Tuesday, June 29, 2010

Oregon has a state constitution

Yet another hat tip to FourthAmendment.com. In State v. Smith, No. A138276 (Or. 2010), the Oregon Court of Appeals held that an encounter between an officer and a driver was more than a "mere conversation" and therefore implicated and violated Article I, section 9 of the Oregon Constitution. That section provides the following protection:
No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
The Kansas Constitution Bill of Rights, Section 15 provides 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.

Vermont has a state constitution

Hat tip to FourthAmendment.com. In State v. Brichard, No. 2008-477 (Vt. 2010), the Vermont Supreme Court applied Article 11 of its constitution to hold that a warrantless search of a backpack was illegal:

Vermont law ordinarily requires suppression of evidence obtained as a result of an illegal search. While federal law has developed some exceptions removing impediments to expedient law enforcement operations, this Court has been more conservative in its adherence to the values underlying Article 11. As a result, Vermont law resolutely maintains that law enforcement must seek, and a magistrate must grant, a search warrant prior to investigating the contents of a person’s home, vehicle, or personal effects.

Under the Vermont Constitution, unlike the federal constitution, protection against warrantless searches extends to automobiles. To search a vehicle without a warrant, we have so far held there must be probable cause and exigency. Law enforcement officers may not search a vehicle without a warrant once the occupant has been put into police custody, absent a need to protect officers or preserve evidence of a crime. We have held that the latter requirement also requires some showing of exceptional circumstances. The mobility of a car or its contents is not per se an exigent circumstance. Similarly, the fact that a container for which the police have probable cause is found in a vehicle does not, in and of itself, constitute an exigency or other exception sufficient to dispense with the warrant requirement and invade an otherwise legitimate and reasonable expectation of privacy in that container.
Article 11 of the Vermont Constitution provides the following:
That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.

Monday, June 28, 2010

No apparent authority

Gregory D. Bell won in State v. Kerestessy, No. 101,851 (Kan. App. June 25, 2010), affirming Judge Keeley's suppression order in a Rice County manufacture prosecution. Based on items found in Mr. Kerestessy's car, officers sought to search his residence without a warrant. When they arrived, the officer's met Michelle Konen. Ms. Konen and Mr. Kerestessy were not married, but officers knew that the couple had lived together for a few years.

The district court found that Ms. Konen voluntarily consented to search of a bus on Mr. Kerestessy's residence, but also found that she did not have apparent authority to consent to the search of the bus. The COA affirmed this finding:
As set forth in the trial court's factual findings, the facts available to the officers failed to establish that a person of reasonable caution would believe that Konen had authority over the premises to be searched. Moreover, the officers never made any attempt to ascertain whether Konen had "mutual use" of the school bus or whether she had any sort of legal interest in the school bus.

This is not, as the State contends, a case where the officers misunderstood the facts. The State argues that this case is similar to Rodriguez, where officers searched the defendant's apartment after the defendant's girlfriend told officers she lived at the apartment and used her key to unlock the door before giving offito believe Konen had apparent authority to consent to a search of the bus. Moreover, the State maintains that the officers reasonably believed Konen had apparent authority because Konen was present and nearby during the search and did not object to the search of the bus or claim she had no authority over it.

Nevertheless, Konen was not obligated to object or to volunteer such information. In addition, Konen's and Kerestessy's marital-like relationship, without further inquiry, did not show that Konen had mutual use of the school bus. Although Konen's removing the dog from outside the bus might weigh in favor of her having apparent authority over the bus, the fact that the officers needed the dog to be removed before they could enter the bus could be considered evidence that Kerestessy did not want other people, including Konen, entering his bus. Moreover, the trial court considered the dog, which Konen described as a pit bull, to be a guard dog and found it weighed against Konen having apparent authority to consent to a search of the school bus. cers permission to search the apartment, in which she kept her clothes and furniture. Unbeknownst to the officers, the girlfriend had moved out of the apartment weeks earlier and did not have actual authority to consent to the search. The United States Supreme Court determined that the officers could rely on their mistake of fact because if the facts were as they believed them to be, the girlfriend would have had the apparent authority to consent.

Thus, the issue here is not whether these officers thought Konen had the apparent authority to consent, but whether a reasonable person given the information the police had in this case would believe Konen had "mutual use" of the school bus or a legal interest in the school bus, which would give rise to apparent authority to consent to a search of the bus.

