Wednesday, April 29, 2009

Acquittal in Reno County

Here is a Hutch News article reporting that Lee Timan won an acquittal in State v. Dirkson, ending a Reno County agg battery prosecution.

Monday, April 27, 2009

Just because you might get to leave later doesn't mean you feel free to leave now

John Moon of Albequerque won in U.S. v. Fred, No. 08-2052 (10th Cir. April 20, 2009)(unpublished), obtaining suppression of statements under Miranda. The main question was whether Mr. Fred was in custody. The Tenth Circuit underwent a detailed analysis of the district court's findings, holding that some were supported and some were clearly erroneous. The court particularly distinguished the fact that the agent told Mr. Fred he could leave at the end of the interview as not supporting a finding that Mr. Fred would have felt free to leave:

Fred’s ability to leave when he was done with the interview, as Mahoney testified, is quite different than Fred’s ability to leave at any time, as the district court erroneously found. We agree that the emphasized portion of Mahoney’s testimony “resounds more as a compulsion that he is not leaving until he talks.” Mahoney’s testimony does not support the district court’s conclusion that Fred was informed he was free to leave at any time.

. . . .

Taking all of these facts into consideration, we conclude that a reasonable person in Fred’s position would have understood that he was in custody during the interview. Fred was in an enclosed room at the FBI office with two FBI agents, seated with his back to a door he reasonably thought was closed. The agents wore badges and guns. The interview lasted between one and a half and two hours. McClanahan was not permitted to be present in the room while her husband was interviewed. As Mahoney testified, Fred was told he could leave when he was done. Miranda warnings were not given prior to Fred’s custodial interrogation, and the district court should have suppressed Fred’s statements.

The Tenth Circuit went on to hold that the improper admission of the statements was not harmless and reversed.

Kudos to David Freund for the case tip.

Acquittal in murder case

Here is a Hutch News article reporting that Phillip White (my old public defender colleague) won an acquittal in State v. Salas, ending a Sedgwick County first-degree murder prosecution. As the article relates, investigators never found a body.

Friday, April 24, 2009

Not guilty in arson case

Here is a Lawrence Journal-World article reporting that Charles Whitman won an acquittal in State v. Toussaint, ending a Douglas County arson prosecution.


Carl Folsom won in State v. Schad, No. 99,445 (Kan. App. April 24, 2009) reversing several conditions of probation imposed in a Stafford County aggravated indecent solicitation case. As a condition of probation, the district court placed Mr. Schad on house arrest for the entirety of the sixty-month probation, with permission to leave only to meet with his probation officer, attend sex offender treatment, and to attend medical appointments. The district court also required the placement of signs outside Mr. Schad's house saying a "Sex Offender Lives Here" and on his car stating that "Sex Offender In This Car."

The COA reviewed several out-of-state cases and held that the conditions imposed did not comply with the statutory requirement that probation terms reasonably relate to rehabilitation, which has been held to be the primary purpose of probation:

Here, in placing Schad on probation, the trial court declared that there was "little chance of recidivism." This was supported by the psychological evaluation report, which stated that Schad was not "a public risk." In the psychological evaluation report, Schad was described as "an aging person showing poor judgment in the face of mitigating circumstances." The trial court's stated reason for ordering the probation conditions requiring Schad to post signs around his house and on his car declaring his sex offender status was to protect people who were new to the community and might not know that Schad was a convicted sex offender. The trial court never pronounced a rehabilitative goal for imposing those probation conditions.

Moreover, a review of the record in this case fails to show how those probation conditions would fit within the bounds of rehabilitating Schad. To the contrary, the conditions would actually deter Schad's rehabilitation as they would make it nearly impossible for Schad to assimilate himself within the community. Everywhere Schad would go, he would be explicitly identified as a sexual offender. The probation conditions requiring Schad to post signs on his property and on his car represented the criminal act that he had committed and was a badge of shame for all to see. As noted by other jurisdictions, "the effect of such a scarlet letter condition tends to over-shadow any possible rehabilitative potential that it may generate."
The COA went on to quote the lyrics to a mid-60's TV show called Branded about the tribulations of a man who was wrongly court-martialed for cowardice:

Marked with a coward's shame.
What do you do when you're branded . . . ?
[McCord] was innocent, Not a charge was true.
And wherever you go
For the rest of your life
You must prove
You're a man!
The COA took judicial notice of the small size of the community involved and noted that with registration requirements and publication of that information, there was little safety provided by the measures ordered by the district court:

