Friday, May 29, 2009

Not guilty on battery on a correctional officer

Here is a Hutchinson News article reporting that Sarah Sweet-McKinnon won an acquittal in State v. Hubbard, ending a Reno County battery on a correctional officer prosecution.

Tuesday, May 19, 2009

Captial murder charges dismissed

The State has dismissed capital murder charges against Jason Strand and Kendrick Shears, two Hutchinson Correctional Facility inmates accused of the murder of fellow inmate David Warren. Tim Frieden and Jeff Wicks represented Mr. Shears, and John V. Wachtel and Roger L. Falk represented Mr. Strand. Here is a article on the dismissal.

At a preliminary hearing in March, the court found that probable cause existed for the capital murder charges against Shears and Strand, but the men had not been arraigned at the time of the dismissal. Reno County District Attorney Keith Schroeder said in a news release, “To proceed to trial, with full knowledge of the overwhelming weaknesses in the credibility of key witnesses, would be reckless, irresponsible and likely result in acquittal."

A third defendant, Charvell Robinson, had also been charged with capital murder in the case, but the court found at the March preliminary hearing that there was no probable cause to believe that Mr. Robinson committed any crime. Marc Manna and Gary W. Owens represented Mr. Robinson.

Friday, May 08, 2009

Can't use uncounseled misdemeanors for enhancement

Michelle Davis won in State v. Youngblood, No. 96,850 (Kan. May 8, 2009), reversing a Harvey County conviction for second-time possession of a hallucinogenic drug. The critical issue was whether the distrrict court could use a prior municipal conviction for enhancement purposes. There were two issues: (1) did the state prove waiver of counsel and (2) did Mr. Youngblood have a right to counsel? On the first issue, the KSC held that the state had failed to prove a waiver:
Defense counsel asked the municipal judge whether he had any independent recollection of whether Youngblood waived counsel on the day he pled or whether he waited to waive counsel until he signed the waiver form on November 1. The judge responded that he had "the general gist of the conversation with Mr. Youngblood in going through the standards, having done it hundreds of times with that inquiry but in terms of the exact quote of what he said, no. I don't." Again, no clarification was sought as to what "standards" the witness was referring or the nature and extent of the "inquiry" the municipal judge had made hundreds of times.

Apparently, the State would have us accept on faith that the municipal judge's standard procedure includes sufficiently informing the defendant of his or her rights, so as to meet the criteria for a valid waiver. However, [In re Application of Gilchrist, 238 Kan. 202, 208, 708 P.2d 977 (1985)] stressed the need to have either a record of the court proceedings in which a criminal defendant waives the right to counsel or a written waiver of counsel "for the purpose of proving an accused was properly advised of his rights and that he knowingly and intelligently waived those rights."

It is not enough to show that Youngblood, after the fact, corroborated that he had waived counsel. The State must also prove that the initial waiver was properly obtained after appropriate advice as to the right to counsel, i.e., that the plea hearing waiver was knowingly and intelligently made. A post-sentencing written waiver will not legitimize an invalid pre-plea waiver.

On the second point, the KSC applied Alabama v. Shelton, 535 U.S. 654 (2002),a fairly recent SCOTUS decision, and held that even though Mr. Youngblood was not required to serve the suspended sentence in the prior municipal case, the suspended sentence was sufficient to trigger the right to counsel.
Youngblood was entitled to counsel when the municipal court found him guilty and sentenced him to a prison term, even though the jail time was conditioned upon probation. The denial of that right to counsel renders the uncounseled misdemeanor conviction in municipal court unconstitutional under the Sixth Amendment. Accordingly, the unconstitutional conviction could not be collaterally used in district court for sentence enhancement. Youngblood's conviction for felony possession of hallucinogenic drugs is reversed.

This seems to be an accurate application of Shelton.

