Friday, February 26, 2010

IAC finding after second appeal

Michael Whalen won in Swenson v. State, No. 101,279 (Kan. App. Feb. 19, 2010), obtaining an order for a new trial in a Sedgwick County attempted first-degree murder case. Michael already had to win a previous appeal just to get an evidentiary hearing (blogged about here) and then the district court denied relief after that hearing. The COA held that trial counsel did not have conduct a sufficient investigation regarding a potentially exculpatory witness:
The decision whether to call a particular witness is a tactical decision which rests in the province of trial counsel. However, trial counsel has a duty to make reasonable investigations and cannot strategically decide against pursuing a line of investigation when he or she has not yet obtained the facts upon which to base that decision.

Prior to trial, counsel knew Turner was a potentially exculpatory witness but did not feel it was necessary to follow up or interview Turner about the contents of the letter because of Turner's criminal history. Had counsel done so, however, counsel would have learned that the person Hooks implicated in his conversation with Turner was an individual who was with Swenson when the shooting occurred. This information was included in a notarized affidavit from Turner dated February 6, 2003, which was attached to Swenson's 60-1507 motion. To that end, Hooks testified that a black man named Rodney was with Swenson at the time of the shooting. Hooks further testified that he had consumed alcohol and smoked marijuana laced with cocaine before he was shot. Although Hooks indicated that he was not so “messed up” that he failed to recognize people, the jury could have found that Hooks was impaired by the combination of drugs and alcohol. If Turner would have testified at trial about the information revealed in his letter and affidavit, this testimony might have been enough to convince the jury that Swenson did not shoot Hooks as the State alleged, regardless of Turner's criminal history.

While trial counsel is afforded deference to not investigate, his or her decision not to do so must be reasonable under the circumstances. Here, trial counsel had no other witnesses available to testify in Swenson's defense. Turner may very well have been lying or simply unbelievable in person, but without conducting any investigation,
trial counsel had no reasonable factual basis on which to immediately determine that Turner's credibility would harm Swenson's defense.

This is a nice example of how hard it is to get relief in these types of cases, even though the right to effective assistance of counsel is supposedly the most fundamental right protecting persons against wrongful convictions.

[Update: the state filed a PR on March 22, 2010.]

[Further update: the KSC denied the state's PR and the mandate issued on May 20, 2010.]

[Further update: here is a blog post regarding the eventual discharge of Mr. Swenson after eleven years in prison.]

Friday, February 19, 2010

Must instruct jurors on elements of predicate offense

Rick Kittel and KU Defender Project student Dan Runge won in State v. Richardson, No. 98,572 (Kan. Feb. 19, 2010), obtaining a new trial in a Wyandotte County felony fleeing or attempting to elude prosecution. The district court gave a pattern elements instruction including "That the defendant committed five or more moving violations." As noted by the KSC, the instruction did not explain or define what constitutes a moving violation.

The parties agreed that it was error to fail to specify the predicate moving violations and to inform the jury of the elements of those violations. But because defense counsel did not object, the KSC reviewed for clear error. The KSC acknowledged that even a missing element can be harmless error, but held that this instructional error is clear error:
This court cannot know whether the jury found that Richardson committed at least five moving violations, since they were not identified or defined to the jury, and we do not know which specific acts the jury deemed to be moving violations. It may be that the jury included speeding violations that are excluded from the list of moving violations compiled by the Kansas Department of Revenue. It may also be that the jury included acts that are not even statutory infractions, such as being in an intersection when a light is yellow.

We will not step into the shoes of the jurors and convict Richardson of five moving violations of our choice--the jury did not make the necessary determination of guilty beyond a reasonable doubt on all the elements of the crime charged.
This is potentially important in some other cases like burglary or conspiracy too.