According to the State, it was reasonable to believe that Konen had the apparent authority to consent to a search of the bus because the officers knew that Konen and Kerestessy were a "couple" and that they had been a couple and had shared the premises for some length of time. Our Supreme Court has found a marital relationship is a factor to consider when determining whether a person has common authority over property. The State also contends that the fact that the dog tethered outside the bus was a puppy and a family pet and was removed by either Konen or her friend shows it was reasonable.
I'm not sure this is the right standard of review, but the result would probably be the same.

[Update: the state did not file a PR and the mandate issued on August 2, 2010.]

Couple of criminal history wins

Michelle Davis won in State v. Sanchez, No. 100,993 (Kan. App. June 25, 2010)(unpublished), obtaining a new sentencing hearing in a Sedgwick County criminal threat prosecution. The case involved classification of some California prior convictions:
In California, an offense which provides a range of punishments resulting in either a felony or misdemeanor classification is referred to as a "wobbler" offense. A wobbler is deemed a felony unless charges as a misdemeanor by the State or reduced to a misdemeanor by the sentencing court.
Mr. Sanchez had pleaded guilty to two wobbler offenses and that, after completing probation, the California sentencing court had reduced the offenses to misdemeanors. The COA reviewed California law and agreed that California would treat the offenses as misdemeanors. Because the Kansas Sentencing Guidelines explicitly rely on the other state's law when making the felony/misdemeanor classification, the COA held that the district court improperly classified the California convictions as felonies.

Christina Waugh also won in State v. Sallabedra, No. 102,038 (Kan. App. June 25, 2010)(unpublished), obtaining a new sentencing hearing in a Reno County possession of marijuana prosecution. This was primarily a Youngblood/Long issue (blogged about here and here) and the result was the same--because Mr. Sallabedra did not have or validly waive counsel in the prior convictions, they could not be used to enhance his current sentence.

Keep looking carefully at those criminal history worksheets, especially where there are juvenile, municipal misdemeanors, and out-of-state convictions!

[Update: the state did not file a PR in Sanchez and the mandate issued on August 2, 2010.]

[Update: Mr. Sallabedra filed a PR from the part of the case he lost on July 26, 2010.]

[Further update: the KSC denied Mr. Sallabedra's PR and the mandate issued on September 10, 2010.]

Wednesday, June 23, 2010

Acquittal in Wichita

Sarah Swain won an acquittal after a week-long trial in State v. Anton, ending a Sedgwick County rape prosecution. I haven't seen any coverage of this in the press.

As an aside, I find it "interesting" that newspapers around the state regularly report on preliminary hearings and arraignments, which are almost always of little real import, but are quite sporadic in re stories of acquittals, even in big cases. I try to scan through lots of Kansas newspapers online and rarely see acquittal stories, although I know from listserves juries are entering acquittals pretty regularly around the state. So let me know by e-mail, so I can let the other defenders know!

Saturday, June 19, 2010

PD contempt citation reversed

Roger Falk won in State v. Gonzalez and Sweet-McKinnon, No. 102,400 (Kan. June 18, 2010), reversing and setting aside a contempt violation against Reno County Chief Public Defender Sarah Sweet-McKinnon. (We blogged about this case previously here and here.) The case arose out of an attempt to subpoena a public defender to disclose the identity of a former client she had indicated may commit perjury in the underlying Reno County murder prosecution. She resisted and was found in direct contempt of court.

The KSC reversed:
A prosecutor who seeks to have criminal defense counsel testify about a current or former client's confidential information must file a motion for issuance of a subpoena. On hearing the motion, Kansas Rule of Professional Conduct 3.8(e) is the analytical rubric for a district court judge. Under it, the district judge may not issue such a subpoena unless the prosecutor establishes that (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information. The grounds for quashing such a subpoena may include the nonexistence of any of the three KRPC 3.8(e) factors, as well any of the other factors listed in K.S.A. 60-245(c). The initial determinations made on the KRPC 3.8(e) factors in order to issue the subpoena have no preclusive effect, as those determinations were made without the participation of the attorney subject to the subpoena. Thus the State retains the burden of demonstrating the existence of each of the KRPC 3.8(e) factors, with one modification: If the attorney invokes the attorney-client privilege, the attorney has the burden to show the privilege applies; if, on the other hand, the State contends an exception to the privilege applies, the State has the burden of establishing the existence of the exception.
The KSC held that the state did not meet the first element of this test:

The attorney's summary of the client's expression of an intention to commit perjury is the only evidence, and merely reed-thin circumstantial evidence, that the former client sought legal services to facilitate a future crime. K.S.A. 60-426(b)(1) requires additional evidence before the crime-fraud exception to attorney-client privilege will arise.

