Monday, August 30, 2010

Jessica's Law conviction reversed based on coercive police interview

Ryan Eddinger won in State v. Stone, No. 100,076 (Kan. Aug. 20, 2010), obtaining a new trial in a Sedgwick County “Jessica’s Law” prosecution. The KSC reversed Stone’s conviction for aggravated indecent liberties with a child, holding that a tape recording of the police interrogation of him should not have been admitted into evidence.

The court held that Detective Kelly Mar’s interviewing techniques rendered Stone’s statement inadmissible:

The detective's repeated insistence that the truth could only be the version told by the victim, combined with her unequivocal statements that there was semen on the victim's pajamas and her belief that the DNA in it would match Stone's, followed by statements to the effect that only confessing could keep him out of jail or affect the length of his jail term made the circumstances unduly coercive. Moreover, a close examination of the interrogation reveals that Stone did not volunteer facts but rather he adopted facts as they were suggested to him by the detective and as her insistence that he tell "the truth" became more adamant.

. . .

Another tactic used by Detective Mar involved minimizing the seriousness of the accusations against Stone and indicating that a confession would corroborate that he was not a child sex predator[.]

. . .

These statements cumulatively and strongly suggested to Stone that only confessing to the "truth" as the detective saw it would save him from being painted as a "preying pedophile" and, in turn, affect his sentence.

The court held that the cumulative effect of Detective Mar’s interviewing techniques rendered Stone’s statement inadmissible:

While any one of the circumstances surrounding this interrogation, standing alone—Stone's condition, Detective Mar's misleading statements about the semen on the pajama top, her statements that the length of his sentence could only be affected by his telling the "truth," the implications he would be viewed as a sexual predator unless he confessed—might not have led us to conclude Stone's statements were coerced, a review of the audio recording taking into account all of these circumstances, as the law requires, leads us to conclude as a matter of law that Stone's statements were not the product of his free and independent will and that it was error to admit them at trial.

Based on the improper admission of the statement into evidence, the court reversed Stone's convictions and remanded for a new trial.

Upward departure set aside

Jessica J. Travis won in State v. Horn, No. 97,872 (Kan. Aug. 20, 2010), vacating an upward durational depature sentenced imposed in a Johnson County sex offense prosecution. The state charged Mr. Horn with several sex offenses and also filed a motion alleging an aggravating factor that would support imposition of an upward durational departure sentence. Mr. Horn pleaded guilty to the charged offenses, but not to the aggravting factors. The district court held a jury proceeding on the aggravating factors, which the jury found true beyond a reasonable doubt. The district court then imposed the maximum upward durational departure sentence.

The KSC held that the district court erred by holding the depature trial after Mr. Horn had waived his trial jury. In reaching this conclusion, the KSC had to "dissect" several sentencing statutes:

As Horn points out, K.S.A. 21-4718(b)(4) appears to contemplate the use of an existing trial jury in the separate departure sentence proceeding. The provision begins by declaring that a separate departure sentence proceeding "shall be conducted by the court before the trial jury as soon as practicable."

. . . .

The next sentence clarifies that the jury for the upward durational departure sentence proceeding may be waived in the same manner as provided for the waiver of the trial jury. Then, the last sentence of K.S.A. 21-4718(b)(4) provides explicit directions: "If the jury at the upward durational departure sentence proceeding has been waived or the trial jury has been waived, the upward durational departure sentence proceeding shall be conducted by the court."

It is difficult to conceive of any language which would have made the provision any more clear and unambiguous that a defendant's waiver of his or her right to a jury trial on the issue of guilt mandates that the court, not a jury, will hear the evidence and make the factual findings on the existence of the asserted sentence-enhancing factor. The last two sentences of K.S.A. 21-4718(b)(4) separately refer to "the jury at the upward durational departure sentence proceeding" and "the trial jury." That express distinction only makes sense if "trial jury" was intended to mean a jury that is functioning to determine the defendant's guilt, as opposed to a jury that
is performing a post-conviction function with respect to a departure.

