Saturday, October 31, 2009

Permanently incompetent to stand trial

Lane Williams and Kirk Lowry from the Disability Rights Center of Kansas won in State v. Johnson, No. 96,526 (Kan. Oct. 30, 2009), affirming Judge Becker's dismissal of a Reno County DUI-manslaughter prosecution. This case has a fairly long history, as described in the opinion. As noted in the opinion, Mr. Johnson drove a vehicle into a tree, killing the passenger and himself suffering coma-inducing brain injury. The state subsequently charged Mr. Johnson with DUI-manslaughter. To make a fairly long story shorter, the district court found that, due to "widespread and severe deficits in memory, nonverbal reasoning, sensory perception, and processing speed, including permanent impairment in these areas," Mr. Johnson would not be able to assist in his defense and, therefore, was incompetent to stand trial. As required by statute, Mr. Johnson was committed for treatment and evaluation. The evaluator opined that because of the brain injury, there was not a substantial probability that Mr. Johnson would be competent to stand trial in the foreseeable future. As required by statute, the district court then requested that SRS begin with involuntary committment proceedings. And here's where it gets difficult.

A letter from Kansas Advocacy and Protective Services (the predecessor to the Disability Rights Center) infomed the district court that SRS can only proceed on involuntary committment for persons that are "mentally ill." But a person with a brain injury, like Mr. Johnson, is not mentally ill and not subject to involuntary commitment. The district court considered this information and originally held that the statute did not require it to order a futile act. Because Mr. Johnson could not be prosecuted and could not be involuntarily committed, the district court order the charges dismissed.

The state appealed that order in 2004. I was Mr. Johnson's attorney at that point. The COA reversed Judge Becker's order, reasoning that the district court failed to order SRS to begin involuntary commitment proceedings. After the COA decision, the Disability Rights Center entered its appearance and filed a petition for review, which was denied. (In a very candid moment in the instant opinion, the KSC acknowledges that "Inexplicably, the Supreme Court denied Johnson's petition for review, and the case was remanded to the district court.")

So, the case returned to the district court and the district court followed the COA's order and ordered SRS to begin involuntary commitment proceedings. Because SRS acknowledged in its petition that Mr. Johnson was not subject to involuntary commitment, the district court quickly dismissed the involuntary commitment proceedings and notified the district attorney.

The state then filed a request for a new competency hearing, because it had been four years since the previous competency hearing. The district court found that the state had not presented any evidence justifying a new competency hearing and again released Mr. Johnson from custody. And, again, the state appealed. And, again, the COA revered and ordered the district court to conduct further proceedings. But, this time, the KSC granted the petition for review.

The KSC reviewed the relevant statutory provisions and acknowledged the gap between the competency statutes and the involuntary commitment statutes and reviewed some of the legislative grappling with this very problem.

Although K.S.A. 22-3303(1) mandates that the district court order SRS to commence proceedings to involuntarily commit a defendant who has been adjudged incompetent to stand trial with no substantial probability of attaining competency in the foreseeable future, SRS cannot legally comply with that order under K.S.A. 59-2945 et seq. if the incompetency is due solely to an organic mental disorder such as traumatic brain injury.

. . . .

One can only imagine the consternation and frustration the district court and SRS must have experienced when faced with an appellate court mandate to do that which could not be done.

The KSC noted that the legislature has attempted to strike a balance between these competing concerns by amending the statute to allow involuntary commitment of persons in these situations who are charged with higher level offenses. But Mr. Johnson did not fall within those amended statutory provisions.

Finally, the KSC considered whether the district court erred by failing to hold a new competency hearing.

The district court was absolutely correct in its assessment of the relevance of the dismissal of the involuntary commitment proceedings. That action simply meant that there was no probable cause to believe that Johnson was a mentally ill person subject to involuntary commitment for care and treatment because his sole diagnosis was an organic mental disorder. An organic mental disorder is, however, a mental defect within the meaning of the competency statutes. As noted previously, the district court understood the distinction; the prosecutor should have understood it as well.

The KSC also flatly rejected the COA's second opinion that there were grounds for a new competency hearing:

the experts' opinions directly refute Johnson II's assertion that passage of time since the last medical evaluation of Johnson's cognitive abilities provides a reasonable ground to believe he is not competent. If the diagnosis is permanent and irreversible brain damage, the relative date of that assessment is immaterial.
As a result, the KSC reversed the COA and affirmed Judge Becker's dismissal without prejudice.