And the state failed to meet the third element of the test as well:
Again, the only evidence as to the third factor was the testimony of Moore, the detective who conducted the fruitless interviews of the seven newly endorsed witnesses. Although Moore said he believed that there were no other possible avenues of investigation, as oral argument to this court demonstrated, it would have taken little time and less imagination to discern other directions and strategies more likely to lead to helpful information. Unless these directions and strategies were attempted and failed, the State did not demonstrate that there were no feasible alternatives other than to coerce McKinnon's testimony. Even if the crime-fraud exception arose to defeat the attorney-client privilege under the first factor of KRPC 3.8(e), the third factor should have prevented issuance of the McKinnon subpoena in the first place or prevented its enforcement on her motion to quash.
As a result, the contempt citation is reversed.

Here is coverage in the Hutch News.

Friday, June 18, 2010

Another bad jury trial waiver

Rick Kittel won in State v. Dionicio, No. 101,780 (Kan. App. June 18, 2010)(unpublished), obtaining a new trial in a Montgomery County identity fraud proseuction. The COA held that sufficient evidence supported the district court's bench trial conviction, but further held that the record did not support waiver of the right to a jury trial. The COA noted that the only evidence regarding the waiver in the record on appeal was a vague discussion between the judge and defense counsel. The COA also rejected the state's argument that this was invited error:
Even though Dionicio was in the courtroom when defense counsel asserted that Dionicio had waived his right to a jury trial, the invited error doctrine does not prevent Dionicio from raising this issue on appeal. Dionicio must therefore prevail on this issue. Given the fundamental nature of the right to a jury trial, we must strictly analyze whether Dionicio provided a valid waiver, and mus afford Dionicio every possible opportunity to obtain a jury trial. To validly waive his right to a jury trial, Dionicio must have first been advised of his right to a jury trial by the trial court, then Dionicio must have waived the right personally, either in writing or in open court on the record. These requirements were not met.
Another new trial.

[Update: the state did not file a PR and the mandate issued on July 22, 2010.]

Thursday, June 17, 2010

September 2010 KSC docket

Here are the criminal cases on the KSC docket for September 13-17, 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.

September 13--Monday--a.m.

State v. Pedro Torres, No. 101,285 (Sedgwick)
Direct appeal; Rape
Reid T. Nelson
[Rev'd/Rmd; Leben; April 6, 2012]
  1. Improper prior bad acts evidence
  2. Failure to give unanimity instruction
  3. Improper sentencing as aggravated habitual sexual offender
  4. Cruel and unusual punishment
  5. Improper Allen instruction
State v. Jared Race, No. 101,545 (Reno)
Direct appeal; Rape/Agg indecent liberties
Ryan J. Eddinger
[Affirmed; Beier; Sept. 2, 2011]
  1. Improper admission of hearsay
  2. Improper prior acts evidence
  3. Failure to grant new trial after juror saw defendant in shackles
  4. Failure to instruct on age of defendant
State v. Cherish McCullough, No. 101,041 (Sedgwick)
Direct appeal; First-degree murder
Richard Ney
[Affirmed; Biles; March 2, 2012]
  1. Failure to give self-defense instruction
  2. Failure to give involuntary manslaughter instruction
  3. Prosecutorial misconduct
  4. Denial of Batson challenge
  5. Denial of jury challenges for cause
  6. Exclusion of evidence of threats
  7. Denial of fair trial by outbursts from spectators

September 14--Tuesday--a.m.

State v. Sterling Hall, No. 102,070 (Shawnee)
Direct appeal; First-degree murder
Rachel L. Pickering
[Affirmed; Caplinger; August 12, 2011]
  1. Prosecutorial misconduct
  2. Failure to give lesser included offense instruction
  3. Insufficient evidence
State v. William Jolly, No. 101,512 (Saline)
Sentencing appeal
Carl Folsom, III
[Vacated; Nuss; March 18, 2011]
  1. Improper guidelines sentence
  2. No authority to order lifetime electronic monitoring

September 15--Wednesday--a.m.

