Saturday, March 28, 2009

Not guilty in high profile abortion case

Here is a Wichita Eagle article reporting that Dan Monnat, et al. won acquittals in several misdemeanor cases in State v. Tiller, ending a Sedgwick County prosecution for improperly performing abortions without going through the proper procedures.

Thursday, March 26, 2009

Proportionality Challenge to Lifetime Postrelease

Recently, the ADO has challenged the constitutionality of the lifetime postrelease supervision term for “sexually violent offenses” mandated by K.S.A. 22-3717(d)(1)(G). The argument is that the lifetime postrelease is a life sentence, and under the facts of the case, may be disproportionate punishment and thus cruel and unusual punishment under Section 9 of the Kansas Constitution Bill of Rights and/or the Eighth Amendment of the U.S. Constitution. The KSC has recently emphasized that this type of argument must be litigated in the district court in order to be raised on appeal.

Often, a very sympathetic defendant will get a downward durational departure for a “sexually violent crime” but then be ordered to lifetime postrelease supervision under K.S.A. 22-3717(d)(1)(G). This person will forever be under the thumb of the State. Even if the offense was committed when the defendant was a teenager, they may never again own a firearm (a constitutional right), may never retire - unless approved by their parole officer (requirement to maintain employment), may never enjoy a glass of champagne at their daughter’s wedding, may never again go on vacation without prior approval, and must forever be subject to searches by their parole officer. If the defendant had simply intentionally murdered someone, they would only be required to comply with these postrelease conditions for 36 months.

The proportionality argument is that this lifetime postrelease sentence is unconstitutional under the three factors set forth in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). The first Freeman factor is based on the nature of the offense and character of the offender. Again, if the defendant has already received a downward durational departure, the circumstances of the crime and background of the defendant are probably better than the typical case. The second factor is whether more serious crimes are punished less severely. Once again, intentional second-degree murder of the same victim would get someone only 36 months postrelease. The third factor compares the punishment with the punishments in other states for the same conduct. None of these factors are dispositive.

In order to preserve this issue for appeal, the Freeman analysis should be litigated thoroughly in the district court, and the court should make specific factual findings regarding the factors.

Monday, March 23, 2009

No concern for welfare

In State v. McPherson, No. 100,072 (Kan. App. March 13, 2009), the COA affirmed Judge Larson's suppression order in a Lyon County DUI prosecution. The trooper initially approached Mr. McPherson under the "community caretaking" function:
[The trooper] passed McPherson and turned around to check on the occupants of the two vehicles. He testified that his “initial purpose for turning around was the fact that they were parked in the roadway and I wanted to check on their welfare to see if they needed any help. It appeared that they might be broke down.” However, by the time [the trooper] turned around he saw McPherson backing his vehicle into the parking lot of an apartment complex.
The COA concluded that the officer initially had a basis for turning around but that any concern quickly dissipated:
The officer observed the defendant stopped in the middle of a road with another car behind him and turned around to see that everything was okay. When the officer turned around the defendant was backing into a parking lot and safely backed into a parking spot. Further, the officer knew that his initial concerns were unjustified and nothing about the defendant backing into the parking spot indicated a new safety concern or that any law were broken.
As the COA indicates, public safety stops should receive "careful scrutiny."

[Update: the state did not file a PR and the mandate issued on April 16, 2009]

Acquittal in 17 minutes.

I received a report that Lee Timan in the Reno County Public Defender Office recently won an acquittal in State v. Teter, ending a Reno County failure to register prosecution. Apparently, the verdict only took the jury about 17 minutes. Nice.

Wednesday, March 18, 2009

State didn't prove old burglary conviction was of a dwelling

Washburn student intern Stacey Schlimmer and I won in State v. Roose, No. 98,798 (Kan. App. March 13, 2009), reversing a Shawnee County criminal possession of a firearm conviction. The predicate offense was a 1978 burglary conviction. The COA held that the state had failed to prove that the building involved in the prior burglary was a "dwelling" as contemplated under today's burglary statute. If it wasn't a dwelling, it wasn't a person felony. And if it wasn't a person felony, Mr. Roose wasn't prohibited from possession a firearm. As a result, the COA reversed the conviction.

Interestingly, Judge Greene concurs and would have gone even further and held that because there was "no such animal" as a person felony before the guidelines, no pre-guidelines burglary conviction should be able to be counted as a person felony as an element of a crime. (He distinguishes the criminal history situation--which is covered by statute--from the situation where the state has to prove the element beyond a reasonable doubt).

[Update: the state did not file a PR and the mandate issued on April 16, 2009.]

Saturday, March 14, 2009

A tool box and a four-wheeler is not probable cause to search

Alex McCauley won in State v. Rodriguez, Case No. 100,626 (March 13, 2009)(unpublished), affirming Judge Bornholdt's suppression of evidence in a prosecution for possession of marijuana with intent to sell and failure to have a tax stamp. The case involved the stop of a pickup truck on I-35, after the officer first noticed the “suspicious” truck in the parking lot of a nearby La Quinta Inn.

