inside car constitutes search

Federal public defender Stephen P. McCue won in United States v. Montes-Ramos, No. 07-2027 (10th Cir. Oct. 1, 2009)(unpublished), obtaining suppression in a New Mexico federal possession of marijuana with intent to distribute prosecution. The Tenth Circuit addressed two issues: (1) is it a "search" for an officer to stick his nose just a few inches inside a car to see if he can smell drugs and (2) if so, was it unreasonable in this case. Although the court indicates the answer to the first question is not a simple question, it concludes that "a police officer's intentional act of intruding a vehicle's air space, even if by only a few inches, constitutes a search within the meaning of the Fourth Amendment." On the issue of the reasonableness of the search, the court notes that warrantless searches are presumed to be unreasonable, with exceptions:
If [Officer] Rodriguez reasonably suspected Montes-Ramos was transporting illegal narcotics, he could have detained Montes-Ramos and investigated further. He could have asked if Montes-Ramos was transporting narcotics. He could have asked for consent to search the vehicle. He could have stood at the car door, waiting for the smell of marijuana to waft out the window. He could have called for a drug dog to sniff the exterior of the vehicle. And if his suspicion about drug trafficking caused him to fear for his safety, he could have removed Montes-Ramos from his vehicle, or looked (perhaps even slightly intruded) into the vehicle to determine whether there were weapons within Montes-Ramos' reach. He could not, however, engage in a warrantless sniff search for drugs-even a minimally intrusive one-unless he had probable cause to believe the vehicle contained contraband or evidence of a crime.
Here is coverage at

Cruel and Unusual Punishment

Here is a blog post from Doug Berman at Sentencing Law and Policy reporting that the Iowa Supreme Court had questions under its state constitution about the legality of a 25 year sentence for statutory rape and remanded for findings as applied to that defendant. I thought this was a useful reminder in a sentencing landscape that is varying day by day. Although we have raised a lot of facial challenges to certain sentences in Jessica's Laws cases, don't forget about as applied challenges as well. It may be the only thing you can argue in a case where a sentence is otherwise set by statute.

Thursday, October 01, 2009

Rape acquittal in Reno County

Here is a Hutchinson News article reporting that Sarah Sweet-McKinnon won an acquittal in State v. Bodine, ending a Reno County rape/agg sex battery prosecution.

Wednesday, September 30, 2009

Not guilty of felony theft

My old public defender colleague Tim Frieden (we started within a couple weeks of each other at the PD office), won an acquittal in State v. Corona, ending a felony theft prosecution.

Tuesday, September 29, 2009

Another Gant win

Rick Kittel won in State v. Witmer, 100,646 (Kan. App. Sept. 25, 2009)(unpublished), reversing a Riley County drug conviction. The evidence stemmed from a search incident to arrest. The COA noted that, during the appeal, both Arizona v. Gant and State v. Henning were decided and were controlling:
Witmer had been arrested outside of her car and placed in the back of a patrol car before the search of the car was conducted. As in Gant, Witmer was secured and could not reach the passenger compartment of the car when the search was conducted. As a result, the was an unreasonable search incident to arrest under K.S.A. 22-2501 and the Fourth Amendment to the United States Constitution.
The COA holds that, because of the Fourth Amendment violation, the "evidence that the officer seized is therefore inadmissible."

[Update: the state did not file a PR and the mandate issued on October 29, 2009.]

No waiver of jury trial

Lydia Krebs won in State v. Bowers, No. 100,805 (Kan. App. Sept. 25, 2009), reversing a Miami County DUI conviction. The issue, apparently not contested by the state, was that the record did not include a personal waiver of the right to jury trial:
The district court failed to advise Bowers of his right to a jury trial or to even raise the option. There was no discussion between Bowers and the court regarding the jury trial right he was waiving by proceeding to a bench trial. In fact, Bowers did not speak a word during the status hearing. There is nothing in the record to indicate he was aware of his right to a jury trial or had voluntarily and knowingly waived it.
I wonder why this is published, other than to remind attorneys of the requirement to have a personal waiver on the record (or in writing). I know that some jurisdictions may be a little more informal about this type of thing, but the appellate court is pretty good about enforcing the personal waiver requirement. See the previous case blogged about here.