State v. Michael Mitchell, No. 99,163 (Sedgwick)
Direct appeal (petition for review); Aggravated robbery
Ryan J. Eddinger
[Affirmed; Biles; May 11, 2012]
  1. Improper use of out-of-date eyewitness ID instruction
  2. Failure to suppress eyewitness ID
State v. Charles Smith, No. 99,655 (Douglas)
Direct appeal (petition for review); Robbery
Meryl Carver-Allmond
[Reversed; Johnson; Feb. 11, 2011]
  1. Improper denial of appointed counsel's motion to withdraw
  2. Improper cop testimony in re ID of person on video
State v. George Sitlington, No. 99,266 (Franklin)
Direct appeal (petition for review); Rape
Korey A. Kaul
[Affirmed; Rosen; Nov. 19, 2010]
  1. Improper jury instruction outside of statute of limitations
  2. Improper rebuttal evidence
State v. Kevin Gatlin, No. 99,091 (Anderson)
Direct appeal (petition for review); Aggravated battery
Darrell L. Smith
[Reversed; Beier; June 24, 2011]
  1. Failure to give lesser-included offense instructions
State v. Julie Stieben, No. 99,446 (Ford)
Direct appeal (petition for review); DUI
Christina M. Waugh
[Rv'd/Rmd; Rosen; Juluy 29, 2011]
  1. Improper stop
  2. Improper arrest
  3. Prosecutorial misconduct
  4. Improper answer to jury question
  5. Biased judge

September 16--Thursday--a.m.

State v. Joseph Jones, Jr., No. 97,696 (Wyandotte)
Direct appeal (petition for review); Agg criminal sodomy
Matthew J. Edge
[Affirmed; Johnson; Nov. 9, 2012]
  1. Confrontation Clause violation
  2. Insufficient evidence of alternative means
  3. Failure to give lesser-included offense instruction
State v. Yvonne Ward, No. 99,549 (Seward)
Direct appeal (petition for review); Distribution/Conspiracy
Nancy Ogle
[Affirmed; Luckert; July 29, 2011]
  1. Insufficient evidence
  2. Allowing persons in jail clothing to sit in courtroom for ID purposes
State v. Maurice Walker, No. 99,457 (Wyandotte)
Direct appeal (petition for review); Possession
Ryan J. Eddinger
[Affirmed; Nuss; April 1, 2011]
  1. Improper seizure and detention

September 17--Friday--a.m.

State v. Daniel Perez, No. 100,682 (Wyandotte)
Direct appeal; Felony murder
Korey A. Kaul
[Affirmed; Malone; March 23, 2012]
  1. Improper adult prosecution certification
  2. Improper Allen instruction
  3. Failure to give lesser-included offense instruction

Wednesday, June 16, 2010

Validity of testimony via television

Hat tip to Crime and Consequences for noting Justice Sotomayor's statement regarding the denial of cert in Wrotten v. New York. The issue of the whether Maryland v. Craig is good law after Crawford is one that we have litigated occassionally (blogged about here). Perhaps it is one that the SCOTUS would be willing to hear in upcoming terms.

I just thought I'd post to remind practitioners about this ongoing issue. And don't forget to cite the Kansas Constitution Bill of Rights which provides the right for the accused "to meet the witness face to face." Given our "plain language" KSC, that provision might mean something in this debate.

Tuesday, June 15, 2010

New York has a state constitution

Hat tip to FourthAmendment.com. The New York Court of Appeals, in State v. Devone, 2010 NY Slip Op 04828 (N.Y. June 8, 2010), holds that, under its state constitution, and contrary to SCOTUS cases, a dog sniff of a vehicle is a search:
Based on our State jurisprudence, therefore, whether a canine sniff constitutes a search is necessarily dependent upon whether it constitutes an intrusion into a place where a person has a reasonable expectation of privacy. One clearly has a greater expectation of privacy in one's home than in an automobile, but that does not render the latter interest undeserving of constitutional protection. There is a legitimate, albeit reduced expectation of privacy in an automobile. But that expectation is greater than the significantly reduced expectation of privacy one has in luggage turned over to a common carrier. We therefore hold that a canine sniff of the exterior of an automobile constitutes a search under article I, § 12.
Here is article I, § 12 of the New York Constitution:
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 warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
If you were curious, here is Bill of Rights, § 15 of the Kansas Constitution:
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.