Wednesday, February 17, 2010

Misleading affidavit invalidates search warrant

Kenneth B. Miller and Kevin P. Shepherd won in State v. Hodge, No. 102,542 (Kan. App. Feb. 12, 2010), affirming Judge Schmidt's suppression ruling in a Shawnee County sexual exploitation and child pornography prosecution. The district court found that the affidavit submitted by the investigator requesting a search warrant had several material omissions and misstatements:

The COA reviewed the record and held that the district court's decision did not arbitrarily disregard undisputed evidence, nor was there any evidence of extrinsic considerations such as bias, passion, or prejudice:
Lindsay's affidavit was misleading. When the district court revised Lindsay's affidavit by adding necessary information that was missing from it and correcting misleading information in the affidavit, it concluded that the revised affidavit did not support a showing of probable cause. We agree. The district court did not err in this conclusion. The revised affidavit would not provide probable cause to believe that if Hodge had engaged in aggravated indecent liberties with a child, any evidence of this would be found on his computer.

Finally, the COA rejected the state's claim that the good-faith exception should save this search:
The State's sole argument on this issue is that the district court incorrectly found that Lindsay deliberately misled the magistrate. Lindsay addressed this issue in her testimony at the hearing. Her credibility was a matter for the district court, not us. The district court obviously did not believe that she did not intend to hide information. As stated by the district court, “the purposeful omission of material facts was misleading.” We find support in the record for the district court discrediting Lindsay's testimony on this point. The district court did not err in finding that the Leon exception does not apply.

[Update: the state did not file a PR and the mandate issued on March 18, 2010.]

[Further update: on March 16, 2010, the district court dismissed the Shawnee County prosecution.]

Tuesday, February 16, 2010

Must show waiver of right to counsel to use for enhancement

Matthew Edge won in State v. Hughes, No. 98,716 (Kan. Feb. 12, 2010), reversing a sentence in a Sedgwick County agg escape prosecution. The main issue was whether certain Dodge City municipal convictions should be included in criminal history. Mr. Hughes had signed a waiver form, but it did not include a certification by the judge, like one included in a sample waiver form previously included in a previous KSC case, that the defendant was "fully informed of the charges against him or her and of the accused's right to have counsel . . . and that the accused has executed the above waiver in my presence, after its meaning and effect have been fully explained to the accused."
Ultimately, however, we find that [In re Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985)] does not require that municipal courts use forms identical to the sample included in the opinion. At the heart of Gilchrist was finding a way to assure that a defendant's right to counsel was adequately protected without unduly burdening the municipal courts. What is clear after Gilchrist is that because municipal courts are not courts of record, a written document should be obtained so that there is evidence that the defendant was fully infomrd of his or her rights to counsel and that any waiver thereof was knowingly and intelligently made.

What is apparent from Gilchrist is that the evidence in the record must answer two critical questions in order to establish knowing and voluntary waiver of counsel: first, whether the defendant has been fully advised and properly informed of his or her right to counsel and, second, whether, upon having been fully advised and properly informed, the defendant made a clear determination not to have counsel represent him or her before the court.

Applying this law, the KSC reviewed the waiver in Mr. Hughes' case:
The waiver form utilized by the Dodge City Municipal Court is sufficient in establishing what Hughes may have believed his rights to be and a voluntary waiver of those perceived rights. Absent however, is any verification or validation of what he was told, a function that the Gilchrist certification satisfies. It is not up to the defendant to know what "fully advise" means. It is the judge who is burdened with assuiring that Hughes' rights have been adequately protected. Recently, we clarified that when a defendant exercises his or her statutory right to challenge the accuracy of the convictions contained in his or her criminal history worksheet, the State must carry the burden of producing further evidence proving the truth of the convictions by a preponderance of the evicence. The State may not shift the burden onto the defendant to disprove the convictions.

Because the form was insufficient, the KSC reversed and remanded to the district court with a recalculated criminal history.

This is probably an important case with reference to a lot of municipal convictions used in criminal history every day around Kansas.

Monday, February 15, 2010

Why can't jurors know the potential punishment?

CrimProf Blog has this coverage of an article titled: "Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction." I have recently been blogging and raising issues about the pattern instruction telling the jury not to consider disposition. But I have wondered more and more about this topic (in fact, I previously blogged about it here). The pattern instruction seems fairly one-sided. Jurors know (or should know) what happens if they acquit. Why shouldn't they know what happens if they convict, particularly with the draconian sentencing laws favored by legislatures. I suppose there are some offenses that have such small presumptive sentences (and misdemeanors) that defense practictioners might be worried about too light consideration from jurors, but I think that is the tail wagging the dog. Any thoughts?