[Update: the state did not file a PR and the mandate issued on October 29, 2009.]

Friday, September 18, 2009

"As nearly as practicable"

Stephen Atherton and Don Krueger won in consolidated cases in State v. Marx, No. 98,059 and 98,060 (Kan. Sept. 18, 2009) affirming Judge Larsons suppression order in this case. There were two issues: whether a stop was valid as a safety stop or, alternatively, whether the officer had reasonable suspicision of a traffic violation justifying the stop.

The KSC fairly quickly disposed of the state's argument that the stop was for safety considerations. The officer had observed a hubcap come off of motorhome. But the KSC agreed with the COA opinion that the hubcap was not a particular safety issue and was merely a pretext:
More importantly, the Court of Appeals' assessment of the level of public danger posed by the Marxes' mechanical problem was a secondary consideration. The opinion's principal holding is that "the primary motivation of a valid public safety stop must be for community caretaking purposes." Although the holding in Whren v. United States, 517 U.S. 806, 813 (1996), requires us to ignore a law enforcement officer's subjective motivation for stopping a vehicle for a traffic violation, permitting the public safety rationale to serve as a pretext for an investigative detention runs the risk of emasculating our Fourth Amendment protections.

As the Court of Appeals noted, the district court specifically found that Deputy Doudican's stop was not primarily motivated by community caretaking concerns. That finding is supported by substantial competent evidence, not the least of which was the deputy's admission that the real reason for the stop was the perceived traffic infraction. Moreover, a community caretaking motivation is belied by the deputy's actions in following the motor home for approximately a mile in the hope of observing a traffic violation rather than immediately addressing the alleged endangerment to the public.
The more involved analysis related to whether the officer's observation of the motor home cross the fog line, overcorrect, and cross the centerline was sufficient to show a violation of K.S.A. 8-1522(a): "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."

The KSC did a pretty thorough analysis, noting that jurisdictions have split widely on interpretation of this uniform traffic law. In the end, the Court held the following:
we interpret K.S.A. 8-1522(a) as establishing two separate rules of the road. The first requires a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes. That rule is temporarily suspended when it becomes impracticable to stay within the lane markers and when the driver is properly effecting a lane change. Proof that driving outside the lane markers created no safety hazard is not a defense to the single lane rule. The second rule provides that before a driver may change lanes or move from the current lane of travel to another location, he or she must ascertain that the movement can be made with safety. A traffic infraction occurs under K.S.A. 8-1522(a) when either rule of the road is violated.
Applying this interpretation, the KSC noted that the first part of this does not create a strict liability offense:
The express language employed–"as nearly as practicable"–contradicts the notion that any and all intrusions upon the marker lines of the chosen travel lane constitute a violation. As indicated in both Ross [blogged about here] and Marx, one can conjure up a number of scenarios where maintaining the integrity of the lane dividing lines is impracticable, e.g., weather conditions or obstacles in the roadway. However, the statute even dilutes the practicability standard. It does not say "when practicable" a vehicle will be driven entirely within a single lane. It only requires compliance with the single lane rule as nearly as practicable, i.e., compliance that is close to that which is feasible. That statutory language tells us that a violation of K.S.A. 8-1522(a) requires more than an incidental and minimal lane breach.
The KSC held that the COA had improperly placed the burden of proving the lawfulness of the driving on the defendant. Instead, after properly placing the burden on the state, the KSC upheld the district court's negative finding:
As the district court articulated at the suppression hearing, the defendant's vehicle was not weaving back and forth time and time again, but rather the deputy only observed one instance where the motor home did not maintain a single lane. Further, the court found that no testimony was offered as to how far the motor home crossed either the fog line or the centerline. The court noted that the deputy had shared no information about the traffic conditions. We would also observe that the deputy gave no testimony from which the court could even infer that it was practicable to maintain a single lane. Besides relating the path the motor home traveled, the only thing the deputy related was that Desiree told him the motor home was "hard to drive." Accordingly, from the record before us, we determine that the State failed to carry its burden of establishing that Deputy Doudican had a reasonable suspicion that the motor home was violating the provisions of K.S.A. 8-1522(a).
It will be interesting to see if this substantially curtails this pretextual basis for searching, as predicted by the concurring opinion. As a COA appeals panel noted, cars do not run on fixed rails--every now and then, every driver touches or slightly crosses the fog line.