Monday, June 14, 2010

Couple of reversals for improper manslaughter instructions

Michelle Davis won in State v. Bates, No. 100,681 (Kan. App. June 4, 2010)(unpublished), obtaining a new trial in a Sedgwick County intentional second-degree murder proseuction. Mr. Bates, a juvenile being prosecuted as an adult, was originally charged with premeditated first-degree murder. A jury convicted of intentional second-degree murder. The district court also gave a lesser-included offense instruction for voluntary manslaughter, but gave a version of voluntary manslaughter proper when manslaughter is the charged offense, not a lesser. The COA reviewed prior cases involving errors stemming from improper manslaughter instructions and concluded that the failure in this case was clear error:

Jury instruction No. 11 is erroneous and the additional instructions cited above are not enough to bring the instructions into legal compliance. The [State v. Cribbs, 29 Kan. App. 2d 919, 34 P.3d 76 (2001)] court stated that these types of additional instructions did not cure the error "because it still made any consideration of attempted voluntary manslaughter contingent on the jury's prior inability to convict on attempted second-degree murder." The same can be said here. We are not confident in concluding that no real possibility exists that the jury would have rendered a different verdict had the trial court given the proper instruction from PIK Crim 3d 546.05(B).

"A jury is presumed to follow the instructions." The State assumes the jury's question about whether Miller had something in his hand was solely for the purpose of determining if there was a claim of valid or invalid self-defense and whether to convict on voluntary manslaughter. We are not as confident as the State as to why the jury asked the question. We simply do not know. For that reason, we must reverse Bates' conviction based on the clearly erronous nature of the voluntary manslaughter instrtuction as set out in [State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003)].
In a very similar vein, Lydia Krebs won in Vontress v. State, No. 101,434 (Kan. App. June 11, 2010)(unpublished), obtaining a new trial in a Saline County attempted second-degree murder prosecution. The procedural posture was somewhat different because Mr. Vontress was raising the claim as an ineffective assistance of appellate counsel claim; his attorney had failed to raise the improper attempted voluntary manslaughter instruction claim in his direct appeal. The COA again applied Cribbs and Graham, and again held that an improper instruction regarding voluntary manslaughter given as a lesser was clear error and would have resulted in a new trial had appellate counsel raised it in the direct appeal. Therefore, Mr. Vontress is granted a new trial.

I thought one part of the Vontress decision particularly noteworthy. The COA made a point of noting that the state conceded the application of Graham and Cribbs in the case:

Significantly, the State readily agrees with Vontress' claim that the trial court clearly erred in providing PIK Crim. 3d 56.05-A instead of PIK Crim. 3d 56.05-B. More specifically, the State acknowledges (1) the instruction given deprived Vontress of the opportunity to have the jury simultaneously consider mitigating circumstances that might have reduced attempted second-degree murder to attempted voluntary manslaugter; and (2) there was a real possibility the jury would have rendered a different verdict had the jury been properly instructed. We believe the State's position here accurately reflects applicable Kansas law and find the State's decision to readily concede clear error both laudable and entirelyconsisted with a proseuctor's duty to remain faithful to the State's overriding interest that justice be done.
So keep an eye out for these cases where manslaughter is given as a lesser.

[Update: Mr. Bates filed a PR from that part of the decision he lost on July 6, 2010. The state did not file a PR or a cross-PR.]

[Further update: the KSC denied Mr. Bates' PR and the mandate issue on September 9, 2010.]

[Update: the state did not file a PR in Vontress and the mandate issued on July 15, 2010.]

Saturday, June 12, 2010

Even the cop didn't fear for her safety

Washburn student intern Katie Whitsitt and I won in State v. Shaffer, No. 101,668 (Kan. App. June 11, 2010)(unpublished), reversing a Sedgwick County possession conviction. The case stemmed from a public safety stop after officers thought Ms. Shaffer walked across the street in an odd fashion. They continued to perceive Ms. Shaffer's behavior as odd and belligerent, and so they decided to handcuff her as they continued their interaction. And they decided to frisk her. The COA rejected the claim that the officers improperly handcuffed Ms. Shaffer, but held that, based on the officer's explicit testimony, once they had handcufffed her, the officer no longer had an reasonable safety concern and, therefore the frisk was illegal:
Shaffer's conduct would certainly lead a reasonable person at the outset to have a concern for his or her own safety, but that threat was neutralized by handcuffing her. Shaffer did not resist being handcuffed, and there is no evidence in the record that she continued to be belligerent once she was restrained. In fact, [the officer] testified that her concerns about her own safety disappeared at that point.
Because the officers did not articulate any reasonable suspicion that Ms. Shaffer was dangerous, the frisk was illegal and the evidence that stemmed from the frisk should have been suppressed.