There's a lot of good language in this decision on competency issues. In particular, the KSC acknowledges the fact that competency involves not just understanding, but ability to assist in the defense. It seems to me that a lot of the hack evaluations that are done really focus only on understanding. Failure to investigate the nature of the defense and the defendant's ability to assist in that defense may be a fertile ground for cross-examining some of these "doctors."

I also wonder about this legislative fix noted by the KSC. Persons can be involuntarily committed for the rest of their lives, without treatment and, therefore, without hope of release, based on an allegation by the state? As noted by the KSC, such a result is "akin to a life sentence without possibility of parole" for a person that has been convicted of no crime. That seems to have some pretty obvious and big Due Process implications.

Here is coverage of the case in the Hutch News.

Friday, October 30, 2009

Suppression of statement affirmed

Richard Jones won in State v. Solis-Munoz, No. 99,632 (Kan. App. Oct. 23, 2009)(unpublished), affirming Judge Leuenberger's suppression of portions of statements in a Shawnee County second-degree murder prosecution. The COA had previously affirmed the suppression order, but the KSC granted review and remanded for further consideration. On remand, the COA again held that substantial competent evidence supported Judge Leuenberger's finding that the statements extracted from Mr. Solis-Munoz were involuntary:
Here, in light of the translation and the DVD, there is substantial competent evidence to support the district court's findings. The district court had multiple opportunities to review the DVD and make judgments about the conditions of the interrogation. While the interrogation took place in relatively short segments-15 minutes, 40 minutes, 10 minutes-Solis-Munoz was left alone for long periods of time and had been in an interrogation room for approximately 7 hours. Although he never asked to communicate with the outside world, no offer was made to allow him to talk to anyone.

As I've noted before, I'm not sure this is the right standard of review. The judge doesn't really find that the statements are involuntary, only that the state failed to meet its burden of proving that the statements were voluntary. That's a negative finding with a different standard of review. But I suppose the result would be the same.

[Update: the state did not file a PR from the latest COA decision and the mandate issued on December 4, 2009.]

Saturday, October 24, 2009

Unreasonable delay counts against State for speedy trial purposes

Scott C. Gyllenborg , of Gyllenborg & Dunn, P.A., won in State v. Harms, No. 100,159 (Kan. App. Oct. 23, 2009) (unpublished), affirming Judge Davis' order dismissing criminal charges against Harms based upon the state's failure to bring Harms to trial within 180 days of his arraignment as required by K.S.A. 22-3402(2).

The issue in the case was whether time would be attributable to Harms for speedy trial purposes when the state filed a motion to continue the suppression hearing (several months after Harms had filed a motion to suppress). The COA held that the time was attributable to the State:
[W]e reject the State's argument that all of the time between the filing of the motion to suppress and the resolution of the motion is attributable to the defendant, regardless of the circumstance. And because the State does not argue that its request for a continuance of the June 6, 2007, suppression hearing was reasonably occasioned by or attributable to the filing of the motion to suppress, we need not consider that issue.

Nevertheless, we note that when the State filed its motion for continuance of the suppression hearing, it asserted it needed more time to respond to the motion to suppress and that the prosecutor had a family emergency. The State did not suggest, however, that the additional time was needed because there had been insufficient time to respond. Nor would the record support such an argument, since the State's motion to continue the suppression hearing was made more than 2 months after the motion to suppress was filed.
The COA noted, "when the defendant files a motion, only a reasonable time to process the motion may be charged against the defendant." Because the time after the state's motion to continue was not reasonably attributable to Harms' filing of the motion to suppress, the COA affirmed the dismissal of the charges against Harms because Harms was not brought to trial within 180 days of his arraignment as required by K.S.A. 22-3402(2).
[Update: the state filed a PR on November 23, 2009.]
[Further update: the KSC denied the PR and the mandate issued on June 25, 2010.]