Here is coverage on

Here is local coverage from the Emporia Gazette.

Downward duration departure upheld

Janine Cox won in State v. Henderson, No. 100,885 (Kan. App. Sept. 18, 2009)(unpublished), affirming Judge Dowd's downward durational departure sentence in a Shawnee County rape prosecution. The state claimed that Judge Dowd failed to state on the record the substantial and compelling reasons for its departure. The COA held that the district court adequately recorded his reasons:
In granting the departure, the district court adopted the reasons set forth in Henderson's motion. When pressed to identify the specific grounds for the departure sentence, the district court clarified that it was relying on the "three factors in the motion." The three departure factors where then set forth verbatim in the journal entry.

Here, as opposed to the Whitesell case [where the KSC found the district court's announcement insufficient to suppoort a departure sentence], the district court did more than make a vague reference to the departure motion in granting the departure sentence. Granted, the district court did not read into the record the specific departure factors relied upon by the court. However, the record is abundantly clear as to why the district court granted the departure and the three specific factors the district court relied upon to justify the reduced sentence.
The COA went on to hold that the three factors were sufficient to justify the departure sentence and, therefore, affirmed.

[Update: the state did not file a PR and the mandate issued on October 23, 2009.]

Thursday, September 10, 2009

October 2009 KSC docket

Here are the criminal cases on the KSC docket for October 26-30, 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.

October 26--Monday--a.m.

State v. Jose Huerta-Alvarez, No. 100,402 (Sedgwick)
Direct appeal; Agg indecent liberties
Heather Cessna
[Aff'd/Vacated; Rosen; Oct. 1, 2010]
  1. Failure to charge and instruct on age of defendant
  2. Sufficiency of evidence
  3. Prosecutorial misconduct
State v. Joe Moondragon, No. 100,510 (Sedgwick)
Sentencing appeal
Roger L. Falk
[Affirmed; Luckert; Dec. 4, 2009]
  1. Jessica's Law is cruel and/or unusual punishment
  2. Failure to grant downward departure
State v. Merado Garza, Jr., No. 100,359 (Sedgwick)
Direct appeal; Rape (Jessica's Law)
Michelle Davis
[Affirmed; Biles; July 30, 2010]
  1. Failure to appoint substitute counsel
  2. Refusal to admit evidence relevant to defense
  3. Failure to charge and instruct on age of defendant

October 27--Tuesday--a.m.

State v. William Sheldon, No. 98,160 (Cowley)
Direct appeal (petition for review); Making False Information/Obstruction
Jennifer Passiglia
[Reversed; Beier; May 21, 2010]
  1. General/specific charge (regulation of pawnbrokers)
  2. Sufficiency of evidence
  3. Failure to give unanimity instruction
  4. Prosecutorial misconduct
State v. Stephen McGinnis, No. 99,217 (Atchison)
Direct appeal (petition for review); DUI
Ryan Eddinger
[Affirmed; Nuss; June 4, 2010]
  1. Improper seizure without reasonable suspicion

October 28--Wednesday--a.m.

State v. Charles Hollingsworth, III, No. 99,961 (Shawnee)
Direct appeal; First degree murder
Nancy Ogle
[Affirmed; Nuss; Dec. 11, 2009]
  1. Denial of suppression of statements
  2. Improper admission of prior bad act evidence
State v. Paul Finch, No. 101,136 (Douglas)
State appeal (question reserved)
Janine A. Cox
[Appeal sustained; Beier; Jan. 7, 2011]
  1. Whether intoxilyzer reading is sufficient to sustain DUI conviction

October 29--Thursday--a.m.

