Friday, December 09, 2011

Keep your dog on your own property

Michael J. Giardine won in State v. Montgomery, No. 105,328 (Kan. App. Dec. 2, 2011)(unpublished), affirming Judge Hampton's dismissal of a Ford County felony cruelty to animal prosecution at preliminary hearing.  Mr. Montgomery had killed a chihuaua that had come on to his property and acted aggressively toward him and his dog.  The state asserted that he had acted unreasonably in killing the chihuaua.  The COA held that reasonableness is not an element of the exception for killing an animal located off its property:
Based on the unambiguous language of K.S.A. 2012 Supp. 21-4310, a person is generally guilty of animal cruelty if that person intentionally kills a dog and performs the act with evil-mindedness or without a reasonable justification or excuse. Again, however, a person may kill a dog without violating K.S.A. 2010 Supp. 214310 if the dog is not on its owner's or custodian's property and is found injuring or posing a threat to any person, farm animal, or property. The term “reasonable” is simply not present in the relevant statutory provisions.


Because there was no evidence that the threat perceived by Mr. Montgomery was "imaginary, unrealistic, or that it otherwise did not actually exist," the COA held that the charges were properly dismissed at preliminary hearing.

[Update: the state did not file a PR and the mandate issued on January 5, 2012].

Prior convictions do not support reasonable suspicion

W. Scott Toth won in State v. Fowler, No. 105,752 (Kan. App. Dec. 2, 2011)(unpublished), affirming Judge Bornholdt's suppression order in a Johnson County possession with intent prosecution.  The COA quickly found that substantial evidence supported a finding that the stop in this case was measurably extended-as long as 39 minutes--before a drug dog hit on the car.  The COA also held that the officers lacked reasonable suspicion to justify extending the detention:
It appears that Officer Busenbark believed Fowler may have been in possession of drugs based on his criminal history, which included a prior conviction for a drug offense. This court has found that criminal history alone generally is not enough to support a finding of reasonable suspicion. Such information may be considered along with other factors in determining if there was reasonable suspicion of a crime. But even in combination with all other information observed by Officer Busenbark, he did not have an objectively reasonable and articulable suspicion that criminal activity was taking place. Accordingly, we conclude that there was not a legitimate reason to measurably prolong the stop for a defective headlight.


[Update: the state did not file a PR and the mandate issued on January 5, 2012.]

Thursday, December 01, 2011

Avoiding police is not evidence of crime

Lydia Krebs won in State v. Edwards, No. 104,034 (Kan. App. Oct. 28, 2011)(unpublished), obtaining reversal of a Johnson County felony DUI conviction. The case turned on a claim that officers did not have reasonable suspicion to detain Mr. Edwards in a Hy-Vee parking lot:
Therefore, Officer Njoroge needed reasonable suspicion of criminal activity for her initial encounter to have lawfully continued into an investigatory detention for the DUI tests. Officer Njoroge's decision to stop Edwards' car was arguably based on seven factors: (1) that Edwards' car “slowly crossed” 123rd Street; (2) that Edwards' car “accelerated quickly”; (3) that Edwards was attempting to avoid Officer Njoroge; (4) that Edwards pulled the car into a parking lot and went behind Hy–Vee; (5) that Edwards “blacked out” the car and did not park within a parking stall; (6) that there recently had been a robbery at the particular Hy–Vee; and (7) that there recently had been burglaries in the “area.”

In the case before us, none of the seven factors taken alone, or collectively, rises to the level of legally recognized reasonable suspicion. The crux of the State's argument rests on Officer Njoroge's conclusion that Edwards was attempting to “elude” Njoroge. No facts substantiate this conclusion. Moreover, the record suggests no reasonable basis from which Officer Njoroge could draw such an inference. If this factor is gone, the rest of Officer Njoroge's reasonable suspicion topples like a house of cards. Indeed, if the unsupported characterization that Edwards was attempting to “elude” Njoroge is removed from the equation in this case, there is no factual predicate to support what the law recognizes as reasonable suspicion.

Attempting to “elude” a police officer, even at 1 a.m. is insufficient to give law enforcement officers the requisite reasonable suspicion to conduct a Terry stop because attempting to “elude” an officer is not a crime when no illegal activity occurs. The remaining factors that Officer Njoroge relied on, under the totality of circumstances, fail to establish reasonable suspicion.
Because the state did not prove that the officer had articulable facts that collectively provided reasonable suspicion for the stop, the detention and subsequent investigation violated the Fourth Amendment.

[Update: the state filed a PR on November 28, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on May 21, 2012.]

No proof discovery was inevitable

Michelle Davis won in State v. Richard Jones, No. 103,046 (Kan. App. Oct. 28, 2011)(unpublished), obtaining reversal of a Geary County possession conviction. The state conceded that the search of Mr. Jones' pocket was unlawful, but argued that the evidence would have been inevitably discovered. The COA distinguished attenuation doctrine and the inevitable discovery exception and held that the record did not support a finding of inevitable discovery:
Preliminarily, we note the scant, insubstantial, and hypothetical evidence justifying the application of the inevitable discovery doctrine presented by the State at the hearing on the motion to suppress evidence. As summarized in the Factual and Procedural Background section, important evidence to analyze this question was lacking. Although it was conceded that upon the officers' initial entry into the residence Jones was promptly handcuffed, no evidence was presented regarding the length of time Jones was detained at the residence during the execution of the search warrant. Additionally, the time period during which Jones was transported from the residence and held at the detention center in keeping with the police department's policy to detain individuals until their identity is confirmed is also unknown. Although the district court relied on Lieutenant Life's hypothetical and generic testimony that the FBI comparative fingerprint analysis would have taken at least 1 hour, we are left to speculate how long it actually took in the present case.

The answers to these questions would have provided an evidentiary basis in which to determine whether Jones' continued detention was a lawful or unlawful means to the inevitable discovery of the cocaine. Suffice it to say, it is not an appellate court's role to speculate about such factual matters. It is the State's burden, however, to establish the evidentiary basis for the inevitable discovery doctrine in each particular case.
Because the COA held that the state failed to prove the exception, it held that the continued detention violated the Fourth Amendment and reversed. The inevitable discovery doctrine requires proof that evidence would have been discovered in the case at bar, not just most hypothetical cases.

[Update: the state did not file a PR and the mandate issued on December 1, 2011.]

Failure to prove facts about priors

Washburn student intern Dustin L. Kirk and I won in State v. Hunt, No. 104,529 (Kan. App. Oct. 21, 2011)(unpublished), obtaining reversal of a Sedgwick County criminal possession of a firearm conviction. This case was litigated by bench trial mainly to preserve a suppression issue for appeal. But the criminal possession of a firearm charge required that the state prove that Mr. Hunt had been convicted "within the preceding 10 years." The COA held that the state failed to provide any evidence of that fact:
But the parties' stipulation that the gun was working certainly did not prove when the prior felony conviction had occurred. And the evidence had not done so, either. The evidence on this point was one officer's testimony that “[i]t turned out Mr. Hunt actually had a felony conviction for prior marijuana possession, which would make it a felon in possession of a firearm [offense], and that is what he was booked for.” The officer later confirmed that Hunt had “been previously convicted of a felony.” No one asked when that conviction had occurred.

. . . .

We do recognize, although the State does not make this specific argument, that Hunt was 22 years and 9 months old at the time of this arrest. Thus, for his past conviction to have been more than 10 years old at that time, he would need to have received the equivalent juvenile adjudication sometime before he was 12 years and 9 months old. Is that likely? No. But can we say beyond a reasonable doubt—based solely on the evidence presented at trial—that he didn't receive a juvenile adjudication for the equivalent of felony marijuana possession before he was 12 years and 9 months old? No. Even 12–year–olds can be adjudicated for marijuana possession.

. . . .

We can understand how the State's lapse occurred in this case. Presumably, both parties initially thought all of the elements needed to convict had been proved. But a trial was held, and the evidence wasn't sufficient to prove the defendant guilty beyond a reasonable doubt. The State bears that burden.
This case is a nice reminder that a bench trial, and even a bench trial on stipulated facts, is still a trial. The Due Process Clause still requires proof beyond a reasonable doubt with evidence on the record. It also may be a nice case why the state should support amending the Kansas statutes to reflect that defendants should be able to enter conditional guilty pleas, reserving specific issues for appeal.

[Update: the state did not file a PR and the mandate issued on November 29, 2011.]

Odor of marijuana not sufficient to search shoe

Rick Kittel and KU Defender Project intern Jeff Spahr won in State v. Robert Smith, No. 103,736 (Kan. App. Sept. 30, 2011)(unpublished), obtaining a reversal of a Geary County possession with intent to sell conviction. The issue revolved around the search of a passenger in a car stopped for incorrectly registered tags. When stopped, the detective detected the odor of marijuana on the passenger, they had him get out of the car and conducted a pat-down, which revealed $370 in cash, but no weapons or drugs. The detectives handcuffed the passenger and had him go back to the patrol car and remove his shoes. The COA considered whether this search violated the Fourth Amendment:
Whether the $370, Smith's nervousness, and the odor of perfume when coupled with the odor of marijuana provide probable cause is a close question. Probable cause is judged by the totality of the circumstances and not by judging each factor in isolation. Under current Kansas law the odor of marijuana alone is not enough, and the other factors in Smith's case provide little if any further support.
Because the COA held the detectives did not have probable cause, it held the search violated the Fourth Amendment and reversed the conviction.