Thursday, October 22, 2009

Restrictions on cross-examination warrant new trial

Ron Wurtz, federal PD, won in U.S. v. Robinson, No. 08-3180 (10th Cir. Oct. 20, 2009), obtaining a new trial in a federal felon in possession prosecution. The issue prompting reversal was failure to allow access to an informant's medical records and prohibition on questioning the informant about mental health history:
Six days before Robinson’s trial, the government’s star witness—the CI who purchased the gun from Robinson—was involuntarily committed to a mental health facility. The district court reviewed the CI’s medical files in camera but refused defense counsel access to them. It also precluded defense counsel from asking the CI any questions about his mental health history or his use of prescription medications. Robinson was subsequently convicted of violating of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and sentenced to 33 months’ imprisonment.

We must decide if the district court’s refusal to provide Robinson access to the CI’s medical records contravened due process and whether the court’s limitations on cross-examination of the CI violated the Sixth Amendment. We answer both questions in the affirmative.
A majority of the panel held that the errors were not harmless and therefore reversed and remanded for a new trial.

Tuesday, October 20, 2009

December 2009 KSC Docket

Here are the criminal cases on the KSC docket for December 7-11,2009. 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.

December 7--Monday--a.m.

State v. Michael Hughes, No. 98,716 (Sedgwick)
Sentencing appeal (petition for review)
Matthew J. Edge
[Aff'd/Rv'd; Rosen; Feb. 12, 2010]
  1. Insufficient showing of waiver of counsel for priors
  2. Improper enhancement of sentence based on priors not in complaint
State v. Gregory Berry, No. 100,512 (Sedgwick)
Direct appeal; First-degree murder
Heather Cessna
[Rv'd/Rmd; Biles; July 22, 2011]
  1. Defense counsel abandoned client
  2. Failure to give lesser included offense instruction
  3. Failure to show causation
  4. Ineffective assistance of counsel
  5. Failure to give a requested causation instruction on felony murder
  6. Prosecutorial misconduct
State v. Sean Ernesti, No. 101,925 (Douglass)
State appeal
J. Ryan Hare, Jay Norton
[Reversed; Luckert; August 27, 2010]
  1. Certification of intoxilyzer

December 8--Tuesday--a.m.

State v. Candy Daniel, No. 101,622 (Butler)
Direct appeal (transfer); Possession
Randall L. Hodgkinson
[Affd; Biles; Nov. 19, 2010]
  1. Whether Gant error requires suppression
Stanton Holt v. State, No. 101,563 (Geary)
K.S.A. 60-1507 appeal
Gerald E. Wells
[Aff'd/Rv'd; Nuss; May 6, 2010]
  1. Failure to conduct evidentiary hearing on IAC claim
  2. Improper ban on future or prospective causes of action
State v. Randy Marler, No. 100,820 (Sumner)
Direct appeal; Jessica's Law
Rachel L. Pickering
[Affirmed; Johnson; Jan. 29, 2010]
  1. Improper prior bad act evidence limiting instruction
  2. Improper denial of downward departure

December 9--Wednesday--a.m.

State v. Tyrone Leaper, No. 98,403 (Wyandotte)
Direct appeal (petition for review); Second degree murder
Sarah Morrison (brief); Heather Cessna (argue)
[Affirmed; Nuss; September 3, 2010]
  1. Failure to declare mistrial after juror reported that a witness stole evidence during trial
  2. Improper admission of transcripts
State v. Marcy Carapezza, No. 101, 958 (Lyon)
State v. Jason Hughes, No. 101,959 (Lyon)(consolidated)
State appeal
Julia S. Spainhour, Stephen J. Atherton
[Affirmed; Johnson; March 9, 2012]
  1. Suppression of evidence after Kastigar hearing
State v. Robert Robison, No. 101,515 (Lyon)
Sentencing appeal (Jessica's Law)
Matthew J. Edge
[Affirmed; Davis; January 22, 2010]
  1. Mandatory minimum sentences violate Eighth Amendment
  2. Improper denial of downward departure

December 10--Thursday--a.m.

