Thursday, December 30, 2010

Parental discipline a common law defense in Kansas

David Magariel won in State v. Wade, No. 102,433 (December 30, 2010), reversing a Johnson County conviction for misdemeanor battery. The court held that parental discipline is a common law affirmative defense in Kansas. The court reversed the defendant's conviction because the district court's failure to instruct the jury on this affirmative defense denied the defendant due process of the law.

The COA reversed Wade's conviction even though the affirmative defense instruction offered by Wade's trial counsel was legally incorrect. The court held that the district court had a duty to correctly instruct the jury on the defendant's theory of defense. The court then explained that the affirmative defense of parental discipline is based on an objective standard:

It is a defense to the charge of battery if a parent's use of physical force upon a child was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline.

Overall, a very good opinion. It is nice to see the court recognize that there are more affirmative defenses than those set forth by the legislature.

Tuesday, December 21, 2010

Another downward departure upheld

Janine Cox won in State v. Craver, No. 103,048 (Kan. App. Dec. 10, 2010)(unpublished), affirming Judge Chamber's imposition of a downward dispositional departure in three drug cases. The COA seemed somewhat unimpressed with the state's argument on appeal:
On appeal, the State only challenges the district court's first reason for the dispositional departure, i.e. that Craver was not the ringleader and did not participate in the planning of the drug manufacture. The "argument and authority" section of the State's brief is three pages in length. The thrust of the State's argument is that the district court erred by granting Craver a departure on the ground that she played a minor role in the crimes for which she was convicted. Although the State's brief contains a passing reference to Craver being a long-time drug addict, the brief contains no argument that Craver's drug problem is not a substantial and compelling reason for departure. An issue not briefed by the appellant is deemed waived and abandoned.

. . . .

Generally, when the district court offers two independent bases for its judgment, the appellant's failure to address an alternative basis for the district court's decision is a sufficient reason to deny an appeal. Because the State does not challenge the district court's alternative basis for granting Craver a dispositional departure, i.e. that Craver has a severe drug problem, this is sufficient reason to deny the State's appeal.
The COA went on, though, to hold that Judge Chambers' uniquely tailored sentence for Ms. Craver was supported by the record and was "consistent with the principles underlying the [Kansas Sentencing Guidelines Act.]"

[Update: the state did not file a PR and the mandate issued on January 13, 2011.]

Saturday, December 18, 2010

Acquittal in Reno County murder case

Here is a Hutch News article reporting that Alice Osburn won an acquittal on first-degree murder charges in State v. Delacruz. The article reports that the jury convicted Mr. Delacruz of an unrelated agg robbery.

Friday, December 17, 2010

Huff named judge in Douglas County

Here is an article from the LJWorld stating that Barbara Kay Huff will be the newest judge in Douglas County. Kay has been a criminal defense lawyer for a number of years, including stops at the Johnson County PD's Office, the Appellate Defender Office, and as a Clinical Professor at KU Law. According to the article, Kay has been in private practice in Lawrence since 1991. She will replace Judge Jean Shepherd, who is retiring in January.

I have gotten to know Kay over the last year, as her office is three doors down from mine. I can whole-heartedly say that I expect her to be an excellent judge. She is wicked smart, and she is very dedicated to the law. Congratulations, Kay.

Tuesday, December 14, 2010

New Hampshire has a state constitution

The New Hampshire Supreme Court held in State v. Boutin, No. 2008-813 (N.H. 11/24/2010), that its state constitution puts specific restrictions on officers conducting community caretaking stops:

The defendant argues that the seizure violated his rights under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the Federal Constitution. We consider his arguments first under the State Constitution, using federal cases only to aid in our analysis. See State v. Sawyer, 147 N.H. 191, 193 (2001). Part I, Article 19 of the New Hampshire Constitution provides that every citizen has “a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”

. . . .

In this case, the officer testified that he approached Boutin’s vehicle, “[j]ust to see if everything – if anything was wrong, make sure everything was okay.” He testified that he could not tell if there was an accident, if the vehicle was abandoned or if any occupants may have needed assistance or had health concerns. He also observed that Boutin’s vehicle was pulled off to the side of the road, but facing the wrong way. As in Boyle, while the officer may have had generalized concerns about the vehicle and its potential occupants, he did not describe any specific and articulable facts that justified the intrusion of Boutin’s protected interests. Boutin’s car was parked legally in a pull-off area and the officer did not observe any obvious signs of an accident, that the car was disabled, or that the passengers were in any type of distress. In short, the officer’s concerns amounted to little more than a hunch. While the officer testified that he was concerned in part because it was dark and snow covered the ground, “[w]inters are traditionally long in [New Hampshire], and we cannot adhere to a theory that essentially renders [Part I, Article 19] protections seasonal.”

Because we conclude that Boutin prevails under the State Constitution, we need not reach the federal issue.


This seems to me to be the right method of analysis. First, consider the claim independently under the state constitution. If necessary, consider the claim under the federal constitution. It's the only way to really show any fealty to the state constitution.

Thursday, December 09, 2010

January 2011 KSC docket

Here are the criminal cases on the KSC docket for January 24-28, 2011. 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.

January 24--Monday--a.m.