State v. David Pressley, No. 98,823 (Sedgwick)
Direct appeal (petition for review); Aggravated robbery
Randall L. Hodgkinson
[Affirmed; Biles; January 22, 2010]
  1. Speedy Trial violation for delay in sentencing
State v. Carlos Jackson, No. 100,807 (Douglas)
Sentencing appeal (transfer)
Christina M. Waugh
[Vacated in part; Rosen; August 20, 2010]
  1. Improper classification of juvenile adjudication as conviction for lifetime registration
  2. Improper modification of sentence after pronounced in court
State v. Chad McMullen, No. 100,313 (Shawnee)
Direct appeal; Agg indecent liberties
Michael E. Francis
[Affirmed; Johnson; Dec. 18, 2009]
  1. Denial of suppression of statements
  2. Improper admission of safe talk tape
  3. Improper imposition of consecutive life sentences

October 30--Friday--a.m.

State v. Deanna Gilley, No. 99,156 (Reno)
State v. Mary Arnett, No. 99,508 (Reno)
State appeals (criminal history)
Janine A. Cox
[Affirmed; Davis; January 22, 2010]
  1. Whether prior forgery convictions should be included in criminal history for aggravated forgery conviction

Wednesday, September 09, 2009

Couple of Gant GVRs (sort of)

Similar to the practice in the SCOTUS, the KSC granted a couple of petitions for review last week on Gant issues and summarily remanded to the district court for proceedings consistent with Arizona v. Gant. In both cases, the COA had held that the amended K.S.A. 22-2501 authorized broad searches outside the scope of the arrest. After Gant (blogged about here) and Henning (blogged about here), that no longer is good law.

Here is the order in State v. Jones, No. 99,216 (Kan. 2009) and State v. Craig, No. 99,527 (Kan. 2009).

BTW, for those who are really interested in the minutae of appellate procedure (that's you Paige), I thought this was an interesting disposition. Remanded to the district court. Rule 8.03(h)(2), cited in the Craig order provides authority to "remand the appeal to the Court of Appeals for reconsideration in light of authority identified in the Supreme Court's order." It doesn't say anything about the district court. And, as a result, there really isn't an appellate disposition (i.e. affirmed, reversed, vacated, etc.). I wonder how the district court does anything in the case if the lower court judgment wasn't vacated. (I think that's how SCOTUS orders are usually worded right? Granted, vacated, and remanded?)

Tuesday, September 08, 2009

A Gant reversal

Meryl Carver-Allmond won in State v. Wear, No. 100,442 (Kan. App. Sept. 4, 2009)(unpublished), reversing a Harvey County drug conviction. The state had primarily argued that the search incident to arrest for driving with a suspended license was lawful under Belton, but as the COA explained that rationale doesn't survive Gant, blogged about here. The COA also rejected an alternative claim that this might have been a valid inventory search:
[Inventory searches] are deemed reasonable--even without a warrant--but only to serve narrow purposes: protecting an owner's property while it's in police custody and the police from claims of lost or stolen property or from hazardous objects contained within a criminal defendant's personal property. Searching Wear's luggage didn't serve any of those purposes because there was no plan (and no need) to take her personal property into police custody.
As a result, the COA reverses the conviction.

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

Friday, September 04, 2009

The answer is "Yes!"

The question in the title of my blog post on September 19, 2006 was "Will Layton finally get relief?" The answer according to State v. Layton, No. 98,275 (Kan. June 26, 2009)(unpublished) is yes. Michael Whalen was Mr. Layton's attorney in this latest proceeding.

You can read about the history of this case in the previous blog post here. In the per curiam decision, the KSC note that the history of the case has been "long and arduous, even dramatically tortuous." Suffice it to say that a first COA decision in Mr. Layton's case spawned the identical offense issue that later resulted in, as described by the KSC, the "McAdam gravy train." (According to Wikipedia, "'Gravy train' is an idiomatic expression that is used to refer to any lucrative endeavor, generally with unearned benefits.") In fact, the petitions for review in both Layton and McAdam were filed on the same day and the petitions for review were granted on the same day in July 2003.