On appeal, the state claimed that the officer had probable cause to search the pickup truck after the traffic stop based upon: (1) the presence of a secured wooden box in the bed of the truck, (2) discrepancies in statements made by Mr. Rodriguez when the officer first noticed the truck (and confronted Rodriguez in the parking lot of the La Quinta Inn), (3) traveling from known drug source cities, and (4) Bilbao-Martinez's (the driver’s) nervousness. The state did not brief other factors raised before the district court. The state also did not challenge Judge Bornholdt’s finding that the consent to search, which was obtained from the driver, who did not speak English, was invalid.

The COA held that there was substantial competent evidence to support the district court’s suppression of the evidence. The COA stated that having a secured box in the bed of a pickup truck does not give probable cause to search. The court stressed that the wooden box was not a “hidden compartment,” but rather, it was obvious to anyone who viewed the truck. Similarly, the COA stated that Mr. Rodriguez’s statements were not inconsistent. The COA also noted that traveling from a known drug source city is not enough to give probable cause to search. The court finally stated that the nervousness of the driver was not even sufficient to give reasonable suspicion of criminal activity.

[Update: the state filed a PR on April 13, 2009.]

[Further update: the KSC denied the state's PR and the mandate issued on January 11, 2010.}

Thursday, March 12, 2009

Mandatory minimum fines could be in dispute

For anyone that has a client that is subject to a “mandatory minimum fine”- which should be about everyone, the Kansas Supreme Court has granted my petition for review in State v. Raschke, (Case No. 98861) that asks the court to overrule State v. Shuster, 17 Kan. App. 2d 8, 8-9, 829 P.2d 925 (1992) (sentencing court only has to consider defendant’s ability to pay a fine when the fine is discretionary or exceeds the statutory minimum).

The issue is pretty simple. Under K.S.A. 21-4607(3), the court has to consider the defendant’s ability to pay any fine, not just those that are discretionary. So, any time a defendant is subject to a minimum fine (I’m thinking DUI cases especially), defense attorneys should be asking the court to consider the defendant’s ability to pay the fine.

[Update- On June 3, 2009, the KSC granted review of the DUI fine issue in State v. Copes, Case No. 99,403.]

Friday, March 06, 2009

You can't be un-arraigned

Washburn student intern Julia Mowers and I won in State v. Douglas, No. 99,651 (Kan. App. March 6, 2009)(unpublished), affirming Judge Miller's dismissal order on statutory speedy trial grounds. The claim arose after the parties had negotiated a plea agreement and Mr. Douglas had entered a no contest plea, but then the judge realized he had a conflict and allowed Mr. Douglas to withdraw his plea to go before another judge. The next judge also had a conflict and sent the case to yet another judge. And then the case fell though the cracks. For the next 10 months. When the case finally got back on the radar screen, Mr. Douglas filed a motion to dismiss and Judge Miller granted it.

The state's attack was two-fold: (1) when Mr. Douglas withdrew his appeal, he was no longer arraigned and (2) the time should be counted against Mr. Douglas because he asked for another judge. The COA reviewed the two statutes defining arraingment and noted that neither required a completed plea-only that the defendant be called to enter a plea. As a result, the withdrawal of a plea did not in some way invalidate the original arraignment. On the second point, the COA held that, even if some of the time should be counted against Mr. Douglas (a point not entirely clear to the COA), only a reasonable amount of time should be so counted. Even if you count the time between arraignment and the first resetting against Mr. Douglas and then count another month against Mr. Douglas (a reasonable time for another resetting), the state still wasn't even close to the 180 day limit. So, as a result, the COA affirmed the dismissal.

[Update: the state did not file a PR and the mandate issued on April 9, 2009.]

Statutory speedy trial win

Michael Holland II won in State v. Renteria, No. 99,309 (Kan. App. Feb. 27, 2009)(unpublished), affirming Judge Rome's dismissal of a Reno County DUI prosecution on statutory speedy trial grounds. This case involved the dismissal of an initial complaint after 105 days had passed:
On appeal, the State asserts that on April 11, 2007, long after Renteria's speedy trial rights had run, he filed a waiver of his speedy trial rights and that this waiver precludes his speedy trial argument here. However, we are precluded from considering this assertion as we find no evidence in the record that the State raised the waiver issue to the district court or that the significance, if any, of the waiver was addressed below.

The State also suggests it did not file the charge in this case to “manipulate the speedy trial requirement.” However, the State fails to explain the significance of this assertion, nor does it cite any authority to indicate that the State's intent in refiling the charge is a factor to be considered in speedy trial calculations. Moreover, even if we did not add the 105 days in Case No. 05 CR 967 to the speedy trial clock in this case, we would nevertheless be required to find a violation of Renteria's speedy trial rights based upon the delay in this case alone.

[Update: the state did not file a PR and the mandate issued on April 2, 2009].

