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Meryl Carver-Allmond won in State v. Betts, No. 100,887 (Aug. 28, 2009)(unpublished), reversing two counts of sale and two counts of unlawful use of a communication facility in a Seward County drug case.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.]