State v. Nathaniel Hill, No. 94,589 (Montgomery)
Direct appeal; Capital murder (life sentence)
Reid T. Nelson
[Affirmed; Beier; April 15, 2010]
  1. Failure to give lesser of voluntary manslaughter
  2. Batson error
  3. Gruesome photographs
  4. Improper admission of note without proper foundation
  5. Improper finding of competency to stand trial
State v. Andrew Sales, No. 102,578 (Seward)
State appeal
Razmi Tahirkheli
[Dismissed; Rosen; Jan. 29, 2010]
  1. Is expert testimony regarding delayed disclosure of child sex victims subject to Frye test
State v. Christopher Taha, No. 100,768 (Ford)
Direct appeal; First-degree murder
Ryan Eddigner
[Reversed and remanded; Nuss; Sept. 30, 2011]
  1. Improper exclusion of third-party evidence
  2. Failure to give lesser included offense instructions
  3. Improper admission of prior bad act evidence
  4. Prosecutiorial misconduct
State v. Mary Jean Copes, No. 99,403 (Montgomery)
Sentencing appeal (petition for review); DUI
Patrick H. Dunn
[Rv'd/Rmd; Luckert; Feb. 26, 2010]
  1. BIDS fees
  2. Mandatory $2500 fine imposed without findings

December 11--Friday--a.m.

State v. Harold Spencer, No. 101,077 (Shawnee)
State appeal
Carl Folsom, III
[Vac'd/rmd; Beier; March 18, 2011]
  1. What findings are required for downward dispositional departure in Jessica's Law case
  2. Downward durational departure
  3. Downward dispositional departure
  4. Legality of underlying sentence

Saturday, October 17, 2009

Suppression affirmed based on Marx

Wm. Rex Lorson won in State v. Sullivan, No. 101, 850 (Kan. App. Oct. 16, 2009) (unpublished), affirming Judge Hellmer's suppression of evidence in a felony DUI case based on State v. Marx (blogged about here).

At the suppression hearing in the district court, the arresting officer testified that he was following Sullivan's car, and he saw it weave within its lane, almost hit a curb, and cross the lane line one time. This occurred at approximately 1 a.m. but the district court believed Sullivan may have been leaving his place of employment. The court also suggested the "inattentive driving" could be due to cell phone use or adjustment of the radio. The district court found that Sullivan's vehicle may have been the only vehicle on the road and his one-time movement fell short of complying with State v. Ross, 37 Kan. App. 2d 126 (2007) (blogged about here).

Relying on Marx, the COA held, "Clearly, according to the Supreme Court, the State must present more information than an observation of a lane breach in order to use that violation to justify a car stop." Thus, the COA affirmed the district court's decision, holding that that the State failed to meet its burden of proving a violation of K.S.A. 8-1522(a).
[Update: the state did not file a PR and the mandate issued on November 19, 2009.]

Monday, October 12, 2009

Mandatory drug treatment is mandatory

Christina Waugh and Michelle Davis won in State v. Andelt, Nos. 98,699/98,665 (Kan. October 9, 2009), reversing the district court's denial of mandatory drug treatment in each case. Even though the defendant qualified for SB 123 treatment, the district court denied drug treatment in each case because the offenses were committed while the defendant was on parole.

The KSC framed the question as "whether a defendant convicted of a felony drug offense qualifying for a certified drug abuse treatment program under K.S.A. 21-4729 may be sentenced to prison under K.S.A. 21-4603d(f)(1), which authorizes a departure prison sentence where the underlying offense was committed while the defendant is on felony parole." The court held:
We conclude that the plain language of K.S.A. 21-4729 and K.S.A. 21-4603d makes certified drug abuse treatment programs mandatory for individuals who qualify for such programs under K.S.A. 21-4729. A district court does not have discretion to sentence an offender otherwise qualifying for a drug abuse treatment program to imprisonment.
The court adopted the COA's reasoning set forth in State v. Casey, 42 Kan. App. 2d 309, 211 P.3d 847 (2009), blogged about here.

Thus, if a defendant qualifies for SB 123 drug treatment, the sentencing court is required to order drug treatment despite the existence of any special sentencing rule that might make the sentence presumptive imprisonment.

Sunday, October 11, 2009

Four trials is enough for Judge Tatum

Here is an Olathe News article reporting that Scott Toth won a judgment of acquittal from Judge Tatum in State v. Hudson, finally ending a Johnson County assault on a LEO prosecution after three hung juries and a mistrial based on misconduct.

