Saturday, July 31, 2010

Homicide acquittal in Hutch

Here is a Hutch News article reporting that Greg Bell won an acquittal in State v. Beard, ending a Reno County first-degree murder prosecution.

Friday, July 30, 2010

Indiana has a state constitution, part II

In Lacey v. State, No. 02A05-0910-CR-562 (Ind. App. July 27, 2010), the Indiana Court of Appeals relying on its state constitution holds that an unjustified violation of the "knock and announce" requirement related to execution of a search warrant requires suppression, notwithstanding the SCOTUS' differing view under the Fourth Amendment:
Although police officers at times confront emerging exigent circumstances, to which an emergency response is appropriate under the Indiana Constitution, the instant situation did not involve exigencies arising when there was no opportunity to seek judicial sanction for a "no-knock" entry. As Sergeant Strausborger explained, "no-knock" entries into a residence increase the potential for violence against police officers due to misapprehension of circumstances by the occupants. In light of our Indiana Supreme Court‟s pronouncement in Holder, acknowledging that intrusions based upon security concerns will be tolerated only "so long as they are reasonably aimed toward those concerns," we believe that such entries should remain rare and, where practicable, subject to review by a detached and neutral judicial officer.

Here, we are not concerned with a decision to disregard the "knock and announce" requirement predicated upon emerging exigent circumstances. Rather, we are concerned with an emergency response team policy that authorizes a unilateral decision to enter into a home without knocking when there has been no independent determination regarding the circumstances. As such, we find that suppression is the appropriate remedy for dealing with this Indiana constitutional violation.

Hat tip to

Monday, July 26, 2010

Insufficient alternative means results in reversal in kidnapping case

Former ADO Jocilyn Oyler won in State v. George, No. 97,679 (Kan. App. June 18, 2010), obtaining a reversal in a Leavenworth County rape/kidnapping prosecution. The jury was presented with the alleged alternative means that Mr. George confined a person with intent to "facilitate flight or the commission of any crime." The state conceded that there was no evidence that Mr. George intended to facilitate flight, but that overwhelming evidence supported the alternative means of facilitating commission of a crime.

The COA originally affirmed, but the KSC granted review and remanded for reconsideration in light of State v. Wright, 290 Kan. ___, 224 P.3d 1159 (2010). Under Wright, the COA reversed:

However, in light of the Court's recent decsion in Wright, we now reverse George's conviction of kidnapping. The jury here was instructed that it could find the defendant kidnapped R.L. if he took or confined her by force, threat, or deception with the intent to hold her to "facilitate flight or the commission of any crime." The State conceded that it presented no evidence that George acted to facilitate flight, but suggested the kidnapping verdict could nevertheless be affirmed based upon overwhelming evidence that George acted with the intent to facilitate the commission of rape.

In light of the court's reversal of Dixon, we conclude the State presented insufficient evidence of facilitating flight, and therefore his kidnapping conviction must be reversed and the case remanded for resentencing.

This Wright issue is coming up in several contexts. An example is that the state often charges theft with alternative means (exerting or obtaining property). But "exerting" (i.e. embezzlement) and "obtaining" (i.e. stranger taking property) are really almost mutually exclusive. So in any case where the jury instruction presents theft as "exerting or obtaining" property, there is probably an alternative means argument. So look carefully at the instructions. Prosecutors often use a shotgun approach to charging documents. But if evidence of one or more of the alternative means is insufficient, it should result in reversal on appeal.

It's a nice example of a "zone of victory." Although Wright itself was not a reversal, the law propounded in Wright will probably result in a lot of reversals.

Saturday, July 24, 2010

Gun charges dropped

Here is a Topeka Capital-Journal article reporting that Carl "Second Amendment" Folsom won dismissal of municipal charges of transporting a firearm in a vehicle in City of Topeka v. Roberts . As the article relates, the incident started because of investigation of Mr. Roberts carrying an unconcealed firearm in Westridge Mall. Here is the former article reporting that the municipal judge acquitted Mr. Roberts of any crime concerning carrying the firearm, but convicted of transporting. The city prosecutor dismissed that charge on appeal from the municipal conviction.

Wednesday, July 21, 2010

Oregon has a state constitution, part II

I recently posted on a Oregon state constitutional case, but this recent Oregon Supreme Court case has some great state constitutional law discussion, so I thought I would note it, too. In State v. Vondehn, No. SC S056371 (Or. July 1, 2010), the Oregon Supreme Court held that under its constitution, physical fruits of Miranda violations must be suppressed (rejecting the plurality SCOTUS decision in Patane):
The state contends, however, that we should reach a different conclusion when the violation of Article I, section 12, is a "mere failure to provide Miranda warnings" relying on the reasons persuasive to the plurality in Patane: that such a failure does not violate a suspect's constitutional rights and that, given the important value of reliable physical evidence, the Miranda rule should not be extended to exclude it. It is immediately obvious that the premise of the state's argument does not hold here. It is the Oregon Constitution that requires Miranda warnings and it is the Oregon Constitution that is violated when those warnings are not given. When the police violate Article I, section 12, whether that violation consists of "actual coercion" or the failure to give the warnings necessary to a knowing and voluntary waiver, the state is precluded from using evidence derived from that violation to obtain a criminal conviction. It follows ineluctably that, when the police violate Article I, section 12, by failing to give required Miranda warnings, the state is precluded from using physical evidence that is derived from that constitutional violation to prosecute a defendant.

Oregon is a long-standing leader in the area of state constitutional law. Its courts have a steady history of giving actual force to its own supreme law.

Article I, section 12 of the Oregon Constitution says: "No person shall * * * be compelled in any criminal prosecution to testify against himself."