[Update: the state did not file a PR and the mandate issued on July 15, 2010.]

Tuesday, June 08, 2010

Kansas defender nearly arrested for criticising police in Rwanda

I blogged (here) about Kurt Kerns and his work on a genocide trial a few weeks ago.

Kurt was back in Africa and this Wichita Eagle article provides some of the harrowing details of what Kurt is facing. Good work by Dan Monnat and KBA president Tim O'Brien to help keep Kurt from being arrested for criticising the police in Rwanda.

Friday, June 04, 2010

Lack of unanimity

Michelle Davis won in State v. Allen, No. 99,014 (Kan. June 4, 2010), obtaining a new trial in a Seward County possession with intent prosecution for failure to give a unanimity instruction. The KSC summarized the procedural setting as follows:

The State did not specify which cocaine—that in Allen's pocket, or that in the upstairs bedroom—served as the basis for the possession element of possession with intent to sell. In closing argument, the State urged the jury to find that the cocaine in the bedroom belonged to Allen. The State also asked the jury to find that the cocaine in Allen's pocket belonged to Allen. The State told the jury, "But if you take those three rocks [in the pocket], plus all the 21 rocks upstairs, we believe the evidence is overwhelming that this defendant possessed it and intended to sell each of those rocks to somebody else." Allen presented no testimony, but he argued to the jury that it could reasonably conclude that the cocaine in the bedroom belonged to Cardenas and not to Allen. Allen did not object to the instructions as given.
The COA had held that prior unanimity cases involving possession charges had been overruled by later "course of conduct" cases. The KSC disagreed:

This conclusion by the Court of Appeals is incorrect. There is no single test for whether conduct constitutes one act or separate and distinct multiple acts. A test that applies to kidnapping may not apply to possessing a controlled substance. It makes little sense in some contexts to speak of a "fresh impulse," especially when part of the alleged criminal conduct consists of several ongoing actions. The critical issue is unanimity of the verdict.

The KSC went on to describe the potential unanimity problem in Mr. Allen's case:

Ten of the jurors may have believed Allen owned the cocaine in both his pocket and the bedroom and intended to sell all of it. One juror may have believed Allen owned the cocaine in his pocket but did not intend to sell it and also have believed he owned the cocaine in the bedroom and intended to sell it. And one juror may have believed he did not own the cocaine in the bedroom but he owned and intended to sell the cocaine in his pocket. This scenario presents a unanimity problem: the jurors did not agree on the possession element of the possession with intent to sell.

We do not, of course, know what motivated specific individual jurors to reach a guilty verdict. They may have been unanimous in their factual conclusion, but they may not have been. That was the problem that the court addressed in [State v. Kinmon, 26 Kan. App. 2d 677, 995 P.2d 876 (1999)], and the Kinmon analysis remains applicable to a situation such as Allen's, in which a jury could find either, or both, actual or constructive possession.

The KSC concluded that because it was "certainly plausible that jurors would not have agreed on the element of possession," the failure to give a unanimity instruction was clearly erroneous and required reversal.

Not every lie to the police is obstruction of official duty

Jennifer Anne Passiglia won in State v. Sheldon, No. 98,160 (Kan. May 21, 2010), reversing a Cowley County conviction for felony obstruction of official duty. In the COA, Passiglia also earned reversals of three false information convictions, and the KSC did not review those reversals. The KSC’s reversal of the obstruction conviction was based on an insufficiency of the evidence.

Sheldon owned a pawn shop in Arkansas City. In June of 2005, he allowed Wayman Young to pawn a gun at the shop, using Young’s wife’s name (with her permission), because Young believed that he could not possess the gun because of a prior felony conviction. As it turns out, Young was legally entitled to possess the gun at the time.

When Young pawned the gun, he filled out the pawn form with his wife’s name (Linda). She later retrieved the gun, and Young brought the gun back a second time. Young again used Linda’s name, but he signed the form with his own name. The discrepancy in the forms, which were required to be turned over to law enforcement, led the police to investigate whether Young was in lawful possession of the firearm.