Attempted Jessica's Law is a grid offense

E. Jay Greeno won in State v. Horn, No. 100,373 (Kan. May 8, 2009), obtaining remand for new sentencing in a Butler County attempted criminal sodomy case. The KSC construed two different provisions noting that Jessica's Law purports to cover listed offenses and attempts to commit those listed offenses, but that the sentencing guidelines provides that attempt to commit an off-grid offense is a severity level 1 offense. The KSC concluded both statutory provisions apply:
The district court focused on the provisions of Jessica's Law, particularly noting that K.S.A. 21-4643(a)(2)(B) requires the sentencing court to impose the applicable guidelines sentence if it results in a longer prison term than the mandatory minimum of 25 years (300 months). That persuaded the district court that the legislative intent was to impose the longest possible prison term for the crimes listed in 21-4643(a)(1), including attempts. While that intuitive assessment of legislative intent is likely accurate, we cannot simply ignore the fact that the legislature did not clearly state its intent by amending K.S.A. 21-3301(c) to exclude K.S.A. 21-4643.

Where the legislature fails to manifest a clear legislative intent by permitting the existence of conflicting statutory provisions, the rule of lenity must be considered. The general application of the rule is that "'[c]riminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.'"

Employing the rule of lenity in this case leads us to resolve the conflicting statutory provisions in favor of Horn. Specifically, aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1) is an off-grid felony. K.S.A. 21-3506(c). Pursuant to K.S.A. 21-3301(c), the separate crime of attempted aggravated criminal sodomy is ranked as a nondrug severity level 1 felony. Therefore, we vacate Horn's hard 25 life sentence under 21-4643 and remand for appropriate sentencing for a severity level 1 nondrug felony under the KSGA.

Interesting--sort of like McAdam, but they sure never cite McAdam.

Monday, May 04, 2009

In-laws connection insufficient for probable cause

The Tenth Circuit decided Poolaw v. Marcantel, No. 07-2254 (10th Cir. May 4, 2009), a 1983 case, where officers searched a suspect's in-law's property and stopped a suspect's sister-in law mostly because they were the suspects' in-laws. The Court held that familial relationship, by itself, is insufficient for probable cause:
Adhering to established Supreme Court precedent and the unanimous case law of this and other courts, we hold that a familial relationship is insufficiently particularized to justify invading an individual’s reasonable expectation of privacy. Applying this rule to the present case, we conclude that the Poolaws’ status as Astorga’s in-laws, combined with the meager additional facts known to Marcantel and Hix, were insufficient to support a finding of either probable cause to search the property or reasonable suspicion to detain Chara. Further, because these Fourth Amendment principles were clearly established at the time of their actions, Marcantel and Hix are not entitled to qualified immunity.

Might be useful in some other Fourth Amendment contexts.

There's probably some sort of in-laws joke in here, but it's escaping me.

Kudos to David Freund for the tip.

May 2009 KSC docket

Here are the criminal cases on the KSC docket for May 11-15, 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.

May 11--Monday--a.m.

State v. James Boyer, No. 98,763 (Sedgwick)
Sentencing appeal (petition for review)
Lydia Krebs
[Reversed and remanded; Rosen; June 19, 2009]

  1. Use of juvenile to classify as persistent sex offender
State v. Gerald Gonzales, No. 99,657 (Sedgwick)
Direct appeal; Rape/Agg Indecent Liberties (Jessica's Law)
Rachel L. Pickering
[Aff/Rvd in part; Luckert; July 24, 2009]

  1. Failure to charge and instruct on element of crime
  2. Insufficient evidence
  3. Ineffective assistance of counsel
State v. Ronnie Morlock, No. 97,447 (Sedgwick)
Direct appeal (petition for review); Possession with Intent to Sell
Mark T. Schoenhofer
[Affirmed; Nuss; November 6, 2009]
  1. Fourth Amendment
State v. Karlan Ransom, No. 99,794 (Sedgwick)
Direct appeal; First-degree murder
Nancy Ogle
[Affirmed; Beier; July 24, 2009]

  1. Fourth Amendment
  2. Improper admission of irrelvant evidence
  3. Improper inclusion of biased juror

May 12--Tuesday--a.m.