State v. William Bennington, No. 98,656 (Sedgwick)
Direct appeal (petition for review); Rape
Rachel L. Pickering
[Affd/Rvd/Rmd; Luckert; Oct. 28, 2011]
  1. Improper admission of hearsay statements
  2. Prosecutorial misconduct
State v. Eric Huerta, No. 101,438 (Sedgwick)
Sentencing appeal (petition for review)
Richard Ney
[Dismissal of appeal affirmed; Beier; March 18, 2011]
  1. Introduction of false information at sentencing
  2. Improper imposition of harsher sentence than more culpable co-defendant
  3. Improper comment on right to silence at sentencing
State v. Elgin Robinson, No. 101,657 (Sedgwick)
Direct appeal; Capital murder (life sentence imposed)
Reid T. Nelson
[Affirmed; Moritz; March 2, 2012]
  1. Improper search of computer (defective warrant)
  2. Failure to suppress coerced statements
  3. Improper admission of hearsay statements
  4. Gruesome photographs
  5. Failure to change judge
  6. Improper presumption of intent instruction
State v. Theodore Burnett, No. 100,854 (Sedgwick)
Direct appeal; Capital murder (life sentence imposed)
Sarah Ellen Johnson
[Affirmed; Moritz; Feb. 10, 2012]
  1. Improper jury verdict forms
  2. Prosecutorial misconduct
  3. Gruesome photographs
  4. Improper deadlocked jury instruction (Salts)

January 25--Tuesday--a.m.

State v. Randy Chavez, No. 103,168 (Sedgwick)
Sentencing appeal (Jessica's Law)
Rachel L. Pickering
[Aff'd/Vac'd; Rosen; July 15, 2011]
  1. Improper imposition of hard-25
  2. Improper imposition of lifetime electronic monitoring
  3. Failure to grant downward departure
State v. Will Wimbley, No. 101,595 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Will Wimbley, pro se (brief); Roger L. Falk (argue)
[Rmd to COA; Johnson; Nov. 23, 2011]
  1. Ineffective assistance of trial counsel
State v. Rashawn Anderson, No. 99,123 (Douglas)
Direct appeal (petition for review); Second-degree murder
Carl Folsom III (brief), Shawn E. Minihan (argue)
[Affirmed; Biles; May 11, 2012]
  1. Proseutorial misconduct
  2. Improper eyewitness identification instruction
  3. No waiver of right to testify on record

January 26--Wednesday--a.m.

State v. Derrick Freeman, No. 100,792 (Leavenworth)
Motion to withdraw plea (petition for review)
Michael G. Highland
[Vac'd/Rmd; Nuss; April 1, 2011]
  1. Improper denial of motion to withdraw plea
State v. Thomas Kelley, No. 100,913 (Shawnee)
Motion to withdraw plea
Patrick H. Dunn
[Affirmed; Johnson; March 25, 2011]
  1. Conflict of trial counsel on motion to withdraw plea
  2. Improper denial of motion to withdraw plea
State v. Clifford O'Rear, No. 99,487 (Wyandotte)
Direct appeal (petition for review); Agg battery
Lydia Krebs
[Reversed; per curiam; Feb. 17, 2012]
  1. Insufficient evidence of recklessness
  2. Prosecutorial misconduct
  3. Juror misconduct

January 27--Thursday--a.m. (Old Kansas Supreme Courtroom)

State v. Kevin Hernandez, No. 101,837 (Riley)
Direct appeal; First-degree murder
Matthew J. Edge
[Affirmed; Rosen; July 29, 2011]
  1. Prosecutorial misconduct
  2. Failure to give voluntary intoxication instruction
  3. Improper sentencing (identical offense doctrine)

January 28--Friday--a.m.

State v. Jerry Sellers, No. 101,208 (Harvey)
Direct appeal; Agg indecent liberties (Jessica's Law)
Michelle Davis
[Aff'd/Vac'd; Beier; April 22, 2011]
  1. Failure to order evaluation of complaining witness
  2. Multiplicity
  3. Lifetime postrelease is cruel and unusual punishment
State v. Eric Neal, No. 100,366 (Sedgwick)
Motion to correct illegal sentence (petition for review)
Michael P. Whalen
[Rvd/Rmd; Nuss; Aug. 5, 2011]
  1. Improper finding that claim re: uncounsel misdemeanors is precluded
Craig Fischer v. State, No. 100,248 (Hamilton)
K.S.A. 60-1507 appeal (petition for review)
Michelle Davis
  1. Denial of right to be present at evidentiary hearing

Monday, December 06, 2010

Suppression order

Sal Intagliata won a suppression order in State v. Holton, a Sedgwick County murder prosecution. According to this Wichita Eagle article, Judge Kaufman held that officers illegally entered a residence without a warrant or consent. Judge Kaufman also suppressed several statements taken from Holton later.

Wednesday, December 01, 2010

Local blawg in ABA Journal top 100

Glad to see Ron Sylvester and his blawg What the Judge Ate for Breakfast was included in this year's ABA Journal top 100 blawgs list. I have always thought Ron's coverage of the crime and courts beat was pretty fair and balanced and a lot of the Common Law video series have helped persons outside the court system see a little of what actually goes on behind the scenes, both in the courtroom and in the prison system. Just good journalism.

Vote for What the Judge Ate for Breakfast for best blawg! Just follow the link on the ABA page! (All the cool kids are!)