Friday, October 09, 2009

Melendez-Diaz in Kansas

Rachel Pickering won in State v. Laturner, No. 96,086 (Kan. Oct. 9, 2009), obtaining a new trial in a Cherokee County drug prosecution. The appeal involved the constitutionality of K.S.A. 22-3437, which allows the prosecution to admit a lab report in lieu of live testimony. A substantially similar issue was decided this summer by the SCOTUS in Melendez-Diaz v. Massachusetts, No. 07-591 (June 25, 2009), holding that admission of certificates of laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity violated petitioner’s Sixth Amendment right to confront the witnesses.

The KSC applied Melendez-Diaz and held that the certificates used under K.S.A. 22-3437 are testimonial and implicate the Confrontation Clause:
Therefore, we conclude that the KBI laboratory analyst's use of the language required by K.S.A. 53-601 and the form prescribed by K.S.A. 22-3437 along with the certificate's reference to those two statutes indicates the certificate was intended to be and was "functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination'" and was "'"made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."' As such, the KBI laboratory analyst's certificate was testimonial, giving rise to Laturner's rights under the Confrontation Clause. Consequently, absent a showing that the KBI analyst was unavailable to testify at trial and that Laturner had a prior opportunity to cross-examine the analyst, Laturner was entitled to be confronted with the analyst at trial unless that right was waived.

The KSC then had to consider whether the statute was unconstitutional. Melendez-Diaz itself recognized that states might pass legislation that requires pretrial notice of a desire to have the state's witness appear at trial and that waiver could be construed from failure to provide such statutory notice. But K.S.A. 22-3437 requires more than notice--it required an "objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial."

This requirement had been upheld by the KSC in 1999 in State v. Crow (discussed in this previous blog post on this case). The KSC reviewed Crow and its bases and concluded they were no longer viable after Crawford and Melendez-Diaz:
This reasoning, grounded on the Roberts test, was undercut by Crawford. As explained in Melendez-Diaz, it does not matter how reliable the evidence may be; a defendant still has a right to cross-examine the witness.

The KSC then reviewed other jurisdictions' resoloution of the issue and concluded that Crow could not survive:
The purpose of cross-examination, in part, is to explore weaknesses in the reliability of a witness' testimony and, when that witness is a laboratory analyst, in the results of forensic tests. Demanding that a defendant determine the nature of an objection to the reliability of the tests before questioning the witness imposes a difficult burden. Yet, this burden would have to be met to satisfy the Crow requirement that the objection have an indicia of merit, and merely stating an intent to attack reliability of the report would fall short. Moreover, the justification for imposing the requirement that there be an indicia of merit–i.e., the belief that a confrontation right only arose if the hearsay evidence did not have particularized guarantees of trustworthiness–is no longer valid in light of Crawford. We, therefore, abrogate and overrule the holding in Crow and conclude that decision imposes an improper hurdle in the assertion of a defendant's rights under the Confrontation Clause as interpreted in Crawford and subsequent decisions.

Finally, the KSC considered whether the statute could be saved in any part. Untimately, the KSC held that it could sever the portions of K.S.A. 22-3437 that require anything more than a Confrontation Clause objection to invoke the protection of the Confrontation Clause. Because the statute, as applied to Mr. Laturner including the offending language, was unconstitutional, the KSC reversed and remanded for a new trial either excluding the improper hearsay or providing confrontation.

As an aside, the KSC did recognize that the SCOTUS is hearing a case this term related to the reach of notice-and-demand statutes. Here is coverage of that case at the Confrontation Blog. The KSC agreed with Rachel that because of the differences between K.S.A. 22-3437 and the statute at issue in Briscoe, that decision would not impact today's decision in Kansas.

Improper hearsay requires new trial

Carl Folsom won in State v. Kelley, No. No. 100,255 (Kan. App. Oct. 9, 2009), obtaining a new trial in a Sedgwick County rape prosecution. The reversal was based upon the state's admission of hearsay statements on the basis that it was planning to call the declarant, but then failing to call the declarant:

To summarize, in a criminal proceeding, the first step in analyzing whether a statement is admissible hearsay is to determine whether the statement was testimonial. Assuming the statement was testimonial, the declarant must actually testify at the hearing in order for a hearsay statement to be admissible. The declarant's mere presence at the hearing is insufficient for the hearsay statement to be admissible in a criminal proceeding. While it is the better practice to call the declarant as a witness before the hearsay statement is offered into evidence, the failure to do so does not violate the Confrontation Clause as long as the declarant actually testifies at the hearing.