After reviewing the case history in Layton (including clarifying my apparently incorrect testimony about the specific issues the ADO raised in the COA in Mr. Layton's case), in conjunction with the time line of other then-pending McAdam cases, the KSC rejected claims that the ADO was ineffective and also rejected Mr. Layton's claim that the higher sentence constituted a "manifest injustice."

Instead, the KSC applied doctrines of equity and fundamental fairness:
were it not for the Court of Appeals' choice of language in its first opinion in Layton's direct appeal, the spark of the identical offense theory may never have ignited. Layton is the only criminal defendant who can make such a claim.
As a result, the KSC remanded for resentencing pursuant to McAdam. I suppose the opinion is unpublished because of the unique circumstances--because Mr. Layton is the only person in this situation, the case really has no precedential value, but only applies to him.

So anyway, according to the Department of Corrections web site, Mr. Layton was placed on post-release on August 3, 2009, a little more than four years after Mr. McAdam was released. So the answer is yes, finally.

Recent cert petition filed

We recently filed a cert petition in Snow v. Kansas on the issue of whether non-statutory "catch all" aggravating factors (used for an upward durational departure) satisfy the Due Process Clause.

We filed a similar petition last year in Green v. Kansas, blogged about here. The state's main response at that time was that there was no split of authority on the issue (because no other jurisdictions had reached the merits of such an issue). Our petition was denied last year after the SCOTUS ordered the state's response.

This last summer, the Arizona Supreme Court reached the issue and held that aggravating a sentence based on a non-statutory "catch all" aggravator was "patently" vague. See State v. Schmidt, 208 P.3d 214 (Ariz. June 3, 2009). So, now there's a clear split of authority.

If you have any cases where the prosecution is relying on non-statutory aggravating factors in an upward durational departure case, be sure to object!

[Update: the SCOTUS denied the cert petition on November 2, 2009. But any time you have a Kansas case where the state seeks use of non-statutory aggravating factors, be sure to enter a Due Process objection to preserve the issue. There are better grounds for asking the KSC to look at this case or there may be further SCOTUS litigation on this issue in the near future.]

Thursday, September 03, 2009

Couple of acquittals

Here is a Hutch News article reporting that Kelly Driscoll and Lee Timan got an acquittal in State v. Davis, ending a Reno County rape prosecution.

Here is an Emporia Gazette article reporting that Trevor Riddle got an acquittal in State v. Petitt, ending a Lyon County vehicular homicide prosecution.

It's a little troubling that the prosecutor indicates that he hopes to use this case to effect legislative changes making accidents like this criminal cases.

Tuesday, September 01, 2009

September 2009 KSC docket

Here are the criminal cases on the KSC docket for September 14-18, 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.

September 14--Monday--a.m.

State v. Gayl Northcutt, No. 99,600 (Wyandotte)
Direct appeal; First-degree murder/conspiracy
Meryl Carver-Allmond
[Affirmed; Luckert; Feb. 26, 2010]
  1. Insufficient evidence to support conspiracy conviction
  2. Failure to give voluntary manslaughter instruction
State v. Billy McCaslin, No. 99,628 (Sedgwick)
Direct appeal; First-degree murder/rape
Janine Cox
[Affirmed; Nuss; Jan. 21, 2011]
  1. Confrontation Clause violation
  2. Insufficient evidence
  3. Improper admission of video tape
  4. Gruesome photographs
  5. Prosecutorial misconduct
  6. Improper imposition of hard-50
State v. Randy Andelt, No. 98,655/98,699 (Washington)
Sentencing appeal
Christina M. Waugh
[Reversed and remanded; Davis; Oct. 9, 2009]
  1. Failure to impose probation and drug treatment under statute
State v. Jerry Horn, No. 97,872 (Johnson)
Sentencing appeal (petition for review)
Jessica J. Travis
[Reversed; Johnson; August 20, 2010]

  1. Improperly impanelling jury for upward departure after plea
  2. Fiduciary relationship as aggravating factor is vague
  3. Fiduciary relationship not a proper aggravating factor
  4. Improper admission of evidence during upward departure hearing
  5. Improper admission of videotape of child
  6. Improper jury instructions
  7. Sufficiency of evidence of aggravating factor
  8. Failure to allow admission of mitigating evidence to jury
  9. Evidence of fiduciary relationship not substantial and compelling

September 15--Tuesday--a.m.

