Monday, March 21, 2011

Must prove all elements

Joanna Labastida won in State v. Witten, No. 103,476 (Kan. App. March 18, 2011), obtaining a reversal of a Pratt County conviction of sale within 1000 feet of a school. In order to sustain a conviction for sale within 1000 feet of a school, the state has to prove that the school was "a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12." In this case, the state put on evidence that the transaction took place near Liberty Middle School, which was operated by USD 382, but did not present any evidence of what purposes or functions took place at that building:
Although the State presented evidence that Liberty Middle School was operated by a school district, no witness testified as to whether the building was used for one of the purposes set forth in the statute. Witten justifiably relies on State v. Star, 27 Kan. App. 2d 930, 10 P.3d 37, rev. denied 270 Kan. 903 (2000). In Star, the evidence at trial established that the transactions occurred within 1,000 feet of "Hickok School." The evidence included a diagram of the area of the sale, including the school parking lot and school grounds. However, no evidence was presented that Hickok School was a structure used by a school district "for any of the uses listed in the statute." The Star court found that in order to sustain a conviction for the crime of the sale of cocaine within 1,000 feet of a school, the State was required to present evidence that the structure referred to as a school satisfied the definition in K.S.A. 1999 Supp. 65-4161(d). "Such evidence is necessary to prove a necessary element of the offense, and where lacking, a jury cannot be allowed to speculate or infer through its own observations that the structure complies with the statutory definition of a school."

On appeal, the State argues that the court should take judicial notice of the function of the school under K.S.A. 60-409 and that "[w]ell informed persons in Pratt County . . . are aware of the existence and nature of Liberty Middle School." However, the Star court specifically rejected the State's arguments that members of the jury could bring their common sense and background of experiences to take notice that the building was operated as a school.
Because the state failed to put on sufficient evidence, the COA remanded for resentencing for simple sale.

[Update: Mr. Witten filed a PR from the part of the decision he lost.]

[Further update: the KSC denied Mr. Witten's PR and the mandate issued on October 11, 2011.]

Failure to inquire into jury verdict

Carl Folsom won in State v. Gray, No. 101,481 (Kan. App. March 18, 2011), obtaining a new trial in a Reno County agg assault on a LEO prosecution. The district court failed to comply with Kansas statute, which requires that it confirm the jury's verdict in court (this is different than polling the jury, which was waived in this case). The COA cited a previous case (blogged about here) and held that failure to confirm the verdict in court left it without confidence of a unanimous verdict:
The reason why K.S.A. 22-3421 requires the trial court to inquire in open court whether the jury agrees with the verdict, even when the parties waive polling, is to ensure a defendant's constitutional right to a unanimous verdict and to safeguard the concept of finality with respect to the jury verdict.

"By requiring inquiry as to whether the verdict is the jury's verdict, K.S.A. 22-3421 gives jury members the opportunity to express disagreement with or dissent from the verdict in open court." In this case, the trial judge simplyasked the jury foreperson whether the jury had reached a verdict. At no point after having heard the verdict read in court were the jurors given an opportunity to express disagreement with the verdict. Therefore, asking the jury foreperson if a verdict has been reached does not accomplish the same objective as inquiring whether the verdict is the jury's verdict.

The trial court's failure to follow the statutory mandate of K.S.A. 22-3421 to inquire as to whether the verdict was the jury's verdict was reversible error. Consequently, a new trial is warranted in this case. To hold otherwise would ignore the importance of the requirements of unanimity and finality with respect to jury verdicts.
Here is coverage of the case in the Hutchinson News.

[Update: the state filed a PR on April 12, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on September 30, 2011.]