State v. David Easterling, No. 100,454 (Shawnee)
Sentencing appeal
Christopher M. Joseph
[Affirmed; Johnson; August 7, 2009]

  1. Sentencing procedure
State v. Christopher Case, No. 98,077 (Dickinson)
Sentencing appeal (petition for review)
Christina M. Waugh
[Reversed and remanded; Nuss; August 7, 2009]

  1. Extension of post-release violates Apprendi

May 13--Wednesday--a.m.

State v. Gary Morningstar, No. 99,788 (Sumner)
Direct appeal; Rape (Jessica's Law)
Kirwin L. Spencer (argue), Rachel L. Pickering (brief)
[Aff/Rvd in part; Biles; August 14, 2009]

  1. Sufficiency of instructions on age of defendant
  2. Prosecutorial misconduct
State v. Jerry Trussell, No. 99,411 (Butler)
Direct appeal; First-degree murder
Michael C. Brown
[Affirmed; Johnson; August 21, 2009]

  1. Sufficiency of evidence
  2. Admission of confession
  3. Improper leading questioning

May 14--Thursday--a.m.

State v. Darren Raschke, No. 98,861 (Rice)
Sentencing appeal (petition for review)
Carl Folsom
[Affirmed; Beier; October 20, 2009]
  1. Imposition of fines without consideration of ability to pay
State v. Michael Houston, No. 98,373 (Wyandotte)
Direct appeal (petition for review); Second-degree murder
Carl Folsom
[Affirmed; Nuss; August 19, 2009]

  1. Improper denial of witness prior bad acts
  2. Improper admission of evidence about incarceration at Larned
  3. Improper admission of hearsay
  4. Failure to instruct on involuntary manslaughter
Lisa Boldridge v. State, No. 97,652 (Atchison)
K.S.A. 60-1507 appeal (petition for review)
Jean K. Gilles Phillips
[Aff'd/Rvd; Davis; Sept. 11, 2009]

  1. Ineffective assistance of counsel
State v. Harry White, No. 100,264 (Saline)
Motion to withdraw plea; Agg indecent liberties (Jessica's Law)
Carl Folsom
[Reversed and remanded; Luckert; July 17, 2009]

  1. Withdrawal of plea where defendant inaccurately advised of maximum penalty

May 15--Friday--a.m.

State v. Cynthia Casady, No. 99,023 (Doniphan)
Sentencing appeal (petition for review)
Shawn E. Minihan
[Affirmed; Rosen; June 26,2009]
  1. BIDS application fee

Second hung jury in Salina murder case

Here is the Salina Journal article reporting that, for the second time, a Saline County intentional second-degree murder prosecution has ended in a hung-jury. The article indicates that the prosecutor will decide whether to try, try again. Nice job to Julie McKenna for her great work in the case.

[Update: here is a Salina Journal article reporting that the prosecutor plans to try a third time.]

[Further update: here is a Salina Journal article reporting that on the third try, the jury returned a lesser verdict for unintentional second-degree murder.]

Friday, May 01, 2009

When all else fails, see if you can get the defense attorney to testify

Here is a Hutch News article reporting that Judge McCarville has found public defender Sarah Sweet-McKinnon in contempt for refusing to testify regarding confidential client communications in a Reno County murder prosecution. I thought it was sort of interesting that the prosecutor says that this "is a murder case, and the sole goal is to find the truth." Really? Even if it means throwing the rules of professional conduct out of the window? I guess that's one view.

We will update on this appeal when there is something to update.

[Update: here is a Hutch News article reporting on the ongoing saga.]

[Further update: here is a Hutch News article reporting that this appeal has been transferred to the KSC.]