The police subsequently questioned Sheldon, and he said that Linda had pawned the gun because Young could not legally possess it. But Young then admitted to pawning the gun in Linda’s name on the two occasions. When the police questioned Sheldon a second time, the police “characterized Sheldon's response as 'sketchy' because it now included Young being present, leaving to bring Linda to the shop, and then Linda waiting outside. Sheldon said that he was unsure whether Young or Linda filled out the forms. When pressed, Sheldon terminated the conversation.” The State charged Sheldon with three counts of making a false information and two counts of felony obstruction of an official duty arising out of the firearm pawns. The district court judge dismissed one obstruction count, and a jury convicted Sheldon on the remaining charges. The COA reversed all of the convictions except one felony obstruction charge. The remaining obstruction charge was based on Sheldon's statements to the police regarding the firearm pawns.

In arguing that the remaining obstruction charge was not supported by the evidence, Sheldon cited State v. Seabury, 267 Kan. 431, 435, 985 P.2d 1162 (1999), where a majority interpreted the K.S.A. 21-3808 language "in the case of a felony" to mean that an underlying felony must have been committed or a felony charge must have been filed before a defendant can be charged with felony obstruction of official duty. Seabury, 267 Kan. at 437. The State relied upon State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997), in which the K.S.A. 21-3808 phrase "official duty" was under examination. In that case, the KSC held that the "touchstone for the classification of the offense [as a felony or misdemeanor] is the reason for the officer's approaching the defendant who then flees or otherwise resists, and not the status of the defendant." Hudson, 261 Kan. at 538-39.

The KSC held:

The issue before us in this case is marginally more similar to that in Seabury than that in Hudson. We are not focused on classification of the Count V obstruction charge against Sheldon as a felony or misdemeanor but on whether, under any view of the uncontroverted evidence, the State could make its case. That being said, the dispositive emphasis that the Hudson opinion places on the subjective intention of the official who is alleged to have been obstructed in carrying out his or her duty also informs our decision.

We agree with Sheldon that, as a matter of logic as well as law, the State could not meet its burden of proof on Count V. The uncontroverted testimony of Mata is that he was investigating only unlawful possession of a firearm by Young when he visited with Sheldon at the pawn shop on July 15. No investigation of making a false information committed by any potential defendant had begun; therefore, Sheldon, even if he lied to Mata, could not at that time be guilty under K.S.A. 21-3808 of "knowingly and intentionally obstructing, resisting or opposing" the detective "in the discharge of any official duty."

Thursday, June 03, 2010

It's almost District Judge election season

Here is a Wichita Eagle article reporting on some of the filings for contested judicial elections in and around Sedgwick County. According to the article, there may not be a lot of election action occurring in Wichita this year.

Here is a Hutch News article reporting on some candidates lining up to fill Judge Rome's seat on the Reno County bench.

Wednesday, June 02, 2010

Another reversal for deadlocked jury instruction

Rick Kittel and KU Defender Project student Kendra Oakes won in State v. Baughman, No. 100,604 (Kan. App. May 28, 2010)(unpublished), obtaining a new trial in a Pottawatomie County aggravated indecent liberties prosecution. This was another win for Rick on the so-called Allen instruction. (Previous wins by Rick and others were blogged about here, here, here, and here.) The majority does a nice job of reviewing the history of these case and others involving the Salts issue. Again, because defense counsel objected to the instruction in this case, the COA held that "the instruction, as given, considered in its entirety could have reasonably misled the jury."

Keep objecting to those pattern instructions!

[Update: the state filed a PR on June 28, 2010.]

[Further update: the KSC denied the PR and the mandate issued on September 9, 2010.]

[Further update: the KSC granted a motion to publish this decision, which was done on November 8, 2010 as reported here.]

Recent cert petition

Here is a cert petition I am filing today from the decision in State v. Pressley, No. 98,823 (March 10, 2010), where the KSC held that the protection of the Sixth Amendment Speedy Trial Clause does not extend to sentencing. This is an issue on which there is a pretty big split of authority with no direct and controlling SCOTUS precedent, so it makes a pretty good cert petition.

Practitioners, remember that if you have delays in sentencing, especially delays that cause identifiable prejudice, consider both Fifth and Sixth Amendment Speedy Trial claims. And also consider a statutory claim under K.S.A. 22-3424(c), which requires that sentencing occur without unreasonable delay. The KSC would not get to the statutory argument in this case, but if it was properly raised in the district court, it might be a different story.