. . . .

On appeal, the State has apparently now come to the same conclusion on the meaning of the statute. After emphasizing essentially the same statutory language in K.S.A. 21-4718(b)(4) as we have highlighted above, the State declares in its brief that "[t]he upward durational departure sentence proceeding should have been conducted before the court." However, the State argues that the use of a jury in this case does not require reversal because Horn invited the error and because Horn received more process than that to which he was due. While such arguments are seductive, the fact remains that the district court did not employ the explicit procedure for upward durational departure sentence proceedings mandated by the legislature. Although the specific holding in Kessler was that after the statutory procedure for imposing upward durational departure sentences was declared unconstitutional, the district court was left with no authority to impose such a sentence, the opinion also clarified that "[a] district court's authority to impose sentence is controlled by statute." Accordingly, the employment of a sentencing procedure which does not comply with the applicable statute must be deemed unauthorized and erroneous.

Furthermore, because Mr. Horn did not validly waive his right to a jury trial on the departure factors, the KSC holds that the remedy in this case is resentencing without a depature:

To summarize, if a defendant waives a trial jury by pleading guilty to the criminal offense and the district court has accepted the plea and the trial jury waiver, K.S.A. 21-4718(b)(4) directs that an upward durational departure sentence proceeding is to be conducted by the court, not a jury. However, if the defendant has not waived his or her right to a jury for the upward durational departure sentence proceeding, a court conducted departure proceeding violates the constitutional mandates of Apprendi and Gould. A waiver of the trial jury, standing alone, does not effectively waive the defendant's right to have a jury for the upward durational departure
sentence proceeding.

Does this mean that if a defendant gets a reversal on an upward durational depature trial on evidentiary or instructional grounds, remedy is vacation of upward departure, not new trial?

There were a lot of other issues raised related to the upward durational depature trial, but because the KSC had vacated the upward depature, it did not need to reach them.

Misconduct and ineffective assistance of counsel requires new trial

Michael Whalen won in In re Ontiberos, No. 100,362 (Kan. App. Aug. 27, 2010), obtaining a new trial in a Sedgwick County Sexually Violent Predator Act proceeding.

There is a lot in this decision, including recognition of a statutory right to effective assistance of counsel in a SVPA proceeding and procedural guidance for such a claim. The COA summarized the decision this way:
In the jury trial of this sexually violent predator case, the parties agreed to have many records available so the two experts could refer to them. The documents were not meant for jury consideration, and the court did not admit them into evidence but did preserve them for the appellate record. Contrary to this agreement, the State's attorney used the documents 12 times during the cross-examination of the respondent, Robert Ontiberos. By doing so, he made the content of some of the records available to the jury. Further, the State's attorney used a nonexistent prison disciplinary report involving a weapon to discredit the respondent. Respondent's court-appointed lawyer never objected to any of the State's actions. Our Supreme Court has ruled that for impeachment, it is highly improper for counsel to read or refer to the contents of written matters not in evidence. Based on the conduct of the State's attorney, combined with the inaction of Ontiberos's defense counsel, we hold Ontiberos did not receive a fair trial. We reverse and remand for a new trial.
The COA had especially harsh words for the prosecutor's use of non-existent reports as a trial tactic:
The State's use of a nonexistent Department of Corrections disciplinary finding, ostensibly painting Ontiberos as being violent because it involved a homemade prison shank, cannot be condoned in any fashion. Simply put, attorneys are not allowed to make up evidence and use it to advance their cause. Even though our rules of evidence provide that all relevant evidence is admissible, the evidence must be real. We can fathom no greater prejudice to a respondent than the use of nonexistent evidence by the State in the case against the respondent.
Here is coverage in the Wichita Eagle.