Under the facts of this case, the probation conditions requiring Schad to post signs around his house and on his car announcing his sex offender status were not reasonably related to the rehabilitative goal of probation or to the protection of the victim and society. In short, probation is not to shield guilty individuals from the consequences of their crimes, but it is an attempt to reform their attitudes about acting out in a criminal way. Here, the signage conditions made Schad an object of condemnation and ridicule. The signage conditions only confirmed society's outrage against Schad. The signage conditions were simply a punitive measure not reasonably related to rehabilitation.
As a result, the COA held that the conditions imposed were not authorized by statute.

Finally, the COA considered whether the house arrest condition that precluded Mr. Schad from going grocery shopping deprived him of an essential activity or privilege:

The legislature expressly included the sanction "deprivation of nonessential activities or privileges" but did not include its counterpart in the nonexclusive list under K.S.A. 21-4603b(d). This indicates a legislative intent not to include deprivation of essential activities or privileges as a house arrest sanction under K.S.A. 21-4603b(d). Moreover, although not argued by Schad, such a broad sanction depriving an individual of activities essential to his or her survival would likely be declared unconstitutional under the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution. Based on a plain reading of the statute, it is clear that the legislature did not intend to give the trial court the authority to deprive an individual of an activity essential to daily living while on house arrest.

The probation condition prohibiting Schad from leaving the house to grocery shop would constitute deprivation of an essential activity unless Schad had other means of providing food for himself. The record in this case indicates that Schad was an elderly man living by himself. There is no evidence in the record showing that Schad had friends or family members living close to him who would be willing to do his grocery shopping. Under such circumstances, grocery shopping would presumably constitute an activity essential to daily living. In the absence of findings that Schad has the ability to obtain food by other others, the no grocery shopping condition cannot be ordered under K.S.A. 21-4603b(d).
Here is the report on this case in the Hutch News and here in the Wichita Eagle's story. The case also was commented on here in the Sentencing Law and Policy blog.

Here is a link to the theme from Branded for those of you who weren't watching NBC in the mid-60's.

Man, that's a long theme song! It reminds me of one of my favorite Chuck Conners theme:

No lyrics, so it will probably never make it into an appellate decision. But still a great theme, maybe, for a Second Amendment case?

[Update: the state did not file a PR and the mandate issued on May 28, 2009].

Thursday, April 23, 2009

Robbery definitions

Carl Folsom won in State v. Soule, No. 98,702 (Kan. App. April 17, 2009)(unpublished), getting a new trial in a Sedgwick County aggravated robbery prosecution. The COA held that sufficient evidence supported the aggravated robbery prosecution, but agreed that Mr. Soule's requested instructions regarding the elements of aggravated robbery. The district court gave the PIK instruction for robbery, but denied the following requested definitions:
(1) "Person or presence" requires that the defendant and the victim have or be able to have immediate physical contact with each other at the time of the taking"; (2) "The word 'taking' must be contemporaneous with the force or threat of bodily harm to [victim], in order for the Defendant to be found guilty of aggravated robbery or robbery"; and (3) "'Taking' means to acquire control over property of another."
The COA acknowledged that the district court does not have to define every word, but it applied State v. Randle, 32 Kan. App. 2d 291 (2004), and held that the contemporaneous nature of the taking and the force are not always clear by the PIK instruction. And in a case where the defense is that the taking and the use of force or threat were distinct acts, failure to give the requested definitions matters:
In viewing the evidence in a light most favorable to Soule, his testimony supports a finding that he had complete, absolute, and indepedent possession of the money and had left the scene before [victim] arrived. Soule admitted to taking money from [victim's] car, which was parked in the back of his restaurant. Nevertheless, he testified that he had left the car and fled the scene before [victim] arrived to avoid recognition.
The COA reversed and remanded for new trial. The COA did not that the exact language of the requested instructions was not approved, but that the district court should craft appropriate definitions in conformity with Randle.

Another good example of the difference between requesting instructions and not requesting instructions. No request in Randle, no clear error and affirmed. Request in the current case, reversed on appeal. This is a critical stage as far as potential appellate error, so be assertive about requesting instructions that further your trial theory.

[Update: the state did not file a PR and the mandate issue on May 21, 2009].