[Update: the state filed a PR on October 25, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on June 13, 2012.]

Friday, November 18, 2011

Can't appeal "extent" of dispositional departure

Steven M. Joseph, Christopher M. Joseph, and Sonya L. Strickland won in State v. Johnson, No. 105,241 (Kan. App. Nov. 10, 2011)(unpublished), affirming Judge Schmidt's downward departure sentence in a Shawnee County attempted electronic solicitation case.  The parties had entered into a plea agreement in which they agreed that Mr. Johnson would go to prison, but that the parties would jointly recommend the low number in the box-55 months.  Judge Schmidt sua sponte gave notice that she was considering a dispositional depature to ISP for 60 months.  After receiving substantial psychological evidence, Judge Schmidt imposed the middle of the box and granted the dispositional depature to ISP.

The COA first held that although a party can appeal the extent of a durational departure, it cannot appeal the "extent" of a dispisitonal departure--there is either a dispositional departure or there is not.  And the state in this case admitted that the district court's findings underlying the departure were substantial and compelling.

The state's last point on appeal was that the district court shouldn't have considered some of the psychological evidence as a basis for the dispositional departure.  The COA held that the state had failed to reserve this question for appeal:
Here, the State is not appealing from an order dismissing a charging document, from an order arresting judgment, or upon an order granting a new trial. Also, when the district court overruled the State's objection to the admission of the doctors' reports, the State did not reserve the question for appeal. Further, K.S.A. 21-4721(a) does not provide authority for this court to consider the State's second issue on appeal. This statute allows the State to appeal a departure sentence, and the State has appealed Johnson's departure sentence in the first issue of its brief. However, the State provides no authority for this court's jurisdiction to address the second issue on appeal, which is either a complaint that Johnson breached the plea agreement or a complaint that the district court erroneously considered evidence in a sentencing hearing. Without a question reserved by the prosecution, we conclude there is no statutory authority for this court to consider the State's second issue on appeal.


As a result, the COA dismissed the second issue on appeal.  It's sort of interesting to consider that, even had the state properly reserved the issue for appeal, would it have mattered to Mr. Johnson?  An appeal on a question reserved presupposes that the matter is concluded and that the outcome of the appeal should not affect a defendant.

[Update: the state did not file a PR and the mandate issued on December 14, 2011.]

Saturday, November 05, 2011

December 2011 KSC docket

Here are the criminal cases on the KSC docket for December 5-9, 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.

December 5--Monday--a.m.

State v. Jeffrey Raskie, No. 102,847 (Johnson)
Direct appeal; Aggravated indecent liberties
Jessica J. Travis
[Affd/Vacd/Rmd; Luckert; Feb. 17, 2012]
  1. Admission of propensity evidence
  2. Improper prosecutorial argument
  3. Admission of evidence without sufficient foundation
  4. Insufficient evidence
  5. Improper instruction on burden of proof
  6. Failure to make findings on sentence proportionality
State v. Jose Portillo, No. 102,558 (Wyandotte)
Direct appeal; Rape
Ryan J. Eddinger
[Affd/Vacd/Rmd; Johnson; April 27, 2012]
  1. Insufficient evidence of penetration
  2. Improper admission of forensic interview recording
  3. Improper sentencing for charged offense
State v. Jamaal Summers, No. 101,902 (Wyandotte)
Direct appeal; First-degree (premeditated) murder
Michelle A. Davis
[Affd/Vacd/Rmd; Rosen; Feb. 3, 2012]
  1. Failure to suppress statements
  2. Improper admission of hearsay
  3. Improper question suggesting defense lying

December 6--Tuesday--a.m.

State v. Gabriel Nambo, No. 100,464 (Sedgwick)
Sentencing appeal (petition for review); Aggravated robbery
Ryan J. Eddinger
[Affirmed; Nuss; August 3, 2012]
  1. Whether unarmed accomplice is required to register
State v. Joshua Coman, No. 100,494 (Sedgwick)
Sentencing appeal (petition for review); Criminal sodomy
Carl F.A. Maughan
[Revd/Rmd; Johnson; March 30, 2012]
  1. Whether registration required for conviction
  2. Constitutionality of criminal sodomy statute
State v. John Sampson, No. 102,535 (Sedgwick)
Direct appeal; Felony murder
Michelle A. Davis
[Affirmed; Moritz; May 3, 2013]
  1. Violation of sequestration order
  2. Refusal to permit impeachment of witness with prior conviction

December 7--Wednesday--a.m.

State v. Anthony Murphy, No. 100,178 (Geary)
Direct appeal (petition for review); Possession with intent
Shawn E. Minihan
[Affirmed; per curiam; Feb. 1, 2013]
  1. Fourth Amendment violation (invalid consent)
  2. Improper admission of lab report

State v. Angela Anderson, No. 100,173 (Geary)
Direct appeal (petition for review)
Christina Waugh
[Petition dismissed as improvidently granted December 30, 2011]
  1. Fourth Amendment violation (invalid warrant)
  2. Improper admission of prior bad act evidence

December 8--Thursday--a.m.

State v. Kenneth Wilson, No. 102,931 (Osborne)
Direct appeal; First-degree (premeditated)
Heather R. Cessna (brief); Randall L. Hodgkinson (argue)
[Affirmed; Moritz; Sept. 28, 2012]
  1. Improper admission of 911 tape
  2. Improper admission of unproven prior bad act evidence
  3. Improper prosecutorial argument
  4. Improper finding of aggravating circumstances
State v. Montrez Washington, No. 102,521 (Sedgwick)
Direct appeal; First-degree murder
Carl F.A. Maughan
[Affirmed; Luckert; Jan. 20, 2012]
  1. Lack of probable cause for juvenile court to bind over
  2. Improper Allen instruction
State v. Antwan Peppers, No. 101,551 (Shawnee)
Direct appeal; First-degree premeditated murder
Lydia Krebs
[Affirmed; Beier; May 4, 2012]
  1. Improper admission of gang affiliation
  2. Improper instruction of burden of new trial
  3. Improper limiting instruction of bad act evidence
  4. Improper prosecutorial argument


Friday, October 14, 2011

Insufficient evidence of mistreatment

Lydia Krebs won in State v. Anderson, No. 103,484 (Kan. App. Sept. 30, 2011)(unpublished), reversing a Saline County felony mistreatment of a dependent adult conviction. The state charged Ms. Anderson stemming from her taking money out of a bank account on which she was a joint signatory with her mother. The COA held that such actions did not amount to the crime of mistreatment of a dependent adult:

Here, however, the evidence fails to support the State's obligation to show that Anderson somehow influenced Johnson to part with the money in the bank account. That didn't happen. Anderson had been authorized to sign checks on Johnson's account. And sign away, she did—apparently taking thousands of dollars to make improvements to her house and otherwise for her own benefit. Anderson did not need to induce Johnson to do anything to get the money and didn't attempt to do so. She just wrote checks.

The evidence and the scheming do not amount to mistreatment of a dependent adult. Had Anderson gone to Johnson and used the illicit means described in the statute to get Johnson to write checks to her that would have constituted mistreatment in violation of K.S.A. 21-3437(a)(2). For example, if Anderson had falsely claimed to need the money for her own medical care or threatened to move Johnson to an inferior care facility to get Johnson to sign checks payable to her, such conduct would violate the statute. But that's not what happened here.
As a result, the COA reversed the conviction.

[Update: the state did not file a PR and the mandate issued on November 3, 2011.]

Sunday, October 09, 2011

Problem when verdict form doesn't allow for acquittal

Christina Waugh won in State v. Rice, No. 103,223 (Kan. App. Sept. 9, 2011), obtaining a new trial for two counts of attempted aggravated criminal sodomy in a Nemaha County prosecution (the COA affirmed two counts of aggravated indecent liberties).

With regard to the criminal sodomy counts, the state charged Mr. Rice charged with aggravated criminal sodomy. The district court decided to give lesser-included offense instructions for attempted aggravated criminal sodomy. But the verdict form had some problems:

“COUNT I
“We, the jury, find the defendant, Dennis Edward Rice, not guilty of the crime of Aggravated Criminal Sodomy.
__________
Presiding Juror

“We, the jury, find the defendant, Dennis Edward Rice, guilty of the crime of Aggravated Criminal Sodomy.
__________
Presiding Juror

“We, the jury, find the defendant, Dennis Edward Rice, guilty of the lesser included
crime of Attempted Aggravated Criminal Sodomy.
__________
Presiding Juror”

As the COA recognized, the verdict form did not provide an option of finding Mr. Rice not guilty of attempted aggravated criminal sodomy or generally not guilty. The jury convicted Mr. Rice of attempted aggravated criminal sodomy. After a long review of applicable case law, the COA held that the defective verdict was clear error:
Critically, the jury was never provided a place on the verdict form to find Rice not guilty of the lesser included offense. Although the jury was told that Rice was presumed innocent and that it should find him not guilty if it had a reasonable doubt on any of the claims required to be proved by the State, the jury may have already found Rice not guilty of the charged crime on Count I. There was only one line remaining, and expecting the jury to know it could choose not guilty there as well would presume not only that the jury was capable of going beyond the form provided, it would presume the jury was capable of disregarding a reasonable interpretation of the trial court's instructions to chose only one line.
BTW, although the KSC has repeatedly disapproved separate guilty and not guilty instructions on lesser-included offenses, I still think they are a good idea. (The problem in this case is that they simply didn't give complete instructions).