[Update: here is later coverage in the Wichita Eagle noting that the prosecution looked further and found the evidence that was suggested at trial in the file. As a result, the prosecutor is seeking to rehear the case, at least with regard to the comments about the prosecutor. The article suggests that Michael Whalen is not opposed.]

[Further update: here is even later coverage in the Wichita Eagle reporting that the COA withdrew its original opinion and has set additional argument. Here is coverage--including a copy of the COA order, on What the Judge Ate for Breakfast.]

[Further update: after granting the state's PR, the KSC reversed and remanded the case for a new trial on August 17, 2012, blogged about here.]

Thursday, August 26, 2010

Possible change to elected district judges in NE Kansas

Here is a Leavenworth Times article reporting that the judicial selection method will be up for decision for district judges in the First Judicial District (covering Leavenworth and Atchison Counties). They currently have a nonpartisan selection method, but a petition has been submitted to change to partisan election.

This has come up a couple of times in recent years in Shawnee County and failed. I wonder what the last switch was?

Wednesday, August 25, 2010

Washington has a state constitution

In State v. Tibbles, No. 80308-1 (Wash. Aug. 5, 2010), the Washington Supreme Court held that the exigent circumstances doctrine didn't apply to a warrantless car search under its state constitution. The circumstances routinely occur in Kansas--officers stop a car and smell marijuana. Courts, including the Tibbles Court, hold that this constitutes probable cause. But the remaining question is whether there are exigent circumstances to dispense with the warrant requirement:

Considering the relevant factors in determining an exigency, the State has not shown that exigent circumstances justified the warrantless search of Tibbles's car. The situation in this case stands in sharp contrast to other situations in which we have held exigent circumstances to exist. In Patterson, we concluded that exigent circumstances justified entry into a parked vehicle where a burglary had very recently been committed, the suspect was likely in the immediate vicinity of the vehicle because the officers discovered the vehicle a mere five minutes after the robbery, information in the automobile could help identify and locate the suspect, and a delay in searching the vehicle could have allowed the suspect to flee the area. Similarly, we found exigencies in Smith where there was a tanker truck filled with 1,000 gallons of a dangerous chemical parked next to a house, a rifle had been seen in the house, the rifle went missing, and the two known occupants of the house did not possess the rifle.

On the stipulated facts in this case, the State has not shown any need for particular haste. The suspect was not fleeing, nor has there been any showing that he presented a risk of flight. While there was probable cause that evidence of contraband existed in the vehicle, Tibbles was outside the vehicle when Trooper Larsen searched it and the State has not established that the destruction of evidence was imminent. Additionally, the State has not established that obtaining a warrant was otherwise impracticable. For example, we do not know whether Larsen could have used a cell phone or radio to procure a telephonic warrant or whether he could have called backup to secure the scene while Larsen went to procure a warrant. The record contains no evidence of what Larsen would have had to do to procure a warrant at the time of the search.

With regard to safety concerns, the stipulated facts do not establish that Trooper Larsen felt he or anyone else was in danger as a result of Tibbles's actions. Tibbles was not stopped on suspicion of impaired driving, but rather for a defective taillight. Tibbles was alone, was compliant with the trooper's requests, and moreover, was released rather than arrested and allowed to drive away even after Trooper Larsen searched the car and seized the marijuana and drug paraphernalia. It is the State's burden to establish that one of the exceptions to the warrant requirement applies. In the case of hot pursuit or similar situations presenting a risk to officer safety, the State's burden can be met by establishing the immediacy of the risk of flight or risk of harm. The facts, as presented here, do not implicate these concerns, nor has the State attempted to show why it was impracticable for Trooper Larsen to obtain a warrant before conducting his search. To find exigent circumstances based
on these bare facts would set the stage for the exigent circumstances exception to swallow the general warrant requirement. It would give the erroneous impression that an exigency may be based on little more than a late-night stop for defective equipment, an officer working alone, and circumstances indicating possible drug possession. This very likely describes any number of encounters between law enforcement and private citizens that occur everyday.
"Any number of encounters between law enforcement and private citizens that occur everyday."