State v. Israel Reyna, No. 100,000 (Saline)
Direct appeal; Agg Indecent Liberties (Jessica's Law)
Rachel L. Pickering
[Affirmed; Rosen; June 11, 2010]
  1. Insufficient evidence to support convictions
  2. Failure to charge and instruct on age of defendant
  3. Improper admission of therapist testimony
  4. Improper limitation of defense voir dire
State v. Kristie Urban, No. 98,856 (Johnson)
State appeal (petition for review)
Janine Cox
[Affirmed; Beier; Sept. 24, 2010]
  1. Sufficiency of evidence for agg escape from custody charge
State v. Rodney Hendrix, No. 97,323 (Johnson)
Direct appeal (petition for review); Criminal threat/assault
Matthew J. Edge
[Affirmed; Nuss; October 30, 2009]
  1. Failure to give self-defense instruction
State v. Miguel Martinez, No. 100,175 (Wyandotte)
Direct appeal; Attempted rape (Jessica's Law)
Korey A. Kaul
[Affirmed; Biles; July 30, 2010]
  1. Improper exclusion of prior allegations of abuse
  2. Improper instruction on attempt
  3. Insufficient evidence of attempt
  4. Improper admission of videotape interview of child
  5. Prosecutorial misconduct
  6. Failure to instruct on age of defendant

September 16--Wednesday--a.m.

State v. Dorian Richardson, No. 98,572 (Wyandotte)
Direct appeal (petition for review); Fleeing and eluding
Rick Kittel
[Reversed and remanded; Rosen; February 19, 2010]
  1. Failure to instruct and define predicate moving violations
  2. Failure to limit jury's consideration of certain moving violations
  3. Failure to instruct on moving violations as lesser included offenses
  4. Convictions for moving violations are multiplicitous
  5. Potential reliance on acts not charged in complaint
  6. Failure to appoint new counsel

September 17--Thursday--a.m.

State v. Andrew Ellmaker, No. 99,110 (Johnson)
Direct appeal; First-degree murder
Carl Folsom III
[Affirmed; Luckert; Dec. 4, 2009]
  1. Improper definition of intentional and premeditated murder
  2. Improper Allen instruction
  3. No waiver of jury determination of adult certification
  4. Failure to give notice of hard-50 aggravating factor
  5. Improper adult certification

September 18-Friday--a.m.

State v. Jason Sandberg, No. 100,037 (Shawnee)
Direct appeal (transfer); Electronic solicitation
Shawn E. Minihan
[Affirmed; Luckert; July 23, 2010]
  1. Severity level classification of electronic solicitation
State v. Raul Magallanez, No. 99,694 (Lyon)
Direct appeal; Rape/Agg Crim Sodomy/Agg Indecent Liberties
Carl Folsom III
[Reversed and remanded; Beier; July 16, 2010]

  1. Improper amendment of complaint
  2. Prosectorial misconduct
  3. Improper admission of prior bad acts
  4. Failure to instruct on element of crime (rape)
  5. Improper exclusion of defense evidence regarding veracity of witness
  6. Improper admission of SRS worker testimony
  7. Agg indecent liberties with a child as lesser of rape
  8. Sufficiency of evidence
  9. Improper Allen type instruction