Here, Naomi's statements were made to a Wichita EMCU detective conducting an investigation of the rape allegations K.C.R. had made against Kelley. Therefore, Naomi's statements were made during the course of a police interrogation and an objective witness would reasonably believe that her statements would be available for use at a later trial, making her statements testimonial. Because the statements were testimonial, Kelley's rights under the Confrontation Clause are implicated and the Fisher/Davis rule applies.

Under the Fisher/Davis rule, Naomi needed to testify as a witness, either before or after Mar testified, in order to render her statements to Mar admissible. Because Naomi did not actually testify as a witness at trial, her hearsay statements should not have been admitted into evidence.

The COA went on the reject the state's claim that Mr. Kelley had failed to preserve this issue for appeal and that he acquiesced by cross-examining the witness that did appear in court. The COA went on to hold that the error was not harmless:

Considering K.C.R.'s recantation of her allegations against Kelley, the lack of substantial physical evidence supporting the allegations, and the significance of Naomi's hearsay statements to Mar, we are unable to conclude beyond a reasonable doubt that the inadmissible hearsay testimony had little, if any, likelihood of having changed the result of the trial.

A good case, both on procedure and substance.

[Update: the state did not file a PR and the mandate issued on November 12, 2009.]

Yet another Gant win

Maradeth Frederick won in State v. Keaton, No. 101,480 (Kan. App. Oct. 2, 2009)(unpublished), affirming Judge Fleming's suppression order in a Labette County case. The COA noted that "had been handcuffed and placed in the back of a patrol car by the time of the search" and held this was a straightforward Gant issue and affirmed the suppression order.

[Update: the state did not file a PR and the mandate issued on November 5, 2009.]

Agg habitual sex offender sentences reversed

Shawn Minihan won in State v. Trautloff, No. 100,425 (Kan. Oct. 9, 2009), a Franklin County rape/agg crim sodomy case, remanding one count of sexual exploitation of a child for a new trial and vacating and remanding four life sentences without possibility of parole imposed under the aggravated habitual sex offender provisions of K.S.A. 21-4642(c)(1). On the sentencing issue, the KSC held that although Mr. Trautloff had two prior convictions for listed sex offenses, they were entered on the same day and therefore constituted a single "conviction event." Under the statute, imposition of life without possibility of parole requires two prior conviction events. As a result, the KSC vacated the sentences for rape agg criminal sodomy, and aggravated indecent liberties and remanded for resentencing, although it noted that regardless of what sentencing provision is ultimately used, given his age, Mr. Trautloff is not likely to ever be released from prison.

On the sexual exploitation with a child conviction, the KSC observed that the state charged Mr. Trautloff with sexual exploitation by unlawfully displaying a picture of a child under the age of 14. Although the KSC acknowledged that a person can be convicted of sexual exploitation by many alternative means to "display," (like procuring, selling, providing, selling, transmitting, etc), because the state charged display, it was bound to prove display:
By including the phrase "displayed such picture" in the complaint, the State limited itself to a theory that Trautloff committed only that version of the offense. The wording of a complaint is binding on the State in pursuing its theory before a jury.

But when instructing the jury, the district court included all possible means for conviction under the statute defining sexual exploitation. The KSC held that, because there was extensive evidence of alternative means, it could not conclude that the overbroad instruction was harmless:
The broad instruction allowed the jury to convict Trautloff of displaying or procuring or producing a photograph that included sexually explicit conduct by a child under 14 years of age. It did not compel the jury to find that Trautloff displayed a picture, as alleged in the complaint. As previously described, the evidence of "procuring" or "producing" a photograph was direct and overwhelming, while the evidence that Trautloff "displayed" a photograph or video was minimal and circumstantial. Although Trautloff did not object to the instruction at trial, the instruction was clearly erroneous because we cannot be confident that the jury convicted him only on the basis of the single alternative theory charged and instructed upon. There exists a real possibility that the jury would have rendered a different verdict if the district court had instructed only as to displaying.
So, the KSC remanded for a new trial on sexual exploitation of a child.