Section 10 of the Kansas Constitution Bill of Rights says: "In all prosecutions, * * * [n]o person shall be a witness against himself."

Friday, July 16, 2010

New trial in Lyon County Jessica's Law case

Carl Folsom won in State v. Magallanez, No. 99,694 (Kan. July 16, 2010), obtaining a new trial in three consolidated Lyon County sex offense prosecutions, including rape, aggravated indecent liberties, and aggravated criminal sodomy. Carl filed a brief with fifteen issues; the KSC held that five of the issues cumulatively required a new trial. The KSC summarized it findings:

This court has recognized often that the federal and state constitutions do not guarantee a perfect trial, but they do guarantee a fair one, even when the defendant stands accused of unspeakably horrendous crimes. This case is one of the rare ones in which cumulative error dictates reversal of the defendant's convictions and remand for further proceedings, because it is our view Magallanez did not get a fair trial and the evidence was not so overwhelming as to overcome the error. The five errors that, viewed collectively, substantially prejudiced Magallanez and denied him a fair trial were: prosecutorial misconduct, the overbreadth of the trial court's shotgun limiting instruction under K.S.A. 60-455, the redaction of J.P.'s letter to Magallanez, lack of jurisdiction to convict on aggravated indecent liberties as to S.S., and the inclusion of the "burden on both sides" language in the Allen-type instruction.

We have discussed already the potential danger when prosecutors embellish the burden of proof required in criminal cases, and the prosecutor committed this error by diluting the reasonable doubt standard in this case. Our prior case law also recognizes a defendant is entitled to have guilt determined solely based on the evidence introduced at trial, not other circumstances. This right was impaired by the misleading portion of the Allen instruction indicating that another trial would burden both sides. This trial was further tainted by evidentiary and argument issues; the prosecutor's improper comment that "you trust children until you have reason not to" exacerbated the district judge's error in barring admission of the very evidence proving that one of the victims had lied before about her sexual activity. Furthermore, the district judge failed to properly instruct the jury on limiting use of the evidence of Magallanez' prior crimes. Each error, viewed independently, would not have been enough to require reversal, but we cannot hold Magallanez received a fair trial when the errors are aggregated.
There is a lot of good language in this decision on each of the errors found by the KSC. We were a little skeptical that improperly restricting the defense presentation, by itself, would be harmless error. But it's under the bridge after the cumulative error finding.

Here is coverage from the Emporia Gazette.

Wednesday, July 14, 2010

Gordon Atcheson appointed to COA

Here is the governor's press release announcing that he has appointed Gordon Atcheson, an Overland Park lawyer to fill the vacancy on the COA created by Judge Jerry Elliott's passing this spring.

Wednesday, July 07, 2010

New trial for IAC in Labette County

Dan Monnat and Paige Nichols won on a remand hearing in State v. Weimer, obtaining a new trial in a Labette County rape prosecution. At trial, a jury acquitted Mr. Weimer on three of five counts, but convicted on the remaining counts. On direct appeal, Mr. Weimer received a remand hearing pursuant to State v. Van Cleave. At the remand hearing, Dan and Paige asserted several instances of deficient performance:

1. Failure to review key exhibits and seek redaction of inadmissible evidence contained within those exhibits.
2. Failure to object to the jury's review of key exhibits that had not been played in open court.
3. Failure to object to a deputy's trial testimony that he disbelieved the defendant.
4. Failure to object to the prosecutor's improper questions of defense witnesses.
5. Failure to ensure that the jury was aware that the claimed rape did not occur "on or around" the date that the state alleged and was required by the court's jury instructions to prove.
6. Allowing Weimer to be convicted of a crime with which he was not charged, and over which the district court had no jurisdiction.
7. Calling an expert witness whose testimony damaged Weimer and aided the state.
8. Failing to object to prosecutorial misconduct during closing argument.
9. Trying a case without making adequate accommodations for defense counsel's hearing problems.
10. Cumulative deficiencies.

Judge Jack agreed with eight of the ten assertions of deficient performance and, particularly given the closeness of the case and the fact that the jury apparently disbelieved the complaining witness in part, he held that five of them were independently and cumulatively prejudicial:

The State takes the position that Weimer received effective assistance of counsel and a fair trial. After reviewing the evidence and the arguments presented and the authorities cited, the court makes the following findings of fact and conclusions of law. In summary, the court finds that trial counsel's performance was deficient under claims 1,2,3,4,5,6, 8 and 10, and prejudicial under claims 1,2,3, 8 and 10.

In particular, both sides put on expert testimony about the trial attorney's performance and its effect. Mr. Weimer put on Richard Ney. Here is what Judge Jack had to say:
The Court finds that, given his credentials, and given this Court's own
observation of his testimony, Mr. Ney's is credible and persuasive.

Based on the district court's findings, the COA reversed and remanded for a new trial. Here is the COA order.

Tuesday, July 06, 2010

Wichita Eagle to work with law students to investigate an innocence claim

Here is a What the Judge Ate for Breakfast entry noting that some Wichita Eagle reporters are working with some Washburn Law School students to do some investigation into a 1981 Sedgwick County murder prosecution and the defendant's claims of innocence. The article notes that Rebecca Woodman, former ADO and current capital defender AND adjunct professor helped motivate the students in her Wrongful Convictions class at Washburn Law School.

Keep up at What the Judge Ate for Breakfast!

Thursday, July 01, 2010

Acquittal in Riley County

Here is a Hutch News article reporting on an acquittal in State v. Noel, ending a Riley County involuntary manslaughter prosecution. Anybody know the defender?