Improper response to jury question prompts reversal

Carl Folsom won in State v. Jones, No. 97,976 (Kan. App. April 17, 2009), obtaining a new trial in a Johnson County aggravated robbery prosecution. During deliberations, the jury asked "Were there identified fingerprints on the gun?" The district court responded that "no evidence was presented about fingerprints on the gun." Because there had been trial testimony about fingerprints on the gun, the COA held that the judge's response was a misstatement of the trial testimony. The COA went on to consider the prejudicial nature of the error:
The jury's question: "Were there identified fingerprints on the gun?" was specifically directed at the critical issue in the case, which was highly controverted--the determination of the robber's identity. The correct answer to this question--that Detective Cohee testified that he believed Briggs' fingerprints, and no others, were on the gun--supported Jones' defense that Briggs, not Jones, committed the crime. The response provided by the trial court that "no evidence was presented about fingerprints on the gun" was not just erroneous but adverse to Jones' defense.
The COA went on to caution trial judges about extemporaneous discussions with the jury about questions. Good advice.

[Update: the state filed a motion to add to the record and a motion for rehearing on May 1, 2009. Mr. Jones objected to both.]

[Further update: the state filed a PR on May 18, 2009.]

[Further update: on June 29, 2009, the COA denied the state's motion to add to the record and for rehearing. The state filed a PR from that decision on July 29, 2009.]

[Further update: the KSC denied both of the state's PRs and the mandate issued on March 9, 2010.]

Tuesday, April 21, 2009

Arizona v. Gant limits automobile searches incident to arrest

The SCOUTS Court issued its opinion in Arizona v. Gant (07-542) on warrantless automobile searches incident to arrest. The Court held that, “Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” The Court further held that a search of the vehicle incident to arrest is allowed “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (Emphasis added).

Justice Stevens wrote for the Court:

After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. Because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search, the Arizona Supreme Court held that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California, 395 U. S. 752 (1969), and applied to vehicle searches in New York v. Belton, 453 U. S. 454 (1981), did not justify the search in this case. We agree with that conclusion.

Under Chimel, police may search incident to arrest only the space within an arrestee’s “‘immediate control,’” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U. S., at 763. The safety and evidentiary justifications underlying Chimel’s reaching-distance rule determine Belton’s scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U. S. 615 (2004), and following the suggestion in JUSTICE SCALIA’s opinion concurring in the judgment in that case, id., at 632, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.
The KSC is currently considering a similar issue in State v. Randy Henning, et al., Case Nos. 98,118 & 98,119 (argued 09/03/08). The Gant decision will likely decide the outcome in Henning and affect the constitutionality of K.S.A. 2006 Supp. 22-2501(c) (allowing search incident to arrest to discover the fruits, instrumentalities, or evidence of “a crime”, instead of “the crime”). Here is scotuswiki’s coverage of Gant.

Monday, April 20, 2009

Article on death penalty litigation in Kansas

Here is a Wichita Eagle article reporting on the possible impact of the (relatively) recent Marsh ruling with regard to pending capital cases.

Recent KSC actions

The KSC has acted on a number of cases that had petitions for review pending. Here is a complete list of the court's actions on April 7, 2009.

Thanks to Rachel Pickering for the tip.

Wednesday, April 15, 2009

Not guilty of criminal threat

Here is a Salina Journal article reporting that Roger Struble won an acquittal in State v. Olson, ending a Saline County criminal threat prosecution.

Sunday, April 12, 2009

Apprendi at juvenile certification hearings

Here is a blog entry at Sentencing Law and Policy reporting about a paper discussing some ramifications of applying Apprendi to juvenile certification hearings. I made that argument a long time ago (unsucessfully) in state court. It has had more success in other jurisdictions. And given the fact that our court has recently held that there is no functional difference between juvenile adjudications and adult prosecutions for purposes of the right to a jury trial, (see here) it is even more difficult to understand why Apprendi would not apply to the decision. It certainly can't be because there is some fundamental difference between the types of prosecutions.

So, if you are involved in juvenile certification hearings or even defending persons who have been certified for prosecution as an adult, be sure to raise an Apprendi objection. Although Kansas law is against us right now, who knows what tomorrow brings?