Anyway, if you have a case where the client is facing a draconian sentence, be sure to request an instruction telling the jury about that penalty. And you could ask jurors after conviction: "Would it have made any difference in your deliberation process if you knew that my client will now face a minimum sentence of more than 10 years for buying some Sudafed for her boyfriend?" If yes, you could add that to your motion for new trial (not to impeach the verdict, but to show prejudice in failing to give the instruction). Kansas law does not support this idea now, but this is how you attempt to move courts, as suggested by the article.

Just some thoughts.

Friday, February 12, 2010

COA upholds suppression based on detective's misrepresentations in warrant affidavit

Kenneth B. Miller and Kevin P. Shepherd won in State v. Hodge, Case No. 102,542 (February 12, 2010) (unpublished), affirming Judge Schmidt’s suppression of evidence in a Shawnee County prosecution for sexual exploitation of a child and possession of child pornography.

In the district court, Detective Heather Stultz-Lindsay originally submitted an affidavit in support of a search warrant that that lead to the search of Hodge's apartment and a seizure of digital cameras, digital storage devices, computers, cell phones with digital camera capabilities, documents related to child pornography, and other related items. The search of Hodge's apartment yielded two laptop computers containing about 80 pornographic images of children.

The district court later found that the affidavit in support of the warrant contained several misleading statements and omissions of material facts. The court suppressed the seized evidence pursuant to Franks v. Delaware, 438 U.S. 154 (1978) (if a false statement was included in the affidavit supporting the search warrant either knowingly and intentionally or with reckless disregard for the truth, and if the false statement was necessary to the finding of probable cause, then the search warrant must be voided and the evidence obtained suppressed).

The COA affirmed the district court’s suppression of evidence:
We find substantial evidence in the record from the Franks hearing and from the affidavit itself to support the district court's findings of fact. To the extent the district court made negative findings on matters that were lacking from the affidavit, there is no evidence that the district court arbitrarily disregarded undisputed evidence, nor is there any evidence of extrinsic considerations such as bias, passion, or prejudice. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 928, 157 P.3d 1109 (2007).

Lindsay's affidavit was misleading. When the district court revised Lindsay's affidavit by adding necessary information that was missing from it and correcting misleading information in the affidavit, it concluded that the revised affidavit did not support a showing of probable cause. We agree. The district court did not err in this conclusion. The revised affidavit would not provide probable cause to believe that if Hodge had engaged in aggravated indecent liberties with a child, any evidence of this would be found on his computer.
The court also rejected the State’s argument that the good faith exception saved the search. The court found that there was support in the record for the district court to disbelieve the detective in this case.

Allen instruction given before opening results in new trial

Leslie Hess won in State v. Rivera, No. 100,848 (Kan. App. Jan. 29, 2010)(unpublished), obtaining a new trial in a Ford County DUI prosecution. The COA reversed based on instructions given before opening statements:
Prior to opening statements the trial court issued a series of oral instructions, concluding, “If you should fail to reach a decision the case is left open and undecided. Like all cases it must be decided sometime. Another trial would be a heavy burden.”
During deliberations, the jury indicated they had reached an impasse. The district court had the jurors continue deliberating.

The State concedes that based on Salts and Page, [blogged about here and here] the district court erred in instructing the jury in this case that “[a]nother trial would be a heavy burden on both sides.” And, as it must, the State concedes that here, as in Page, the jury advised the court that it was at an impasse. Nevertheless, the State contends the facts here do not require reversal because here, unlike in Salts or Page, the objectionable instruction was orally given to the jury at the outset of trial rather than provided both orally and in writing just prior to deliberations.

These distinctions do not weaken, or undercut, the rationale of Salts or Page. Whether given at the start of the trial or at the close of the trial and whether given orally or in writing, the instruction was misleading in that it advised the jury that in attempting to reach a verdict, it should consider that a second trial might be burdensome to all parties. And significantly, as in Salts and Page, the trial court here gave the jury a conflicting instruction that “[t]he disposition of the case [after the jury's verdict] is a matter for determination by the Court” and not the jury's concern. Finally, as in Page, the effect of the erroneous deadlocked jury instruction here is more significant in light of the jury's report to the court that it was at an impasse.

Another example of the importance of Salts. I wonder why we couldn't agree to just let juries do their thing and stop all of these extraneous attempts to tell the jury how to do their thing.