Why? So that a jury could acquit on a greater offense, but hang on a lesser. For example, say a jury is considering first-degree murder, with second-degree murder as a lesser. And say six jurors have a reasonable doubt regarding premeditation and six jurors have a reasonable doubt about guilt altogether. What should be the result? There are twelve jurors that think the defendant is not guilty of first degree murder, which should be acquittal on that greater charge (and therefore retrial only on the lesser). But the pattern verdict form does not allow for that possibility. Under the pattern verdict form required by the KSC, you would simply have a hung jury.

So, if you're in this situation where the district court has given lessers (with pattern verdict form) and the jury has indicated that it reach a unanimous verdict, ask the district court to poll the jury regarding their verdict on the greater offense. It's an off chance, but it the jury unanimously found that the client was not guilty of the greater offense, it would be a pretty good issue.

[Update: Mr. Rice filed a PR from that part of the COA decision he lost on October 11, 2011.]

[Further update: the KSC denied Mr. Rice's PR and the mandate issued on May 22, 2012.]

Tuesday, October 04, 2011

Happy Kansas Constitution Day!

A few weeks ago, we celebrated Constitution Day. The Court of Appeals sat in special settings at several locations around the state. Kansas schools focused on the history of the Constitution. Constitution Day, of course, celebrates the anniversary of the date the U.S. Constitution was signed at the Constitutional Convention (September 17, 1789). I appreciate and support the recognition for the U.S. Constitution. But where is the love for the Kansas Constitution?

On October 4, 1859, the voters of the territory of Kansas ratified the Wyandotte Constitution, which remains our state constitution to this day. But as Paige Nichols and Dan Monnat explained in an article last year, the Kansas Constitution is a lonely and forgotten document. They explained: "[t]he rights that many free-staters died facedown in the mud to secure are rarely treated as sovereign rights independent of the federal constitution." In fact, Kansas appellate courts frequently interpret the Kansas Constitution as a mirror of its federal counterpart (even when the language of our state constitution is different). However, part of the blame is on the practitioners, who rarely seem to raise Kansas constitutional claims separate from the federal issues.

So today, in an effort to promote the use and independent protections of the Kansas Constitution, I celebrate Kansas Constitution Day. Although it's not an official holiday (yet), I will be meeting with like-minded Kansans to honor the anniversary of the adoption of the Kansas Constitution (we will be meeting at Free State Brewery in Lawrence). I encourage you to join.

Friday, September 30, 2011

Do not have to dim high beams when passing a parked car

Donald R. Hoffman and Jason P. Hoffman won in State v. Peach, No. 104,792 (Kan. App. Sept. 23, 2011)(unpublished), affirming Judge Parrish's suppression order in a Shawnee County DUI case.  The initial claim by the officer for a stop was failure to dim high beam headlights as Mr. Peach passed his patrol car parked in the shoulder of the highway:
Before turning to those arguments, we note the State makes no challenge to the district court's determination that a police cruiser parked on the shoulder of a road is not “an oncoming vehicle” under K.S.A. 8-1725(a). The tacit concession is a sound one. In construing statutory provisions, the appellate courts are to glean the legislative purpose and intent from the language used, and they are to give effect to that purpose and intent.

The common meaning of “oncoming” entails movement forward. Webster's Third New International Dictionary Unabridged 1575 (1966) (Oncoming means “moving forward upon one.”); Oxford American Desk Dictionary and Thesaurus 575 (2d ed. 2001) (Oncoming means “approaching from the front” and may be considered synonymous with “advancing” or “arriving.”); The American Heritage College Dictionary 971 (4th ed. 2004) (Oncoming means “coming nearer [or] approaching.”). An oncoming army is one that is advancing rather than bivouacked. The same may be said of cars. Hendricks' police cruiser was not “oncoming” when Peach drove by.


The state apparently asserted that it was entitled to another evidentiary hearing after the district court held that the officer lacked authority to stop based on failure to dim high beams:
The State has failed to show that the evidentiary record compiled in the district court is somehow inadequate to decide the suppression issues. Most tellingly, perhaps, the State never made a proffer of what additional evidence Hendricks or some other witness might present in a second hearing. The State offered up no such a proffer in its request for the hearing, and it again failed to do so in support of its motion for reconsideration. In the absence of an affidavit from Hendricks or some other particularized showing by the State as to what new evidence would be produced in a second hearing, we find no error in the district court's decision to deny that request.


Finally, the COA held that the good-faith exception could not save a stop after an officer's mistake of law.

[Update: the state did not file a PR and the mandate issued on October 27, 2011.]

You have to be there to acquiesce.

Patrick Dunn won in State v. Donnie Taylor, No. 104,455 (Kan. App. August 26, 2011)(unpublished), affirming Judge Rome's dismissal of several drug charges based on a statutory speedy trial violation. At one pre-trial proceeding, Mr. Taylor's lawyer appeared and requested a continuance, but Mr. Taylor was not present. The COA described the issue:

The issue is this: Did Taylor's absence from the December 1, 2009, hearing in which his lawyer requested and received a continuance require that the resulting delay be charged against the State? If so, the 90–day deadline expired during that time, requiring Taylor's discharge based on a violation of K.S.A. 22-3402.

. . . .

The Arrocha holding fits the material facts here in that Taylor's counsel sought a continuance that pushed the trial date past the speedy trial deadline. But—and this is a crucial but—in that case Arrocha was present by his counsel's side and did not personally object. Here, Taylor was not to be found physically in the courtroom or electronically present through an audio-visual connection from a remote location. In short, Taylor could not have lodged a personal objection because he had no opportunity to do so despite the statutory requirement of K.S.A. 22-3208(7) that he be present at the motion hearing and, thus, be afforded that opportunity. We need not determine if the hearing on the motion to continue was a critical stage of the case in a constitutional sense, thought it might have been. Taylor's statutory right to be present is of sufficient magnitude to direct the outcome here.

There was, of course, no mystery about Taylor's whereabouts. He was an involuntary resident of the Reno County jail and presumably could have been produced for the December 1 hearing. This is not a situation in which a defendant voluntarily failed to appear and, thus, reasonably might be viewed as having waived any personal objection to the proceedings.

Taylor had a right to voice an objection to his counsel's motion for a continuance, particularly one pushing the trial past what would have been the speedy trial deadline. And he had a right to be present at the motion hearing. Neither of those rights was observed except in the breach. The combined effect was to deprive Taylor of the opportunity to assert his speedy trial right. And, in turn, he cannot be said to have agreed to or acquiesced in the compromise of that right. The lesson, if there be one, is that a criminal defendant needs to be present at a hearing on a motion for a continuance and should affirmatively state on the record his or her personal assent to the request before the judge rules.

Good lesson.

[Update: the state did not file a PR and the mandate issued on September 30, 2011.]

Saturday, September 24, 2011

October 2011 KSC docket

Here are the criminal cases on the KSC docket for October 24-27, 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.

October 24--Monday--a.m.

State v. Melvin Martinez, No. 99,595 (Johnson)
Direct appeal (petition for review); Possession
Michelle A. Davis
[Rev/Rmd; Biles; Feb. 1, 2013]
  1. Fourth Amendment violation (improper stop)
Neil Edgar, Sr. v. State, No. 100,477 (Johnson)
K.S.A. 60-1507 appeal (petition for review)
Michael J. Bartee
[Affirmed; Luckert; July 27, 2012]
  1. Improper summary dismissal of habeas motion (IAC)
State v. Linday May, No. 102,248 (Johnson)
State appeal (petition for review)
Jay Norton
[Affirmed; Johnson; Feb. 10, 2012]
  1. Suppression of breath test results after insufficient test
State v. Katrina Allen, No. 101,575 (Johnson)
Sentencing appeal (petition for review); Attempted possession
Rachel L. Pickering
[Affirmed; Beier; Feb. 3, 2012]
  1. Prosecution violation of plea agreement

October 25--Tuesday--a.m.

State v. Ricky Hyche, No. 102,912 (Sedgwick)
Sentencing appeal; Jessica's Law
Rachel L. Pickering
[Affd/Vacd; Nuss; Dec. 2, 2011]
  1. Improper sentencing to hard-25
  2. Improper lifetime electronic monitoring
  3. Failure to grant departure
State v. Vicki Johnson, No. 100,728 (Sedgwick)
Direct appeal (petition for review); Possession
Randall L. Hodgkinson
[Rvd/Rmd; Beier; March 2, 2012]
  1. Fourth Amendment violation (search outside scope of detention)
State v. Kerry Jenkins, No. 100,396 (Sedgwick)
Direct appeal (petition for review); Felony theft
Rick Kittel
[Affirmed; Biles; Sept. 7, 2012]
  1. Double Jeopardy violation (after municipal conviction)
State v. Chad Fleming, No. 100,489 (Mitchell)
Direct appeal (petition for review); Felony fleeing and eluding
Heather R. Cessna
[Petition dismissed as improvidently granted Nov. 10, 2011]
  1. Officer's testimony invaded province of jury
  2. Improper condition of probation

October 26--Wednesday--a.m.