Saturday, April 11, 2009

Improperly expanded stop

Sam Kepfield won in State v. Heath, No. 98,974 (Kan. App. April 3, 2009)(unpublished), obtaining reversal of a Harvey County drug conviction. The COA applied the recent case of State v. Smith (blogged about here):

The [Smith] court then concluded: “[W]e continue to adhere to our longstanding rule that consensual searches during the period of a detention for a traffic stop are invalid under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights.”

Accordingly, the Smith court held the trial court had correctly ruled that the request and subsequent search of Smith exceeded the scope of Smith's detention. So too at bar. [The officer's] Wambold's initial questions to Heath concerned the accident. This did not exceed the scope of the traffic stop. But [the officer] “quickly discern[ed]” that Heath had not been in the car at the time of the accident and had not witnessed the accident. Yet, [the officer] continued to question Heath and asked to search because he thought Heath had used illegal drugs. As in Smith, the requests and searches here had nothing to do with the purpose of the stop. The searches of Heath, both the pat-down and the shoe search, exceeded the scope of the detention.

The COA recognized that a recent SCOTUS decision has been cited as impacting the correctness of Smith:
The facts in [Arizona v. Johnson, 129 S.Ct. 781 (2009)] are too dissimilar to the present case to provide us with much guidance on when an encounter becomes consensual. Accordingly, we are more comfortable relying on our Supreme Court's guidance in Smith.
Additionally, even if Johnson does affect the correctness of Smith with regard to the Fourth Amendment interpretation, Smith also explictly relied upon the Kansas Constitution. Although the KSC has often held that the constitutional provisions are coextensive, until the KSC says the state constitutional law analysis in Smith is overruled, it is still good law.

[Update: the state did not file a PR and the mandate issued on May 7, 2009].

Friday, April 10, 2009

Two weeks ago isn't "on or about." Neither is six months ago.

Pat Dunn won in State v. Murr, No. 98,231 (Kan. App. March 4, 2009)(unpublished), reversing a Crawford County manufacture conviction and obtaining a new trial on conspiracy and possession conviction. The COA agreed that evidence of manufacture occurring weeks prior was insufficient to prove manufacture "on or about January 12, 2005" as charged:
We acknowledge that in Kansas, it is not necessary for the State to prove the exact date upon which an offense was committed. It is sufficient to prove that the offense charged was committed on or about the date alleged in the information, and within the statutory period of limitations next proceeding the commencement of the prosecution. However, we are unaware of any case that definitively held that evidence that a crime occurred 2 weeks prior to the date charged is sufficient proof that the crime occurred on or about the date charged.
Because the COA observed that the record was unequivocal that no manufacture took place on or about the date charged, it reversed the manufacture conviction.

Similarly, the COA held that the prosecutor engaged in misconduct by urging the jury to rely on evidence of conspiracy and possession that predated the charge:
We conclude that when the prosecutor told the jury it could go back as far as June 2004, it misled the jury into thinking that any events that occurred since that date were encompassed within the charging documents. . . . The comments, in essence, told the jury it could consider criminal activity that occurred outside those documents. Furthermore, the comments are not limited to just the manufacturing charge which we have held should be vacated. They were broad enough in our view to affect the jury's deliberation on the other three charges. None of these charges included activity back to either June or November of 2004.
So the COA ordered a new trial on the remaining charges.

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

Sunday, April 05, 2009


Here is the Wichita Eagle article reporting that Michael Marsh pleaded to felony murder, ending the Sedgwick County capital murder prosecution that was the subject of the United States Supreme Court case a few years ago (here is early blog reporting on the subject).

One less person that the State of Kansas seeks to kill in my name.

Nice job to Steve Zinn (our friend and colleague who passed away a few years ago, but was a part of the Marsh appeal team), Rebecca Woodman, Jeff Wicks, and everyone else that has worked on the Marsh case.

Saturday, April 04, 2009

Justice Delayed is Justice Denied

Charles A. O'Hara won in State v. Pickerill, Case No. 100,189 (April 3, 2009)(unpublished), affirming Judge Chambers' dismissal of charges with prejudice and the denial of the state’s motion to continue the preliminary hearing.

At the preliminary hearing, the state requested a continuance or, in the alternative, a bifurcated hearing because the assigned prosecutor had been called out of state for family medical reasons, and the State's primary witness was training out of state and was not present to testify. Mr. Pickerill's counsel objected to the state's motion and moved for dismissal based upon surprise, that Mr. Pickerill and his parents drove from New Mexico at their own expense for the hearing, and that Mr. Pickerill was on oxygen and in poor health. Judge Chambers denied the state's motion for a continuance or bifurcated hearing and dismissed the case with prejudice.

