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 Sept. 25, 2009)(unpublished), reversing a Riley County drug conviction.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