Thursday, August 19, 2010

New Jersey has a state constitution

Hat tip to In State v. Minitee, A-5002-06T4 (N.J. App. August 16, 2010), the New Jersey Superior Court, Appellate Division held that the New Jersey Constitution provides greater protection than the Fourth Amendment with regard to the automobile exception:

We harmonize the seemingly inconsistent holdings in Martin and Pena-Flores by finding that the exigent circumstances that existed at the scene only permitted the police to seize the vehicle and transport it to a secure location. Thereafter, the police were constitutionally required to obtain a warrant before searching the vehicle. This approach distinguishes between, and guards against, unreasonable searches and unreasonable seizures, the two fundamental protections embodied in Article I, Paragraph 7 of our State Constitution.

We consider the United States Supreme Court's decision in Chambers v. Maroney, 399 U.S. 42, 51-52, (1970), permitting warrantless searches of vehicles impounded by the police, to constitute binding authority only under the Fourth Amendment of the United States Constitution. Under Article I, Paragraph 7 of our State's Constitution, as interpreted by the Court in Pena-Flores, however, the police must, where practicable, obtain a warrant before searching a vehicle that has been seized and impounded under the exigent circumstances exception to the warrant requirement.

Article I, Paragraph 7 of the New Jersey Constitution states the following:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.
The Kansas Constitution Bill of Rights, Section 15 states the following:
The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.

Chief Judge Rulon to retire

Here is the press release announcing that Chief Judge Gary Rulon will retire at the end of his term this upcoming January after 30 years of service on the bench.

Monday, August 16, 2010

Amen and amen!

Chief Judge Kozinzki from the Ninth Circuit, dissenting from denial of a motion for en banc hearing in United States v. Pineda-Moreno, No. 08-30385 (9th Cir. 2010), nicely articulates the gap between a lot of judges in our country and the real world:

The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.

The very rich will still be able to protect their privacy with the aid of electric gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling. Open driveways, unenclosed porches, basement doors left unlocked, back doors left ajar, yard gates left unlatched, garage doors that don’t quite close, ladders propped up under an open window will all be considered invitations for police to sneak in on the theory that a neighborhood child might, in which case, the homeowner “would have no grounds to complain.”

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.
I've recently had this same type of thought with regard to a lot of the recent federal and state jurisprudence on the right to counsel, the right to silence, and the right to protection under the Fourth Amendment. Courts rationalize that, if you aren't smart enough or educated enough or rich enough to enforce your own rights, too bad. But the Rule of Law (including the Constitution), should protect everybody, not just the rich (who can afford and understand the importance of a lawyer) and the educated.

"Micturate on the azaleas?" Ah, thank you Chief Judge Alex "Vocabulary Word of the Day" Kozinzki.

Hat tip to

Thursday, August 12, 2010

Surgical application of harmless error

Rick Kittel and KU Defender Project student Drew Cummings won in State v. Brown, No. 101,819 (Kan. App. Aug. 6, 2010), obtaining a partial reversal in a Wyandotte County aggravated burglary prosecution. The substance of the issue involved a Boggs (blogged about here) issue:
In Boggs, the Kansas Supreme Court stated that the crucial distinction in admitting other crimes evidence under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime but whether the defendant has claimed that his or her actions were innocent. When the defendant's acts are susceptible to two interpretations—one innocent and one criminal—then the intent with which the actions were committed becomes the critical element in determining their character. However, when a defendant does not assert that his or her actions were innocent but rather presents some other defense, there is no reason to admit evidence of other crimes or civil wrongs to prove intent. Here, Brown did not assert an innocent explanation for being inside the Ford residence on January 12, 2006. To the contrary, Brown testified at trial and generally denied entering the residence for any reason. Thus, although Brown's intent to commit a theft inside the residence was a material fact that the State was required to prove beyond a reasonable doubt, Brown did not dispute this particular material fact by asserting an innocent explanation for his actions as required in Boggs. Brown's not guilty plea was insufficient to place his intent in dispute at trial for purposes of admitting K.S.A. 60-455 evidence.