[Update: on August 19, 2010, the SCOTUS ordered the state to respond to the petition. It is due September 20, 2010.]

[Further update: on October 12, 2010, the SCOTUS denied the petition without comment.]

Tuesday, June 01, 2010

Presentence motion to withdraw does not require same showing as postsentence

Carl Folsom won in State v. Aguilar, No. 95,249 (Kan. May 21, 2010), getting withdrawal of a plea in a Wyandotte County constructive possession case. This case has been in the system quite a while. Carl filed the opening brief in March 2006, lost the case in the COA in February 2007, got the PR granted in June 2007, argued the case at the KSC in December 2007 and then, a two-and-a-half-year wait!

Ms. Aguilar pleaded guilty to possession of cocaine in a constructive possession case. Before sentencing, she moved to withdraw her plea. She claimed, among other things, that her counsel had a conflict of interest because of his concurrent representation of acodefendant.

The main issue of contention between the majority and dissenting opinions was the showing necessary to withdraw a plea before sentencing. Pursuant to K.S.A. 22-3210(d), a district court should allow withdraw of a plea before sentencing for "good cause shown," but after sentencing to "correct manifest injustice." The KSC held recognized that this statutory difference means something:

In [State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008)], we finally and explicitly recognized the distinction drawn in the statutory language, characterizing good cause for presentence motions as a "lesser standard" for a defendant to meet, when compared to manifest injustice for a defendant advancing a post-sentence motion. This legislative choice is sensible and appropriate. The longer a defendant waits to file a plea withdrawal motion, the more the State's case is likely to weaken, if not evaporate. Certainly the plea withdrawal statute was not intended to be a tool for temporal manipulation; if a defendant is going to hold the State to its beyond-a-reasonable-doubt burden of proof before a jury, he or she should not be able to delay the process indefinitely by entering a guilty or nolo contendere plea and then easily withdrawing it when the timing is opportune.

The KSC recognized that it has listed three factors that should be taken into consideration for a motion to withdraw pleas, known as "Edgar" factors from State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006): (1) whether the defendant was represented by competent counsel, (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) whether the plea was fairly and understandingly made.

The KSC provided guidance for the application of these factors in presentence withdrawal requests:
The Edgar factors remain viable benchmarks for judicial discretion but reliance on them to the exclusion of other factors has not only conflated the good cause and manifest injustice standards of K.S.A. 22-3210(d) but also may have overemphasized the role of plea counsel's competence in deciding presentence plea withdrawal motions. Although the Edgar factors permit counsel's competence or lack thereof to be one consideration when the motion is filed in the time period between conviction and sentencing, they should not be mechanically applied to demand that a defendant demonstrate ineffective assistance arising to the level of a violation of the Sixth Amendment. That level of proof may be suitable when the vehicle for relief is a K.S.A. 60-1507 motion attacking a defendant's sentence; and it may be logical and fair to equate the K.S.A. 22-3210(d) manifest injustice standard governing a post-sentence plea withdrawal motion to the high burden imposed on a constitutional claim of ineffective assistance. We note, however, that the plain language of the statute—"for good cause shown and within the discretion of the court"—should not be ignored. A district court has no discretion to fail to remedy a constitutional violation.

It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause standard governing a presentence plea withdrawal motion to the high constitutional burden. The Edgar factors do not transform the lower good cause standard of the statute's plain language into a constitutional gauntlet. Merely lackluster advocacy—or, as here, evidence of an insurmountable conflict of interest among jointly represented codefendants that is ignored by a district judge—may be plenty to support the first Edgar factor and thus statutory good cause for presentence withdrawal of a plea. All of the Edgar factors need not apply in a defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause.

Because Ms. Aguilar showed much more than lackluster advocacy, she showed a real conflict of interest stemming from representation of codefendants in a constructive possession case:
Under the particularly egregious facts of this case—in which the conflict of interest between the defendant and her jointly represented codefendant was insurmountable, and the record reveals no sufficient disclosure by counsel and waiver by the client—Aguilar met her burden to show good cause to grant her presentence motion to withdraw her plea under K.S.A. 22-3210(d). No additional district court hearing on the motion is necessary.
So, nearly five years after sentencing, Ms. Aguilar will be returned to her pre-plea status.