Thursday, March 05, 2009

Four days of testimony; 30 minutes to acquittal

Here is a Salina Journal article reporting that a jury acquitted the defendant in State v. Jones, ending a Saline County agg battery prosecution. The excerpt doesn't specify the defense attorney--does anyone know who it was?]

[Update: the commentor noted that the defender was none other than: Julie McKenna! Nice job, Julie!]

Tuesday, March 03, 2009

Not guilty in Topeka Jessica's Law case

On February 26, 2009, after a three-day trial, Richard Jones won an acquittal in State v. Correa-Ruiz, No. 08CR 1132 ending a Shawnee County aggravated criminal sodomy prosecution.

Thinking about instructions

Rick Kittel won in the zone of victory recently in State v. Salts, No. 99,533 (Kan. Feb. 6, 2009), with the KSC holding that "Inclusion of the language '[a]nother trial would be a burden on both sides' in PIK Crim. 3d 68.12 is error." In light of the record and the failure to object to the instruction, the KSC held that the improper instruction was not clear error. But in a case where there was an objection or in a case where the jury ended up sending out questions or where there is other evidence of juror disagreement, maybe it would matter.

The lesson might be to look at the pattern instructions carefully--are they really accurate statements of the law?

For example, take PIK Crim. 3d 51.10 Penalty Not To Be Considered By The Jury
Your only concern in this case is determining if the defendant is guilty or not guilty. The disposition of the case thereafter is a matter for
determination by the Court.

Is this an accurate statement? First, a jury doesn't "determine" that a defendant is not guilty. A defendant is presumed not guilty. The only question for the jury is whether the state has met its burden of proof. Implying that the jury has to determine that a defendant is not guilty could be construed to actually shift or dilute the burden of proof. So object. Request that the instruction read "Your only concern in this case is determining whether the state has met its burden to prove each and every element of each charged crime beyond a reasonable doubt." That's a correct statement of law, right?

And second, is it true that a jury is restricted to determination of the facts? Although jury nullification is not a viable defense, that does not mean that a jury is not empowered to nullify. See, e.g., Noel Fidel, "Preeminently a Political Institution: The Right of Arizona Juries to Nullify the Law of Contributory Negligence," 23 Ariz. St. L. J. 1 (1991). You may be familiar with the Fully Informed Jury movement. But even if juries are not fully informed of their right to nullify, it may be a misstatement of law to affirmatively direct that they are not so empowered. So maybe object to the instruction on that ground as well.

This is just an example of how we should look carefully at these pattern instructions. The pattern instructions are promulgated by a committee that tries to conform to the law, but as we know (1) anybody can get it wrong, (2) especially when you have a moving target. If you can argue that a pattern instruction is not accurate as a matter of law, object on that ground. Even if not successful, if you are right, with a better standard of review, it might matter on appeal. (At least if will give your appellate defender another argument!)

Monday, March 02, 2009

Prosecutor cannot urge uncharged charges as evidence

Korey Kaul won in State v. Herrera, No. 97,381 (Kan. App. Feb. 27, 2009) obtaining a new trial in a Segwick County aggravated indecent liberties and criminal sodomy prosecution. The proseuctor had argued that "[T]his case came to light and it was appropriately and conservatively charged for the sex acts he did and then the second victim also comes forward. You know, mind you he is not charged with the sex acts of what he did to [V.H.] that are outside the statutes of limitations. Mind you, he is not charged with additional sex act [sic] that came to light in [D.H.'s] second March 8th interview. There is one about a trip on the way to dance from April or May of '04 and there is another shower incident when he molested her breasts and her vaginal area. He is charged with what initially came to light and then was later corroborated in the follow-up interview." The COA held that the reference and argument surrounding uncharged acts was clearly improper:
the State's comments upon the uncharged acts misrepresent the facts related to the crimes charged and introduce facts that were not admitted at trial, such as the reasons the State did not charge Stephano with additional offenses. Such commentary is improper and beyond the permissible bounds of closing argument. We recognize that a prosecutor has a wide latitude to explain evidentiary problems and to draw reasonable inferences from the evidence. Nevertheless, a deduction may be based only upon evidence which was actually introduced.

Moreover, because the comments emphasize uncharged crimes that, although admitted without objection at trial, tend to indicate the criminal defendant's propensity to commit sex crimes and practically invite the jury to reach a compromise verdict, we cannot deem the comments to be insignificant. Multiple reasons might exist for the State's decision not to charge crimes that have been alleged by a victim, not the least of which is the prosecutor's belief that such crimes are not credible. By offering an explanation for failing to charge such crimes, the prosecutor in this case effectively testified and suggested that, save for the operation of law or the poor memory of a victim, Stephano should be facing an even greater punishment than permitted by the charged offenses. This argument was improper.

In addition, it was clearly improper for the prosecutor to go outside the record and tell the jury that Stephano was responsible for more crimes than just the offenses charged in the complaint.
The COA held that the repeated improper references were gross and flagrant and evinced ill will. As a result, it ordered a new trial.

[Update: the state did not file a PR and the mandate isued on April 2, 2009.]