Monday, August 31, 2009

No basis for stop or frisk

Rick Kittel and KU Defender Project student Thomas Knutzen won in State v. Dean, No. 100,120 (Aug. 28, 2009), reversing a Sedgwick County drug conviction. The COA agreed with Mr. Dean that the officer did not have an objectively reasonable basis to detain:
Applying an objective standard, the facts available to Officer Goodman at the moment of the seizure established: (1) Goodman had received a report of an unidentified individual selling crack from an unidentified vehicle in front of a residence where Dean and others lived; (2) no vehicles were parked in front of the residence when Goodman arrived to investigate; (3) Goodman was only generally familiar with the residence and its occupants, including the defendant; (4) during a consensual search of the home, Goodman observed no illegal activity; and (5) when Goodman saw Dean in the kitchen, he thought Dean appeared nervous. Simply stated, these facts do not establish objectively reasonable suspicion that Dean was engaged in illegal drug activity.
The COA made a similar analysis and held that, even if the stop was proper, the officer did not have objectively reasonable suspicion that Mr. Dean was dangerous sufficient to allow a frisk. As a result, the COA held suppression should have been granted.

[Update: the state did not file a PR and the mandate issued on October 1, 2009.]

Can't convict of a crime not charged

Meryl Carver-Allmond won in State v. Betts, No. 100,887 (Aug. 28, 2009)(unpublished), reversing two counts of sale and two counts of unlawful use of a communication facility in a Seward County drug case. The state unambiguously charged two counts of possession with intent to sell.
But for reasons that are unexplained in the record on appeal, the district court changed its description and said sales of cocaine were the charged crimes. We find no motion to amend charges in the record, nor do we find any order modifying the original charges. Then, without objection, the district court instructed the jury on the crimes of "unlawfully selling cocaine."
The COA rejected the state's claim that this was merely instructional error but held that failure to charge a particular crime leaves the district court without jurisdiction to convict of that particular crime.

The COA also held that because Ms. Betts was charged with unlawful use of a communication facility to facilitate a drug offense and because the state failed to prove a drug offense, those convictions also had to be reversed. Two counts of no tax stamp were not challenged on appeal.

[Update: the state did not file a PR and the mandate issued on October 1, 2009.]

Tuesday, August 25, 2009

Restorative justice

Here is a Salina Journal article reporting that criminal threat charges were dismissed after the defendant and victim met and resolved the matter, apparently to the satisfaction of the victims. I just thought this might be noteworthy because you don't see much press about these kinds of dispositions. It made me curious about whether this type of disposition is happening all the time or whether it's pretty rare?

Friday, August 21, 2009

Improper impeachment with prior conviction not harmless

Rachel Pickering won in State v. Hoskins, No. 99,802 (Kan. App. Aug. 14, 2009)(unpublished), obtaining a new trial in a Montgomery County aggravated intimidation of a witness or victim prosecution. The main issue in the case was the admission of a prior forgery conviction for impeachment purposes. The district court had admitted the evidence after Mr. Hoskins testified, reasoning that it was a "he said/she said" type of case. On appeal, the state conceded that admission of the prior forgery conviction was error, but argued that it was harmless. The COA agreed that, simply because a defendant testifies, he or she does not put his or her credibility at issue and, therefore, the district court erred. The COA went on to conduct a lengthy harmless error analysis:
In this case, the State's key witness was the alleged victim, Dunn. The only other eyewitness was Officer Whittet, and he did not hear the conversation between Dunn and Hoskins. The last piece of the puzzle was the 911 call placed by Dunn. Otherwise, there was no physical evidence; the entire case turned on whom the jury believed more, Dunn or Hoskins. When this type of credibility determination is at stake, Kansas courts are more hesitant to find that erroneous admissions of evidence constitue harmless error. Considering the gravity that witness credibility played in this trial, we find the State's evidence is not so "direct and overwhelming" that we could comfortably conclude the evidence of Hoskin's prior forgery conviction did not affect the result of his trial.
So, the COA reverses. I would just note that the description that "the entire case turned on whom the jury believed more, Dunn or Hoskins" is not quite right. In a criminal case like this, it really should be "did the jury believe Dunn beyond a reasonable doubt." A jury could believe Dunn more, but not beyond a reasonable doubt. Maybe it's a small point, but one I have been thinking about lately.

[Update: the state did not file a PR and the mandate issued on September 17, 2009.]