State v. Robert Lackey, No. 100,890 (Saline)
K.S.A. 21-2512 appeal (petition for review)
Gerald E. Wells
[Rvd/Rmd; Johnson; Oct. 19, 2012]
  1. Improper denial of DNA test under K.S.A. 21-2512
State v. Deron Williams, No. 101,617 (Wyandotte)
State's appeal (petition for review)
Michael J. Bartee
[Aff/Rvd; Moritz; May 17, 2013]
  1. Fourth Amendment violation (illegal detention)
State v. Kameron King, No. 99,478 (Wyandotte)
Direct appeal (petition for review); Possession
Matthew J. Edge
[Rvd/Rmd; Rosen; March 9, 2012]
  1. Fourth Amendment violation (invalid arrest)
  2. Improper exclusion of evidence of police bias

October 27--Thursday--a.m.

State v. Andray Cameron, No. 103,093 (Shawnee)
Sentencing appeal; Jessica's Law
Theresa L. Barr (brief); Rachel L. Pickering (argue)
[Affirmed; Luckert; July 27, 2012]
  1. Lifetime postrelease is Cruel and Unusual Punishment
State v. James Mossman, No. 103,111 (Shawnee)
Sentencing appeal; Jessica's Law
Matthew J. Edge
[Affirmed; Luckert; July 27, 2012]
  1. Lifetime postlease is Cruel and Unusual Punishment
State v. Rolland Guder, No. 101,632 (Bourbon)
Resentencing appeal (petition for review); Manufacture
Heather R. Cessna
[Vacd/Rmd; Rosen; Jan. 27, 2012]
  1. Whether district court can resentence on other counts
State v. Willie Dale, No. 99,781 (Reno)
Direct appeal (petition for review); Attempted first-degree murder
Rachel L. Pickering
[Affirmed; Moritz; Dec. 23, 2011]
  1. Improper admission of modified video
  2. Insufficient evidence
  3. Improper instruction on burden of proof
  

Thursday, September 22, 2011

Contradictory instructions require reversal

Lydia Krebs won in State v. Xavier Miller, No. 100,247 (Kan. Sept. 2, 2011), obtaining a new trial in a Wyandotte County intentional second-degree murder prosecution. The KSC summarized the issue:
whether the district court clearly erred when it appropriately instructed the jury that it should simultaneously consider the lesser included offenses of second-degree murder and voluntary manslaughter, but then erroneously gave a contradictory instruction directing the jury to consider the offense of voluntary manslaughter only if it could not agree on the offense of second-degree murder.
This is another case in a fairly long and consistent line of cases dealing with voluntary manslaughter as a lesser-included offense of second-degree murder. It's sort of an odd duck because voluntary manslaughter is second-degree murder PLUS some mitigating circumstances. KSC precedent makes it clear that the jury should consider the offenses together, but the instructions in this case were contradictory, indicating in one place that the jury should consider them at the same time, but also instructing the jury to consider voluntary manslaughter only after consderation of the greater offense. The KSC held this to be clear error:
We conclude under the facts of this case, that when the jury was given contradictory instructions to consider the lesser included offenses of second-degree murder and voluntary manslaughter both sequentially under a modified form of PIK Crim. 3d 56.05, Alternative A, and simultaneously under PIK Crim. 3d 56.05, Alternative B, and the remaining instructions, closing argument, and verdict form also led the jury to consider the lesser offenses sequentially rather than simultaneously, a real possibility exists that the jury would have rendered a different verdict had it been properly instructed.
This is an important result because many COA cases (like the COA in this case in fact) have held that improper instructions regarding ordering of jury consideration are cured if there is at least one correct instruction. But this case stands for the proposition that contradictory instruction on a fundamental point is clear error.

Friday, September 09, 2011

"Black man with facial hair" is too broad of a description to justify gun-point detention

Ryan Eddinger won in State v. Johnson, No. 98,812 (Kan. Sept. 2, 2011), reversing Wyandotte County convictions for possession of cocaine and possession of marijuana. The court held that the FBI violent crimes task force lacked reasonable suspicion to initially detain Mr. Johnson.

On the day Mr. Johnson was stopped, the FBI task force was looking to serve an arrest warrant on Shane Thompson, who, according to his DOC face sheet, was a black male with short hair, who had facial hair, and was 5’2” tall. The task force went to Thompson’s mother’s house in Kansas City, and they were unable to find him (and there was no evidence that Thompson had been there anytime recently). But the task force apparently did not want to get all dressed up for nothing. The KSC described the additional facts as follows:
Approximately 5 blocks away from Thompson's mother's residence, [Mr.] Johnson and [Mr.] Brown were walking on a sidewalk. Johnson is approximately 5'11" tall, and Brown stands around 5'9". Both men are black and have facial hair. The officers, in multiple unmarked squad cars with emergency lights activated, exited their cars, drew their weapons, and approached Johnson and Brown and requested identification. Officer Michael Blegen of the Missouri Department of Corrections and a member of the FBI task force later searched Johnson and discovered marijuana and crack cocaine. Johnson was arrested and later charged with possession of marijuana, possession of cocaine, and possession of a controlled substance without a tax stamp.
Mr. Johnson filed a motion to suppress. At the suppression hearing, Officer Blegen claimed that the difference in height in between the face sheet (5’2”) and Mr. Johnson’s height (5’11”) was acceptable because the face sheet was not always accurate. Based on the officer’s testimony, the district court and the Court of Appeals determined that suppression was not warranted. The KSC disagreed, holding:
The officers in this case lacked reasonable suspicion because: (1) Johnson's location was not related to criminal activity; (2) there is no evidence that the officers used reliable information; and (3) the physical description of "black man with facial hair" was too broad to be of any assistance in formulating reasonable suspicion.
So ultimately, Mr. Johnson was stopped at gun point by multiple officers because he was a "black man with facial hair." Kuddos to Ryan for his good work on this one (I believe he grew out his beard for the KSC argument). But, it really should not have been a close call. It is really quite disturbing that this type of "information" is used to justify stopping our fellow citizens at gun point.

Friday, August 26, 2011

Failure to disclose critical exculpatory evidence

Here is a Wichita Eagle article reporting that federal prosecutors have decided to dismiss charges involving allegations of genocide in Rwanda. (We previously blogged about the case here and here). Part of the rationale for dismissal included the fact that the federal government had failed to disclose critical exculpatory evidence that it had in its possession five months prior to charges being brought.

Congrats to Kurt Kerns and Melanie Morgan for their zealous work in this case!

Wednesday, August 24, 2011

Denial of self-representation requires new trial

Korey Kaul won in State v. Kendall Brown, No. 103,425 (Kan. App. Aug. 19, 2011)(unpublished), obtaining a new trial in a Saline County rape prosecution. Mr. Brown had filed four letters with the trial court indicating his desire to represent himself at trial. The district court held that, due to a limited educational background and history of mental illness, Mr. Brown could not knowingly and voluntarily waive his right to counsel and therefore denied his request. On appeal, the state did not argue in support of that finding, but argued that Mr. Brown's requests were equivocal. The COA rejected both claims:


Because the right of self-representation does not hinge upon the ultimate outcome of the criminal trial, the fact that [an attorney] was a highly trained criminal defense attorney who probably would have provided Brown with a better defense than Brown was capable of providing for himself is irrelvant. Similarly, a criminal defendant's level of education is relevant only to the extent that he or she is literate and capable of understanding the dangers and potential consequences or proceeding pro se. Clearly, the amount of training or legal sophistication, alone, does not enable a court to force counsel upon an unwilling criminal defendant.
Next, the COA considered whether the record would support a finding that Mr. Brown was incompetent to represent himself. The COA reviewed the mental health evaluation that included in the record on appeal:


Nothing in this evaluation supports the court's finding that Brown was mentally incompetent to handle his own defense.


Moreover, Brown's responses to the trial court's inquiries at the hearing were appropriate and cogent. Brown recognized that his understanding of the procedural law was inferior to his appointed counsel's knowledge but maintained that he wished to handle his own defense. While Brown's pro se motions and letters to the court demonstrate a lack of formal education, they also show his ability to grasp the factual and legal issues in the case. Brown indicated that he understood the potential pentalites he faced and the potential pitfalls attending self-representation.

As a result, the COA held that the district court violated Mr. Brown's right to represent himself, which is structrual error requiring a new trial.

[Update: Mr. Brown intially filed a PR from that part of the case he lost, but ultimately voluntarily dismissed that PR and the mandate issued on October 17, 2011.]

[Update: here is a Salina Journal report that Mr. Brown entered into a plea agreement for a reduced sentence on remand.]

Monday, August 15, 2011

September 2011 Special KSC Docket (Wichita)

Here are the criminal cases on the KSC docket for September 29, 2011, held in Wichita. This was a special setting of the KSC.

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 29--Thursday--a.m.