The State acknowledges that generally intent is only in dispute when the defendant asserts an innocent explanation for his or her actions. Nevertheless, the State argues in its brief that "this Court should broaden the requirements for admissibility of K.S.A. 60-455 evidence relevant to intent in burglary and/or aggravated burglary cases, even if prior jurisprudence does not currently demand the same." We decline the State's request to broaden the requirements for admissibility of evidence under K.S.A. 60-455. Intent becomes a disputed issue only when the defendant asserts an innocent explanation for his or her actions. Because Brown did not offer an innocent explanation for his actions, we conclude the district court erred by admitting evidence of his prior attempted burglary conviction in order to prove intent.
What was interesting to the appellate procedure geek in me was the precise application of the harmless error rule to this case. The COA reviewed the evidence and held that the error was reversible as to count one (aggravated burglary). But, because the evidence of a second incident was "substantially more compelling than the evidence supporting Count I," the COA held the error harmless as to counts two and three (burglary and theft).

I think this is the right approach with regard to harmless error. We tell juries all the time that each count is separate and errors may have different effects on different counts.

This also effectively shows why facts do matter in appellate cases (at least in the outcome, which is what matters).

[Update: the state did not file a PR and the mandate issued on September 9, 2010.]

Friday, August 06, 2010

Chief Justice Davis passes

We had just blogged about Chief Justice Davis' retirement, when we learned the sad news that he passed away this week. Here is a Topeka Capital-Journal article announcing the services for Chief Justice Davis.

Wednesday, August 04, 2010

Rose wins seat on bench in Reno County

Here is a Hutch News article reporting that City Councilwoman Trish Rose defeated Magistrate Judge Randy McEwen for the district court seat being vacated by Judge Rome at the end of the year.

Tuesday, August 03, 2010

Chief Justice Davis retires

Here is the press release announcing that KSC Chief Justice Robert Davis has announced his retirement. As the release states, Chief Justice Davis has been battling health issues for some time now.

Per the Kansas Constitution, Justice Lawton Nuss becomes Chief Justice immediately. The Supreme Court Nominating Commission will meet and forward names to Governor Parkinson in the next few months. We will update on this story.

Even more great work by defenders on appeal

We try to update on most favorable appellate cases, but we often don't get notice of unpublished affirmances in state's appeals, because the ADO is usually not counsel of record. Here is a search of the first five months of 2010, which turned up a lot of great trial/appellate work by defenders. We posted on them (retroactively dated to around when the decision came out), but we thought we would also just list and link them here:

State v. Hodge, No. 102,542 (Feb. 12, 2010); Kenneth B. Miller & Kevin P. Shepherd; affirming Judge Schmidt's suppression order based on misleading statements in affidavit

State v. Jordan, No. 102,846 (March 5, 2010); David N. Harger; affirming Judge Dickinson's suppression order based on illegal search of a dorm room

State v. Shepard, No. 101,106 (March 12, 2010); Tony A. Potter; affirming Judge Toepfer's dismissal of DUI prosecution on constitutional speedy trial grounds

State v. Wheeler, No. 102,638 (March 26, 2010); Brenda M. Jordan; affirming Judge Ireland's suppression order based on improper search of trash

State v. Martin, Case No. 102,639 (March 26, 2010); Troy V. Huser; affirming Judge Ireland's suppression order based on improper search of trash

State v. Young, No. 102,497 (April 8, 2010); Kristopher M. Kellim; affirming Judge Hornbaker's suppression order based on an illegal search of a car trunk

Be sure to let us know if there are others that should be mentioned!