The COA affirmed the district court noting the “long and arduous case history.” The COA cited the lack of diligence in compelling the detective’s testimony, the fact that the case had been in the system four years, Mr. Pickerill's failing health (who was on oxygen in the courtroom), and the fact that Mr. Pickerill and his family had driven from New Mexico for the hearing. Based on these facts, the COA held that the district court did not abuse its discretion in denying the state’s motion to continue and dismissing the charges with prejudice.

[Update: the state did not file a PR and the mandate issued on May 7, 2009].

Friday, April 03, 2009

The difference between objecting and not objecting

Rick Kittel and KU Defender Project student Danny Moskowitz won in State v. Page, No. 98,153 (Kan. App. April 3, 2009), obtaining a new trial in a Butler County rape proseuction. Readers remember that we blogged (here) a few weeks ago about a "zone of victory" win for Rick in State v. Salt, where the KSC held that the common deadlocked jury instruction telling the jury that another trial would be a burden was legally incorrect. Because there was no objection in Salts, the KSC applied a clearly erroneous standard and did not reverse.

In today's case, the defense attorney did object:

Here, the defendant objected to the giving of the deadlocked jury instruction. Consequently, we must consider whether the error identified in Salts is reversible when challenged at trial. We must determine whether the instruction challenged here properly and fairly stated the law as applied to the facts of the case and whether the instruction could have reasonably misled the jury.

According to our Supreme Court, telling a jury that "another trial would be a burden on both sides" is misleading, inaccurate, and confusing. Moreover, in this case the jury actually informed the district court a hung jury was a real possibility. In fact, the jury indicated it was deadlocked as to count II. The district court responded by recessing for the evening. When the jury returned the next day, the jury requested the court read back certain testimony. The jury eventually convicted the defendant of two counts of rape. Given the fact our Supreme Court has held the deadlocked jury instruction misleading and the real possibility the jury in this case was at least influenced by the erroneous language in the jury instruction, this defendant's convictions must be reversed.

It's a nice reminder for us appellate-types that some arguments that do no necessarily help the current client may help other clients down the road. And it's a nice reminder for trial-types that objections matter. A lot.

[Update: the state did not file a PR and the mandate issued on May 7, 2009].

Wednesday, April 01, 2009

Have to prove age for domestic battery

Rick Kittel and KU Defender Project student intern Amanda Sheridan won in State v. Perez-Rivera, No. 99,308 (Kan. App. March 27, 2009), reversing a Barton County domestic battery conviction. The COA noted that the statute clearly defines "family or household member" as a listed person 18 years of age or older:
Clearly, the plain language of K.S.A. 21-3412a required the State to prove beyond a reasonable doubt that, among other things, Wendy was 18 years of age or older when the alleged incident occurred. If there was no evidence presented which went to prove this element, then defendant's conviction must be reversed.

The State argues it presented circumstantial evidence which satisfied this element, pointing to the fact both Wendy and the defendant testified they had been married for 2 ½ years, and defendant stated the marriage ceremony took place in Las Vegas. Based on this evidence, the State argues the jury could have inferred Wendy was at least 18 years old when the alleged incident occurred because, according to the State, under Nevada law, a person must be at least 16 years old to marry. See Nev. Rev. Stat. § 122.020 (2004). The State assumes the jurors had personal knowledge of Nevada's marriage laws because the State failed to present any evidence at trial addressing this issue. The State further argues, based on Wendy's appearance and demeanor at trial, the jury could have concluded that she was 18 years old at the time of the incident.

The State's arguments must be rejected. First, while it is true that a conviction may be sustained by circumstantial evidence, guilt may never be based on inference alone. Reasonable presumptions and inferences may be drawn from facts established by direct or circumstantial evidence, but a presumption may not be based upon a presumption or an inference upon an inference. A jury simply cannot speculate or infer through its own observations or personal knowledge that an element of a crime has been proven. The State must put on evidence, circumstantial or direct, that establishes every element necessary to sustain a guilty verdict.
We have made arguments similar to this with regard to the age of the defendant in some Jessica's Law cases. The same reasoning should apply.

[Update: the state did not file a PR and the mandate issued on April 30, 2009].