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 Aug. 19, 2011)(unpublished), obtaining a new trial in a Saline County rape prosecution.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.]