State v. Shannon Bogguess, No. 103,245 (Sedgwick)
Direct appeal; First-degree murder
Lydia Krebs
[Affirmed; Rosen; Jan. 20, 2012]
  1. Failure to suppress statements
  2. Denial of motion in limine (prior bad acts)
  3. Denial of motion to sequester detective
  4. Denial of conflict-free counsel at sentencing
State v. Michael Phillips, No. 102,282 (Sedgwick)
Direct appeal; Felony murder
Michelle A. Davis
[Affirmed; Biles; Oct. 26, 2012]
  1. Failure to instruct on lessers and self-defense
  2. Prosecutorial misconduct (improper argument)
  3. Insufficient evidence of underlying felonies
  4. Improper admission of "flight" and "alias" without cautionary instruction
State v. Kamaronte Jones, No. 101,667 (Sedgwick)
Direct appeal; First-degree murder
Meryl Carver-Allmond
[Affirmed; Mortiz; Oct. 12, 2012]
  1. Improper instruction on gang evidence
  2. Outdated eyewitness ID instruction
  3. Failure to give lesser-included offense instructions

September 2011 Special KSC Docket (Greensburg)

Here are the criminal cases on the KSC docket for September 28, 2011, held in Greensburg. This was a special setting of the KSC.

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 28--Wednesday--a.m.

State v. Manuel Ultreras, No. 103,527 (Ford)
Direct appeal (transfer); Agg Battery
Kurt P. Kerns
[Affirmed; per curiam; March 1, 2013]
  1. Interpretation of Stand Your Ground law/procedure
  2. Insufficient evidence of alternative means
  3. Failure to give unanimity instruction
  4. Improper restriction of cross-examination
State v. Juan Garcia, No. 102,140 (Morton)
Motion to withdraw plea appeal (petition for review)
Meryl Carver-Allmond
[Rvd/Rmd; per curiam; Aug. 17, 2012]
  1. Denial of motion to withdraw plea

Friday, August 12, 2011

Traffic stop illegally extended

Washburn student intern (and now Houston-area prosecutor), Sean Whittmore and I won in State v. Coleman, No. 101,621 (Kan. Aug. 12, 2011), reversing a Reno County possession conviction. The case involved a traffic stop of a parollee between Wichita and Hutchinson. The police officer discovered that Mr. Coleman was driving a rental car but the rental agreement had expired a couple of days prior. The officer also had unspecified information that officers were "aware of information" that Mr. Coleman, a parollee, was involved in drug trafficking.

The KSC agreed that the traffic stop itself was valid and that, based on the rental agreement, Mr. Coleman's parole status, and the unspecified reports of drug trafficking, officers had a basis for a temporary detention for further investigation. But the KSC went on to analyze the duration of the stop:

Because, as we determined earlier, Deputy Tatro had reasonable suspicion of criminal activity that would allow him to expand the scope of his original stop, the limitation that the Kansas Department of Corrections self-imposed would not have prevented a detention for a reasonable time for a search within the scope of the initial stop. Tatro did not, however, conduct an immediate search; he instead detained Coleman for at least 35 minutes while he waited for backup officers and, eventually, a parole officer to arrive.

A traffic stop may not exceed the duration necessary to carry out the purpose of the stop. In order to justify a detention for questioning, the officer must have a reasonable suspicion that the driver is engaging in or has committed a serious crime and must have a reasonable basis for extending the duration of the detention. Detaining a driver for even a few minutes in order to allow a drug-sniffing dog to arrive unreasonably extends the detention when the officer did not need additional time to ask exploratory questions or to write a traffic citation.

In the present case, Deputy Tatro detained Coleman for the sole purpose of providing a parole officer with enough time to arrive and conduct a search under the Kansas Department of Corrections' rules. It is undisputed that Tatro did not have a written arrest and detain order, and the State does not contend that Tatro needed the extended time in order to write a ticket or to verify Coleman's license or parole status.

. . . .

Deputy Tatro did not have the statutory authority to arrest Coleman as a parole violator. Tatro had no grounds to arrest Coleman for any other reason prior to the parole officer conducting the search that turned up the incriminating evidence. Quite simply put, Tatro had no reasonable and legal basis for detaining Coleman while the officers waited for the parole officer to arrive at the scene. An officer may not arbitrarily detain a driver in order to procure a drug-sniffing dog, and an officer may not arbitrarily detain a driver in order to obtain the presence of a parole officer.

As a result, the evidence should be suppressed.

Can reduce or eliminate postrelease after revocation

Carl Folsom won in State v. McKnight, No. 100,246 (Kan. Aug. 12, 2011), reversing imposition of a postrelease supervision period after the district court had originally declined to impose such a period upon probation revocation. The first issue that the KSC considered was possible mootness, because the state had filed a notice alleging a change of custodial status indicating that Mr. McKnight had been discharged. The KSC held (1) on the record before the KSC, the state had not proved that Mr. McKnight had been discharged and (2) even if moot, the case was capable of reptition, yet evading review. As a result, the KSC reached the merits of the case.

On the merits, the decision was pretty straightforward. The state argued that Kansas statutes mandate postrelease supervision. But K.S.A. 22-3716(b) expressly authorizes that, upon revocation of probation, the district court can "require the defendant to serve the sentence imposed, or any lesser sentence." The KSC held that this language is clear and unlimited, consistent with its 2001 precedent. See State v. McGill, No. 84,570 (Kan. April 20, 2001). Postrelease is part of the sentence. When the district court declined to impose postrelease at the time of revocation, that sentence was legal and could not later be modified.

As an appellate procedure aside, the KSC suggests in dicta that if Mr. McKnight had been discharged, the sentencing appeal would have been moot. But this does not actually decide the issue or consider the impact of legally moving up a person's effective discharge date. There are a lot of consequences that trigger from the time of legal discharge (e.g. right to carry a firearm) and, if a court would hold, as it does in today's case, that a discharge should have occurred earlier, that judgment would have a direct effect. Because the KSC rejects the mootness issue, this case does not decide that issue.

Thursday, August 11, 2011

New blog of note

Our colleague Jen Roth (former ADO, current Third District PD, Kansas Sentencing Commissioner, and KACDL legislative guru) has started a new blog, Bends Toward Justice, which we immediately added to our blog roll. Jen describes the blog as follows:

I start this blog as a place to raise awareness about the things in Kansas that are working and ways we could do better in the area of criminal justice policy. I envision this blog as a resource for constituents and policy makers alike. My goal is to provide data, information and stories about the complex issues at hand.
Jen is probably closer to the legislative process and more committed to the real ideals of "liberty and justice for all" as anyone I've known. So I'll be reading this blog! You should too!

Wednesday, August 10, 2011

Ten-minute acquittal

Here is a Hutchinson News article reporting that Kelly Driscoll won an acquittal in State v. Zahn, ending a Reno County prosecution of two counts of aggravated assault on a law enforcement officer.

Monday, August 01, 2011

Improper answer to jury question requires new trial

Christina Waugh won in State v. Stieben, No. 99,446 (Kan. July 29, 2011), obtaining a new trial in a Ford County felony DUI prosecution. During deliberations, the jury asked "Did Defendant cross the fog line before the officer turned around?" Over the defendant's objection, the district court sent a written answer to the jury in the affirmative. In fact, the actual testimonty was "The vehicle had also drifted toward the fog line when it was coming at me." The officer also testified on cross-examination that he did not see any traffic violations. As a result, the KSC concluded that the district court's answer was factually incorrect and required reversal:


The response by the trial court constituted error in at least two ways. First, the court violated the express provisions of K.S.A. 22-3420(3). Second, the court intruded on the province of the jury to act as the factfinder, interfering with Stieben's constitutional right to a trial by jury by not only answering the question, but by answering it incorrectly, possibly prejudicing Stieben's defense.
The KSC went on to address the real issue in this case: whether (as the COA had held) this error was harmless:


Harmless error analysis is inappropriate in the present case. Although it would require speculation to find reasons why the jury considered the early driving infraction important in its deliberation, the jury obviously considered it important enough to pose the question to the court. The evidence against Stieben was strong but not overwhelming. It consisted of a series of factors, any one of which standing alone might not have sufficed for conviction. She drifted toward the fog line once and crossed it three times, but she was not weaving all over the road. She committed no other traffic violations. She failed portions of the field sobriety tests, but she was not reeling and she was able to comprehend directions.

In State v. Myers, 255 Kan. 3, 9, 872 P.2d 236 (1994), this court found that the district court has a statutory duty to read back testimony when a jury requested it and that failure to comply with K.S.A. 22-3420(3) is not susceptible to harmless error analysis because the requested testimony "could have changed the way the jury evaluated the facts." In the present case, the requested testimony similarly could have changed the way the jury evaluated the facts.

In order to preserve a conviction on appeal where a constitutional trial error has been found, it is the State's burden, as the party favored by the error, to prove beyond a reasonable doubt that the error did not affect Stieben's substantial rights, meaning it did not contribute to the verdict obtained. The trial court's invasion of the jury's province as factfinder effectively denied Stieben her constitutional right to a jury trial. It is unknown why the jury considered the question important enough to submit it to the trial court, and it is unknown how the jury utilized the answer it received from the court. This court therefore cannot conclude that the State has shown beyond a reasonable doubt that the error did not affect Stieben's substantial rights. For the foregoing reasons, we find that the trial court committed reversible error in the way that it answered the jury's question about whether Stieben crossed the fog line when she first encountered Trooper Hemel.
As this decision recognizes, it should almost always be reversible error when a district court makes an error that invades the province of the jury.