Thursday, August 20, 2009

Acquittal in Douglas County rape prosecution

Sarah Swain won an acquittal today in a Douglas County rape prosecution. The jury deliberated for over four hours and returned a not guilty verdict on a charge of rape and the lesser offense of attempted rape. Here is an article on the case from the LJWorld.

Friday, August 14, 2009

Alford plea stipulation to factual basis does not satisfy Apprendi requirements

Christina Waugh won in State v. Case, No. 98,077 (Kan. August 7, 2009), reversing a 60-month term of postrelease supervision that was based on the district court’s finding that the defendant’s conviction for aggravated endangering of a child was sexually motivated.

The KSC summed up the case as follows:
This case requires us to determine the effect, if any, on the defendant's guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970), when he "stipulate[d] to the factual basis provided by the State." A panel of the Court of Appeals held that Christopher Case stipulated to the facts, which eliminated the requirement that they be proven to a jury beyond a reasonable doubt before they could be used to increase his sentence beyond the prescribed statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Because of these stipulated facts, the panel held that the district court was then allowed to find that the crime was sexually motivated. This determination ultimately allowed the district court to increase the length of the postrelease supervision component of Case's sentence from the prescribed 12 months to 60 months. We granted Case's petition for review under K.S.A. 60-2101(b). The State filed no cross-petition.

Case essentially argues that he merely stipulated that the State's facts presented to the court at the plea hearing provided a factual basis for his Alford plea. He did not stipulate or agree that they were true, because this type of admission of guilt is contrary to the fundamental nature of an Alford plea. Case contends that because he did not admit that his crime was sexually motivated, the district court's finding to this effect was improper and resulted in an increased sentence in violation of Apprendi.

We agree with Case.

In concluding that the finding that the offense was "sexually motivated" violated Apprendi, the KSC relied on its previous opinion in State v. Allen, 283 Kan. 372, 153 P.3d 488 (2007) (sentence as "persistent sex offender" based on district court's finding that prior adjudication was sexually motivated violated right to jury trial stated in Apprendi), blogged about here.

Thursday, August 13, 2009

Juvenile jury trial pays off

Carl Maughan won an acquittal in the first Sedgwick County jury trial in a juvenile case since the KSC's decision in In re L.M. (holding that juveniles have state constitutional right to a jury trial). According to this Wichita Eagle article, it took the jury only 40 minutes to acquit the defendant of burglary and theft.

Thursday, August 06, 2009

Officers exceeded scope of pat down

Shelley Kurt Bock won in State v. Hoadley, No. 101,205 (Kan. App. July 31, 2009)(unpublished), affirming Judge Martin's suppression order in a Douglas County drug prosecution. The COA held that the officers obtained consent to search during a voluntary encounter, thus making the encounter itself lawful. But the COA held that a prior KSC was on point and supported the district court's suppression order:

The analysis in [State v. Lee, 283 Kan. 771, 156 P.3d 1284 (2007)] is directly applicable to our case. There, officers received a report that a suspicious man was walking through a public park. Two uniformed officers investigated and found Lee, who matched the description from the report, and asked to talk to him. Lee agreed but continued to search the ground for a wallet he said he had lost. The officers asked for permission to conduct a pat-down search for weapons, and Lee consented.

The officer patted Lee down and removed a rolled-up baggie containing methamphetamine from Lee's pocket. He was charged with possession and filed a suppression motion arguing unlawful seizure during an investigatory detention.

The Kansas Supreme Court disagreed with the detention argument, holding a reasonable person in Lee's position would have felt free to disregard the officer's request and, consequently, the patdown did not violate Lee's Fourth Amendment rights because Lee voluntarily consented to the patdown. But, our Supreme Court affirmed Lee's motion to suppress, finding the pocket search exceeded the scope of the patdown for weapons and the plain feel exception did not apply in this case.

While the evidence at the suppression hearing was conflicted, the district court by its decision in this case found the State failed in its burden of proof to show that Hoadley's pocket was open and that the baggie was in plain view.

The COA held that Lee was "directly applicable" and affirmed the suppression order.

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