Hat tip to Linda Eckleman.

[Update: the state filed a PR on February 16, 2010.]

[Further update: the KSC denied the state's PR and the mandate issued on July 1, 2010.]

Acquittal in murder prosecution

Word on the street has it that my former PD colleagues Chrystal Krier and Nika Cummings of the Sedgwick County Conflicts PD office won an acquittal in State v. Ford ending a Sedgwick County first-degree murder/agg robbery prosecution

Tuesday, February 09, 2010

Former military guy shot by police acquitted of criminal threat

Here is a Wichita Eagle article reporting that Kurt Kerns won an acquittal in State v. Ware, ending a Sedgwick County criminal threat prosecution. According to the article, Mr. Ware was going to his car to get an assault rifle to break up a fight in a bar parking lot at the request of the bar owner.
Six Wichita police officers arrived at the parking lot and testified that they came up behind Ware. Three of the six fired 16 shots, including those that hit Ware.

Kerns played the jury a video taken at the scene from a bystander's cell phone showing that the assault rifle never left the vehicle before Ware's shooting.

Monday, February 01, 2010

March 2010 KSC docket

Here are the criminal cases on the KSC docket for March 8-12, 2010. 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.

March 8--Monday--a.m.

State v. Scott Dukes, No. 96,563 (Sedgwick)
Direct appeal (petition for review); DUI
Rick Kittel
[Affirmed; Nuss; May 6, 2010]

  1. Improper admission of Intoxilyzer certification records and driving records
  2. Improper imposition of fine

State v. Asa Adams, No. 101,236 (Sedgwick)
Direct appeal; First-degree murder
Janine Cox
[Affirmed; Beier; April 29, 2011]

  1. Improper response to jury questions
  2. Improper instruction on expert testimony
  3. Ineffective assistance of counsel

State v. Edrick Edwards, No. 100,457 (Sedgwick)
Direct appeal; First-degree murder
Rachel L. Pickering
[Affirmed; Johnson; Nov. 24, 2010]

  1. Statutory speedy trial violation
  2. Improper denial of suppression of statements
  3. Failure to supplement aiding and abetting instruction
  4. Gruesome photographs
  5. Failure to modify prior bad acts limiting instruction

March 9--Tuesday--a.m.

State v. Alfonzal Jones, No. 98,571 (Wyandotte)
Direct appeal (petition for review); Agg kidnapping/rape
Lydia Krebs
[Reversed and remanded; Rosen; April 15, 2010]

  1. Improper denial of motion to proceed pro se
  2. Coercive response to jury question
  3. Failure to give prior bad act limiting instruction
  4. Overbroad instruction on kidnapping
  5. Improper instruction in re "favoritism or sympathy"

March 10--Wednesday--a.m.

State v. Richard Shadden, No. 97,457 (Johnson)
Direct appeal (petition for review); DUI
Shawn E. Minihan
[Affirmed; Luckert; July 9, 2010]

  1. Improper expert testimony on level of intoxication
State v. Tina Williams, No. 98,667 (Johnson)
Sentencing appeal
Carl Folsom, III
[Affirmed; Nuss; December 10, 2010]
  1. Improper severity level on journal entry

March 11--Thursday--a.m.

State v. Rory Foster, No. 101,029 (Allen)
Direct appeal; First-degree murder
Heather Cessna
[Affirmed; Biles; June 11, 2010]

  1. Failure to revisit competency to stand trial
  2. Failure to address concerns with counsel
  3. Failure to give lesser of voluntary manslaughter
  4. Failure to ensure unanimous verdict
  5. Failure to declare mistrial after disruption in courtroom
  6. Gruesome photographs
  7. Prosecutorial misconduct

State v. Damon Allen, No. 99,014 (Seward)
Direct appeal (petition for review); Possession with intent
Michelle A. Davis
[Reversed and remanded; Rosen; June 4, 2010]

  1. Failure to give unanimity instruction
  2. Failure to give accomplice instruction

State v. Timothy Spidel, No. 101,659 (Shawnee)
Direct appeal; Failure to register
Michael E. Francis
[Affirmed; per curiam; April 15, 2010]

  1. Registration requirement is unconstitutionally vague