COA adopts notice test for purses found during search warrant

Rick Kittel and KU Defender Project intern Carolyn McKune won in State v. Bobbie Jo Jackson, No. 104,309 (Kan. App. July 29, 2011), obtaining a reversal in a Butler County drug prosecution. Police officers executed a residential search warrant. During the execution, the officer found several purses on a table. The officer proceeded to go through the purses to determine which belonged to the resident. During that search, the officer found drug paraphernalia in a purse that turned out to belong to Ms. Jackson, a guest, and not the resident.

The COA considered possible tests for determining whether a purse falls within a search warrant. The COA noted that courts generally either apply the possession test (i.e. police may assume any object not worn by or in the close physical proximity of the guest is subject to the warrant) and the notice test (i.e. requires actual or reasonable constructive notice to police that an object within the premises may not be subject to the warrant or, without such notice, police may assume that the object is subject to the warrant). The COA considered the merits of each test, but adopted the notice test:
Both Lambert and Tonroy are highly suggestive that the notice test together with the relationship exception should be applied in Kansas to protect social guests from unreasonable search and seizure of their persons and personal property during execution of a search warrant. In our opinion, the bright-line possession test is not sufficient to provide adequate constitutional protection when considering whether the privacy rights of a guest have been violated during execution of a search warrant. We agree with the Oregon Court of Appeals in Reid that the possession test is potentially arbitrary and inflexible, thereby not affording due regard for the privacy rights of social guests. Accordingly, we hold that the notice test together with the relationship exception are to be applied to protect social guests from unreasonable searches and seizures of their persons and property during execution of a search warrant.

In applying the notice test under the facts of this appeal, we reject the notion that Officer Phillips did not have notice that the purses belonged to the guests and not Davenport. Phillips admitted that he knew the purses could have belonged to the female guests; thus, he had constructive notice of "containers" not subject to the reach of the search warrant. His expressed reasoning for the search was that one or all of the purses could have belonged to the target of the warrant, Davenport, and that in order to determine ownership, he was forced to open the purses. But Officer Phillips made no inquiry about the purses' ownership. He did not ask any of the women present in the house if they had brought a purse or which one it was. Phillips could have simply gone into the living room and asked three questions of each guest: Did you bring a purse with you today? Is that the only purse you brought? Can you describe your purse? The true owner of the purse is most likely to have enough knowledge of the purse to describe it, while the others will probably not recall enough about the purse to describe it. Further, if Jackson had been questioned and had denied the purple purse with an orange handle was hers, she would no longer have had a subjective expectation of privacy in the purse. Moreover, if there was doubt of ownership after questioning Jackson, the officers could have applied for a supplemental search warrant or requested that a drug dog be brought to the premises. In short, the notion that the police would have been stymied and without appropriate avenues of investigation is not accurate.
A nice explanation that a few simple questions do not impede good police work.

[Update: the state did not file a PR and the mandate issued on September 1, 2011.]

Sunday, July 31, 2011

September 2011 KSC Docket

Here are the criminal cases on the KSC docket for August 29-September 2, 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.

August 29--Monday--a.m.

State v. Ranell Turner, No. 102,594 (Sedgwick)
Direct appeal; Rape/kidnapping
Lydia Krebs
[Vacated/Remanded; Rosen; March 9, 2012]
  1. Improper imposition of life sentence
State v. Steven Hernandez, No. 101,719 (Sedgwick)
Direct appeal; Agg Indecent Liberties
Rachel L. Pickering
[Affd/Rvd/Rmd; Rosen; April 12, 2012]
  1. Improper imposition of life sentence (Bello)
  2. Improper verdict forms
  3. Failure to give lesser
  4. Failure to suppress statement
August 30--Tuesday--a.m.

State v. Perry Parks, No. 101,905 (Wyandotte)
Direct appeal; Felony murder
Carl A. Folsom, III
[Affirmed; Beier; July 20, 2012]
  1. Improper admission of post-Miranda silence
  2. Violation of in limine order by officer
  3. Denial of right to cross-examine state's witness
  4. Improper Allen instruction
State v. Morgan Wade, No. 101,548 (Chautauqua)
Direct appeal; First degree murder
Matthew J. Edge
[Affd/Vacd/Rmd; Johnson; Oct. 26, 2012]
  1. Inadequate answer to jury question on premeditation
  2. Failure to give lesser-included offense instruction
State v. Bryan Sprung, No. 99,704 (Cloud)
Direct appeal (petition for review); Agg Crim Sodomy
Lydia Krebs
[Affd/Rvd/Rmd; Moritz; May 4, 2012]
  1. Failure to give unanimity instruction
  2. Multiplicity
  3. Prosecutorial misconduct (closing argument)
  4. Denial of psychological exam
August 31--Wednesday--a.m.

Kenneth Haddock v. State, No. 101,508 (Johnson)
K.S.A. 21-2512 appeal
Elizabeth Seale Cateforis
[Affirmed; Luckert; Oct, 5, 2012]
  1. Denial of new trial after DNA testing
Marc Thompson v. State, No. 100,058 (McPherson)
K.S.A. 60-1507 appeal
Meryl Carver-Allmond
[Affirmed; Beier; Dec. 30, 2011]
  1. Ineffective assistance of counsel
  2. Improper dismissal of amended motion
September 1--Thursday--a.m.

State v. Alesia Warrior, No. 101,799 (Wyandotte)
Direct appeal; First-degree murder
Korey A. Kaul
[Affirmed; Luckert; May 11, 2012]
  1. Improper admission of statements
  2. Failure to disclose exculpatory evidence
  3. Improper admission of hearsay evidence
  4. Improper instruction that trial a burden on both sides
State v. Katreal Harris, No. 101,613 (Wyandotte)
Direct appeal; First-degree murder
Christina M. Waugh
[Affirmed; Biles; Feb. 3, 2012]
  1. Failure to give lesser-included offense isntruction
  2. Failure to suppress statements
  3. Improper admission of pre-trial identification
  4. Failure to grant mistrial during jury selection
September 2--Friday--a.m.

State v. Matthew Astorga, No. 103,083 (Leavenworth)
Direct appeal; First-degree murder
Theresa L Barr (brief); Meryl Carver-Allmond (argue)
[Affirmed; Moritz; Aug. 31, 2012]
  1. Improper instruction restricting self-defense
  2. Forcible felony restriction vague
  3. Juror misconduct (failure to disclose)
  4. Improper imposition of hard-50
State v. Daniel Benson, No. 97,905 (Shawnee)
Direct appeal; Felony DUI
Shawn E. Minihan
[Affirmed; Johnson; November 9, 2012]
  1. Improper admission of Intoxilyzer evidence (Confrontation Clause)

Friday, July 29, 2011

Reversal for failure to give self-defense instruction

Rick Kittel won in State v. Sanders, No. 103,171 (Kan. App. July 29, 2011)(unpublished), obtaining a new trial in a Shawnee County agg assault prosecution. The basis for the reversal was failure to give a requested self-defense instruction stemming from a confrontation between Mr. Sanders and some bouncers at a Shawnee County bar:

Here, a reasonable person in Sanders' posiution confronted with a weapon that, especially in the heat of the moment, might be taken to be a firearm would believe he or she needed to draw a firearm to resist that aggressive conduct and to defuse the perceived danger. In addition to [one of the bouncers], a second employee had accosted Sanders near the club entryway. Sanders or a reasonable person in his position also may have perceived that he was outnumbered, depending on whether he viewed Cooper as willing to enter into a physical confrontation with the club employees. Sanders had no duty to retreat in the face of the conduct Cooper ascribes to [the bouncer] and the other club employee. He could resort to force to defend himself rather than fleeing. The videotape shows Sanders baking away toward the front door of the club, albeit with his hand on his holstered pistol, while [the bouncer] advances towards him.



We also note that the video tape is far from decisive one way or the other. It fails to depict the initial stage of the confrontation when [the bouncer] and the second employee first tell Sanders to leave. The event unfolded quickly, and Cooper could have seen the employees point the pepper spray devices at Sanders then. The video also does not clearly show Sanders drawing his pistol and fails to capture where he may have pointed it.

Given the minimal evidentiary threshold necessary to require a court to give an instruction on self-defense, those circumstances are sufficient. The trial court, accordingly, erred in declining to instruct the jury on self-defense. Sanders is entitled to a new trial. We would not presume to suggest what a properly instructed jury would conclude. But, to this point, Sanders has been denied the opportunity (to which he was legally entitled) to find out.

The COA does a nice job of expaining the incorrectness of state's factual argument on appeal that the bouncers were trying to deal with the situation in a nonconfontational way:

But the jury, provided proper instruction, must sort out those kinds of conflicts. The evidentiary discrepancies do not furnish a basis to deny an instruction on self-defense. That would be looking at the evidence in a way disadvantaging Sanders and, therefore, contrary to the applicable legal standards in determining whether to instruct on a defense.
Another case of "let the jury do its job!"

[Update: the state filed a PR on August 26, 2011.]

[Further update: the KSC denied the PR and the mandate issued on January 24, 2012.]