Here is coverage from the Lawrence Journal World.

Officers exceeded scope of search for safety purposes

Washburn student intern Sean Whittmore and I won in State v. Vicki Johnson, No. 100,728 (Kan. App. Oct. 9, 2009), reversing a Sedgwick County drug conviction. Officers responded to a report of a possible burglary, but quickly learned the the woman involved was the tenant's girlfriend, who was there with permission. Officers proceeded to search Ms. Johnson, including her purse and a cigarette package in her purse for officer safety
The question for us is whether, once Officer Tucker had seized the cigarette package and thereby removed the package from the defendant's possession, Officer Tucker still had sufficient officer safety concerns under Terry to justify his search of the cigarette package and purse. Decisions from other jurisdictions indicate that "[g]enerally, once a purse is no longer in its owner's possession, a protective search of the purse is not justified pursuant to Terry."
The COA concludes that, in these circumstances, although a safety search was barely justified at its inception, the officer exceeded the scope of a permissible safety search:
Here, by the time of the search and seizure, this defendant had offered Officer Tucker a plausible innocent explanation for her presence at the apartment, which was verified by the landlord. Tucker's concerns were raised when the defendant retrieved the cigarette package after Tucker told the defendant not to reach in her purse. Tucker cited his previous experience with individuals who would hide razors in cigarette packages. However, such individuals were involved in drugs and prostitution, neither of which Tucker connected with this defendant. This leads us to the conclusion Tucker's search of the cigarette package was an impermissible warrantless search.
As a result, the majority reverses and orders suppression.

[Here is coverage at]

[Update: the state filed a PR on November 9, 2009.]

[Further update: the KSC granted the state's PR and Ms. Johnson's cross-PR on July 1, 2010. The case will likely be argued late Fall 2010.]

[Further update: the KSC affirmed the COA on March 2, 2012.  Here is blog coverage.]

Monday, October 05, 2009

Sticking nose inside car constitutes search

Federal public defender Stephen P. McCue won in United States v. Montes-Ramos, No. 07-2027 (10th Cir. Oct. 1, 2009)(unpublished), obtaining suppression in a New Mexico federal possession of marijuana with intent to distribute prosecution. The Tenth Circuit addressed two issues: (1) is it a "search" for an officer to stick his nose just a few inches inside a car to see if he can smell drugs and (2) if so, was it unreasonable in this case. Although the court indicates the answer to the first question is not a simple question, it concludes that "a police officer's intentional act of intruding a vehicle's air space, even if by only a few inches, constitutes a search within the meaning of the Fourth Amendment." On the issue of the reasonableness of the search, the court notes that warrantless searches are presumed to be unreasonable, with exceptions:
If [Officer] Rodriguez reasonably suspected Montes-Ramos was transporting illegal narcotics, he could have detained Montes-Ramos and investigated further. He could have asked if Montes-Ramos was transporting narcotics. He could have asked for consent to search the vehicle. He could have stood at the car door, waiting for the smell of marijuana to waft out the window. He could have called for a drug dog to sniff the exterior of the vehicle. And if his suspicion about drug trafficking caused him to fear for his safety, he could have removed Montes-Ramos from his vehicle, or looked (perhaps even slightly intruded) into the vehicle to determine whether there were weapons within Montes-Ramos' reach. He could not, however, engage in a warrantless sniff search for drugs-even a minimally intrusive one-unless he had probable cause to believe the vehicle contained contraband or evidence of a crime.
Here is coverage at

Cruel and Unusual Punishment

Here is a blog post from Doug Berman at Sentencing Law and Policy reporting that the Iowa Supreme Court had questions under its state constitution about the legality of a 25 year sentence for statutory rape and remanded for findings as applied to that defendant. I thought this was a useful reminder in a sentencing landscape that is varying day by day. Although we have raised a lot of facial challenges to certain sentences in Jessica's Laws cases, don't forget about as applied challenges as well. It may be the only thing you can argue in a case where a sentence is otherwise set by statute.

Thursday, October 01, 2009

Rape acquittal in Reno County

Here is a Hutchinson News article reporting that Sarah Sweet-McKinnon won an acquittal in State v. Bodine, ending a Reno County rape/agg sex battery prosecution.