Friday, July 22, 2011

KSC abandons previous felony-murder lesser doctrine

Heather Cessna won in State v. Berry, No. 100,l512 (Kan. July 22, 2011), obtaining a new trial in a Sedgwick County murder prosecution. The issue resulting in reversal stemmed from a special rule previously applied in felony murder cases that instructions for lesser degrees of homicide should only be given if the evidence of the underlying felony was "weak or inconclusive." The KSC made a detailed analysis of the rule and its history, concluding that there is no basis for making an exception to the statutory rule regarding lesser included offense instructions:


Accordingly, and after thoroughly reviewing the case law developed since Germany, we find lesser included offense instructions should follow the statutory mandate so that instructions are issued if there is some evidence that would reasonably justify the conviction of the lesser included crime. In short, we would apply K.S.A. 22-3414(3) as written to felony-murder cases. We disapprove any language to the contrary in our previous opinions.

In Berry's case, and using the statutory viewpoint directed by K.S.A. 22-3414(3), we find the evidence could reasonably justify a conviction for lesser included crimes. Indeed, the evidence is undisputed that Berry fled from the traffic stop and recklessly drove down city streets at an unconscionably high rate of speed. His flight caused an automobile accident that took someone's life. Such evidence could support a conviction for second-degree reckless murder. See K.S.A. 21-3402(b) (unintentionally killing a person recklessly under circumstances manifesting extreme indifference to the value of human life). Also, the evidence could justify a conviction for involuntary manslaughter. See K.S.A. 2004 Supp. 21-3404(a) (unintentionally killing a person recklessly). And the evidence could support a conviction of vehicular homicide. See K.S.A. 21-3405 (unintentionally killing a person while operating an automobile in a manner that created an unreasonable risk of injury to the person of another and constituted a material deviation from the standard of care a reasonable person would observe under the same circumstances.). As such, the failure to issue the lesser included offense instructions amounts to reversible error when following the statutory directive of K.S.A. 22-3414(3). We reverse Berry's felony-murder conviction based on the above analysis and order a new trial on that charge.


Finally, we hold that the decision announced in this case is to have application in all pending felony-murder cases. This court previously has noted that a new rule for the conduct of criminal prosecutions is to be applied to all cases, state or federal, pending on direct review or not yet final.


This is a huge decsion in the area of felony murder procedure. I know of at least one more case that was argued the same week that may also be affected. And who knows how many more in the pipeline.

It may be part of the KSC's recent move to fully inform the jury regarding lesser included offenses and letting the jury do its job.

[Update: this case was selected as the 2011 ADO Case of the Year!)

Friday, July 08, 2011

Prosecutorial misconduct results in reversal under the Tosh test

Shawn Minihan won in State v. Simmons, No. 98,770 (Kan. July 8, 2011), obtaining a new trial in a Crawford County rape prosecution. The KSC agreed that there were two instances of misconduct: (1) improper discussion of Stockholm Syndrome and related circumstances during voir dire and (2) improper argument regarding the ongoing impact of the crime on the victim. With regard to the second instance, the state and the COA had agreed the statements were improper, but argued (or held) that the statements did not require reversal, particularly in light of the district court's admonition to ignore them. The KSC disagreed:


In contending that the misconduct did not deny Simmons a fair trial, the State appears to argue the weight of the evidence by principally pointing out that Simmons was not convicted of all crimes. More specifically, he was acquitted on the aggravated kidnapping and aggravated criminal sodomy counts, and the jury failed to reach a verdict on one of the three rape counts. The State essentially suggests that the prosecutor's comments regarding the Stockholm Syndrome were only relevant to the aggravated kidnapping charge and, because Simmons was acquitted of that charge, the misconduct obviously cannot be reversible error. "Simmons cannot demonstrate that he was prejudiced by these comments concerning kidnap victims when he was acquitted of the [aggravated] kidnapping charge." On the surface, this argument appears meritorious as an important element of aggravated kidnapping is "the taking or confining of a person, accomplished by force, threat or deception."

Upon deeper examination, however, we must disagree with the State's surface argument. The prosecutor did not instruct the jury panel during voir dire to limit its consideration of the Stockholm Syndrome to any particular crimes, especially aggravated kidnapping. As mentioned, he instead told them they should generally use the syndrome as their lens when they examined certain evidence, "I ask that you view that evidence [that A.H. maybe identified at times with Simmons] in light of the Stockholm Syndrome." As a result, the prosecutor essentially argued that despite inferences that could be drawn by the jury panel from certain evidence, A.H.'s participation in the sex acts forming the basis for four of the charged crimes was not voluntary. As in the charged crime of aggravated kidnapping, the factor of voluntariness, i.e., consent, also was an absolute defense to the sex crimes. The State needed to negate this defense for Simmons' convictions. Additionally, the jury was never told to disregard the prosecutor's discussion of the Stockholm Syndrome. Nor was it told to disregard his implication that the syndrome explained that A.H.
psychologically identified with her captor and therefore could never truly give consent. We observe the jury then convicted Simmons of two counts of rape but was unable to reach a verdict on the third. Simmons, however, relies upon his acquittals of aggravated kidnapping and aggravated criminal sodomy to argue: "The jury must have thus believed that A.H. willingly spent some of the weekend with Mr. Simmons." (Emphasis added.) Given the mixed results of the verdicts, we will not speculate as to the exact effect the State's comments had on the jury during its deliberations on all charges. But we can conclude that the prosecutor's argument that A.H. was not a voluntary participant because of the Stockholm Syndrome could easily have affected important parts of the trial.

The State makes a similar argument concerning the prosecutor's comment about A.H.'s thoughts during daily showers for the rest of her life. It contends the admonition worked "because the jury acquitted him of aggravated criminal sodomy, aggravated kidnapping and was unable to reach a verdict on a count of rape."

We must reject this argument for many of the same reasons we rejected the State's argument about the lack of prejudice caused by the Stockholm Syndrome discussion. While admittedly Simmons was not convicted of all charges, he was nevertheless convicted of two rape counts for acts committed during this entire episode. Furthermore, just as we concluded the prosecutor's argument that A.H. was not a voluntary participant because of the Stockholm Syndrome could easily have affected important parts of the trial, the prosecutor's appeal to sympathy for A.H. could have done so as well. Again, given the mixed results of the verdicts, we will not speculate as to the exact effect the showering comment had on the jury during its deliberations on all charges.

We pause to note our analysis of the shower comment technically is unfinished. Earlier we saw no valid reason for maintaining a separate, incomplete Tosh test for the specific prosecutorial misconduct scenarios described in Pink, Lumbrera, and Campbell. Similarly, we see no valid analytical reason for maintaining an incomplete Tosh test for when the effect of prosecutorial misconduct is allegedly cured by a timely jury admonition to disregard. Accordingly, the test stated and applied in Jordan and similar decisions is now clarified. As demonstrated above, we apply the Tosh test, with the extent of any ameliorating effect of a jury admonition obviously to be considered in step two when reviewing the amount of the evidence of guilt to determine whether the prosecutor's statements prejudiced the jury and denied defendant a fair trial. In this determination, however, we must also review the other factors comprising step two because no single factor is individually controlling. While ill will and gross and flagrant conduct are valid factors for consideration, for
analytical purposes we simply note that they do not appear in the shower comment.

Stating our ultimate conclusion another way, with these different verdicts demonstrating convictions, acquittals, or juror uncertainty on the six charges, we simply cannot conclude that the evidence against Simmons is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. Accordingly, we hold the prosecutor's discussion regarding the Stockholm Syndrome and comments about A.H.'s thoughts while showering combine to constitute reversible prosecutorial misconduct under both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18 (1967).
We have frequently seen the effect of split verdicts used in opposite ways by the prosecution and defense. We are always saying "It was a close decision. Any error could have affected the outcome." The prosecution is always saying "The jury really did its job, apparently without influence of the improper statements--otherwise, it would have convicted as charged." The KSC Adopts the former analysis in this decision.

Here is coverage in the Pittsburg Morning Sun.

Wednesday, July 06, 2011

KBI should follow court order

Janine Cox won in Goldsmith v. State, No. 99,041 (July 1, 2011), obtaining a reversal of a dismissal of Mr. Goldsmith's request for DNA testing pursuant to K.S.A. 21-2512. In 2000, the COA affirmed Mr. Goldsmith's aggravated kidnapping, agg burglary, rape, and agg criminal sodomy convictions. Since then, Mr. Goldsmith has been attempting to get DNA testing, including filing a request under K.S.A. 21-2512. See Goldsmith v. State, No. 86,692 (Nov. 27, 2002)(affirming denial of motion pursuant to K.S.A. 60-1507); Goldsmith v. State, No. 93,377 (Dec. 23, 2005)(reversing summary denial of request pursuant to K.S.A. 21-2512).

In March 2006, the parties agreed that the state would send 35 items to the KBI for testing and the district court so ordered.

The KBI tested one item, some sweatpants, and found that the DNA sample on those sweatpants was consistent with Mr. Goldsmith and, therefore, unfavorable to him. At that point, the KBI decided not to test any more of the items because it would "not be utilizing resources wisely." The report was submitted to the distrtict court and the district court dismissed the K.S.A. 21-2512 action. The KSC disagreed:

In Goldsmith's case, there is no question that the result of the test on the single item of evidence was unfavorable. The KBI found DNA consistent with both Goldsmith and the victim on the crotch of Goldsmith's blue sweatpants. Had the district court's order for testing been limited to the blue sweatpants, under K.S.A. 21-2515(f)(1)(A), the court would have been correct to dismiss Goldsmith's petition with no further proceedings. But we are compelled to consider the effect of failing to test the remaining 34 items of evidence agreed upon by the parties and ordered to be tested by the court.

We first observe that, in this case, the State (through the KBI) made the determination that it should stop testing when it found the first unfavorable result. The plain language of K.S.A. 21-2512 does not place the responsibility for such a decision in the hands of the State. Rather, the statute indicates only what a court may do—i.e., the court must dismiss a petition and may assess costs if the results are unfavorable; the court may order a hearing to determine further proceedings if the results are favorable; the court may hold a hearing to determine if there is a substantial question of innocence when the results are inconclusive. K.S.A. 21-2512(f). Nothing in K.S.A. 21-2512 permits the State to take any unilateral action to limit or cease testing previously ordered by the court.

The State nevertheless contends that the one unfavorable result means that the district court did not err by dismissing the petition under K.S.A. 21-2512(f)(1)(A). But this argument ignores the fact that the testing order instructed the KBI to test 35 items of evidence, not just 1 item. A single unfavorable result was not automatically enough for the district court to dismiss the petition when 34 other items of evidence remained untested.
The KSC held that, if the state did not want to test the remaining items pursuant to the district court's order, the proper remedy is to go back to the district court and seek amendment of the order, with Mr. Goldsmith present and represented by counsel.

Thursday, June 30, 2011

Rhodes headed to Prison Review Board

Here is a Wichita Eagle story reporting that Rebecca Woodman and Washburn Law Clinic intern Alan Lindeke will be presenting Ronnie Rhodes case to the Prison Review Board (the successor to the Parole Board) next week. We blogged about previous coverage of the Rhodes case here.

Tuesday, June 28, 2011

Reversal for failure to prove every element

Randall Hodgkinson won in State v. Huntington, No. 103,264 (Kan. App. April 29, 2011), obtaining the reversals of two Pawnee County convictions for battery against a mental health employee (K.S.A. 2006 Supp. 21-3448). In its holding, the court looked to the definition of "mental health employee" from K.S.A. 2006 Supp. 21-3448(c) and determined that the State failed to present sufficient evidence of essential elements of the crime.

The court held:
[T]he State was required to establish the following elements in order to sustain Huntington's conviction for battery against a mental health employee: (1) Huntington was in the custody of SRS when the alleged incident occurred on April 9, 2007; and (2) Dr. Strong and Burke were employed by SRS when the alleged incident occurred on April 9, 2007. Based on our review of the trial transcript, we find the State failed to present evidence to establish either of these elements. Although there was evidence presented that the SPTP was located in Larned State Hospital, that Huntington was civilly committed to the SPTP, and that Dr. Strong and Burke were employees of the SPTP, there was no evidence that Huntington, while in the SPTP, was in the custody of SRS or that Dr. Strong and Burke were employed by SRS.

The court also noted that the State was asking it to stack inference upon inference, which is not allowed. The court relied upon State v. Star, 27 Kan. App. 2d 930, 10 P.3d 37 (2000) (holding that there was insufficient evidence of sale of cocaine within 1,000 feet of a school because the State did not present evidence that the building in question was used by a unified school district or an accredited nonpublic school for student instruction, attendance, or extracurricular activities). In reversing the felony convictions for battery against a mental health employee, the court ordered the district court to enter judgment for two convictions of simple battery under K.S.A. 21-3412 (noting that sufficient evidence existed for convictions on the lesser offenses).

[The State did not file a petition for review. The mandate issued June 2, 2011.]

Friday, June 24, 2011

ICE "detainer" does not affect statutory speedy trial status

Patrick H. Dunn won in State v. Montes-Mata, No. 98,883 (Kan. June 24, 2011), affirming Judge Wheeler's dismissal of a Lyon County drug prosecution on statutory speedy trial grounds. The parties agreed that Mr. Montes-Mata had been held for 111-days. The only question was whether Mr. Montes-Mata was held "solely" on the Lyon County charges when an immigration "detainer" had been filed with the jail. If Mr. Montes-Mata was held "solely" on the Lyon County charges, the state had exceeded the a 90-day statutory limit; if the ICE "detainer" meant that he was not being held "solely" on the Lyon County charges and was not subect to the 90-day limit. The KSC held that the ICE document was not a "present custodial claim on a defendant" and therefore "cannot affect the speedy trial question."

On its face, the Form I-247 sent to the Lyon County Sheriff is not the equivalent of an outstanding warrant for probation revocation, parole violation, or new charges in another jurisdiction. Each of those represents a custodial claim on a defendant's presence to adjudicate existing charges or allegations. The I-247 sent to the Lyon County jail presented the interest of the ICE in clear terms, disclosing that an investigation "has been initiated" and that the ICE would like to know when the defendant was going to be released from custody in Lyon County. The ICE notice in this case is analogous to a call to a sheriff from a law enforcement agency in a neighboring county, expressing interest in one of his or her inmates and asking the sheriff for notice when the inmate is to be released. The request is for cooperation, not custody. It is not particularly helpful that the I-247 form bears the heading "Immigration Detainer--Notice of Action" since, in this case, the "action" was inconsistent with the common custodial use of the term detainer.

The I-247 sent to the Lyon County Sheriff by the ICE represented nothing more than information about the possibility of formal proceedings.

This may make a difference is some other pending cases as well.

Failure to give Bunyard instruction

Heather Cessna and Carol Longenecker Schmidt won in State v. Flynn, No. 103,566 (Kan. June 24, 2011), obtaining a new trial in a Sumner County rape prosecution. The state charged Mr. Flynn with several major felony counts stemming from an encounter with A.S. The jury acquitted Mr. Flynn of all charges, except one count of rape. On appeal the COA agreed that the district court should have given a Bunyard instruction, informing the jury regarding the law of post-penetration rape in Kansas:
Flynn testified that at the time he and A.S. ended up on the ground, the sexual encounter was consensual. A.S. told Flynn to stop after they were on the ground by saying, "No. Not on the ground." Flynn did not stop immediately and testified that it took him anywhere from 30 seconds to 2 minutes to stop. This was consistent with what he told investigators at the time. A.S. testified that at no point during the encounter was there ever consent. This was consistent with what she told investigators at the time. At the conclusion of the State's case, before Flynn even testified, the trial judge indicated some concern that, based on the evidence, the jury might send out a question regarding withdrawal of consent. Although he indicated he was not familiar with Bunyard, he indicated he would wait and deal with the issue if a jury question arose. Based on the defendant's subsequent testimony, as well as his statement to investigators at the time, and the judge's concern that the jury might be confused, we find that when viewed in the light most favorable to Flynn, a rational fact finder would be justified in finding in accordance with Flynn's theory of defense; therefore, a Bunyard instruction should have been given in this case.
Applying a clearly erroneous standard, the majority held that, particularly given the fact that the jury acquitted Mr. Flynn on five serious felony counts, there was a real possibility that a proper Bunyard instruction may have led to a different result the case. As a result, the COA reversed and remanded for a new trial.

[Update: the state filed a PR on July 25, 2011.]

[Further update: the KSC granted the PR on January 20, 2012.]

[Further update: on July 11, 2014, as blogged about here, the KSC ordered a new trial.]

Even another reversal for failure to give lesser

Darrell L. Smith won in State v. Gatlin, No. 99,091 (Kan. June 24, 2011), obtaining a new trial in an Anderson County intentional aggravated battery conviction. As noted by the KSC, the charges "arose out of a bar fight in which Gatlin bit off the tip of another man's thumb." The COA had held that Mr. Gatlin had not sufficiently preserved an issue regarding failure to give lesser included offense instructions for reckless aggravated battery. The KSC disagreed:

In this case, Gatlin's counsel made two specific requests during trial for recklessness-based lesser included instructions, both times explaining the rationale behind the requests. It was not necessary for him to repeat what had become a fruitless exercise three more times in order to preserve the issue for appellate review. He had made his position clear to the district judge and given him ample opportunity to rule correctly. This situation is distinct from those in which a precise evidentiary objection must be contemporaneous with admission under K.S.A. 60-404.
Using the proper standard of review, the KSC held that evidence supported giving the requested lesser-included offense instruction:


Viewing the evidence at trial in a light most favorable to Gatlin, a reasonable jury instructed on the elements of the two types of reckless aggravated battery and the definition of recklessness could have concluded that Gatlin engaged in reckless conduct and did not intentionally sever Hoffman's thumb. He may have chosen to continue biting Hoffman's thumb to persuade Hoffman to release the chokehold, knowing that this put Hoffman in danger and yet consciously disregarding that danger; or he may have chosen to allow Hoffman's thumb to remain in his mouth as the two men struggled, knowing but consciously disregarding the danger that they would lose their balance and hit the ground. Under Kansas' definition of recklessness, Gatlin need not have foreseen the specific harm that Hoffman suffered—losing the tip of his thumb. Although the circumstantial evidence supporting recklessness comes solely from the testimony of Gatlin, this is all that Kansas law requires before a lesser included crime instruction is warranted.


Good decision on procedure and on the merits.