Thursday, March 17, 2011

Agg battery conviction reversed for failure to give lessers

Christina Waugh won in State v. Howard, No. 102,738 (Kan. App. March 11, 2011)(unpublished), obtaining a new trial in a Sedgwick County aggravated battery prosecution. The COA rejected a unanimity claim, but held that a new trial was required based on failure to give a requested lesser for simple battery:
Here, instructing the jury on the lesser included offense of battery was supported by the evidence. When a defendant is charged with aggravated battery, “if there is evidence that the harm was slight, trivial, moderate, or minor, then the trial court must give a lesser included instruction.” The record indicates that Howard put the fan cord around Johnson's neck. However, the officer that interviewed Johnson immediately after the incident did not notice any injuries other than a couple of marks on the right side of Johnson's neck. The officer did not notice the marks until Johnson pointed them out to him. Further, there was no evidence that Johnson was taken to the hospital for her injuries or that the injuries required any treatment. Since there was no evidence presented of great bodily harm or disfigurement, the jury could have convicted Howard of simple battery. Thus, the district court erred in refusing to instruct the jury on simple battery as a lesser included offense of aggravated battery as requested.
Another example of letting the jury do its job.

[Update: the state filed a PR on April 11, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on February 20, 2013.]

Thursday, March 10, 2011

Improper impeachment with prior bad acts

Heather Cessna won in State v. Cook, No. 102,375 (Kan. App. March 4, 2011), obtaining a new trial in a Montgomery County possession prosecution. At trial, Mr. Cook took the stand in his own defense and claimed that police officers planted drugs on him and then threatened to prosecute him unless he testified regarding a shooting that he knew nothing about. During cross-examination, over objection, the state cross-examined Mr. Cook about a prior possession conviction. The COA held that the evidence was improperly admitted:


The problem in the case at bar is that the trial court did not inquire of, nor did the prosecutor cite, a provision of K.S.A. 60-455 for how Cook's prior conviction was admissible. The prosecutor's rationale for admitting Cook's prior conviction was that it showed that Cook was biased, that he lied about not having a place to live in Kansas as required by the conditions of his probation, and that Cook could not just get up on the stand and lie. The court did not determine whether the evidence was relevant to prove a material fact under K.S.A. 60-455 such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.



. . . .




The State fails to establish the relevance of Cook's prior conviction under Kansas law. His prior conviction is probative because it has a tendency to prove the fact that he knew possessing marijuana was illegal. However, his prior conviction is not material because the fact that Cook knew possessing marijuana was illegal was already established by his testimony and any other way that he knew it was illegal was not a fact that is significant under the law of the case and properly at issue. Without establishing the materiality prong of the relevance test, the trial court erred in admitting Cook's prior conviction.




. . . .



Evidence to impeach a witness' credibility is relevant. However, the admission of another crime to impeach a witness' credibility is governed by K.S.A. 60-421.



K.S.A. 60-421 prevents the State from using a defendant's prior convictions for impeachment unless the defendant opens the door by introducing evidence that he or she is credible. A criminal defendant does not place his or her credibility in issue merely by taking the witness stand. See State v. Macomber, 241 Kan. 154, 157-58, 734 P.2d 1148 (1987) (reversing defendant's conviction because the State improperly questioned the defendant regarding prior crimes during cross-examination).The court in Macomber stated: "A defendant must have the right to deny the charges against him and to maintain that he has consistently done so without fearing such testimony will render evidence of other crimes admissible."





While there may be opportunities to use K.S.A. 60-455 evidence to impeach the credibility of the testifying witness, in Cook's case the prejudice of the evidence is overwhelming in comparison to the materiality of the evidence. Under the facts of this case, exactly how Cook knew marijuana was illegal and why he did not have a place to live in Kansas, does not open the door to evidence of Cook's prior conviction despite the ensuing credibility battle.


The COA held that this error, along with failure to give a cautionary instruction and some prosecutorial misconduct, required reversal.


[Update: the state did not file a PR and the mandate issued on April 7, 2011.]

Reversal for failure to give lesser [PR GRANTED]

Shawn Minihan won in State v. Simmons, No. 102,715 (Kan. App. March 4, 2011), obtaining a new trial in a Sedgwick County aggravated battery prosecution. The state charged Mr. Simmons with severity level 4 aggravated battery. At trial, the parties agreed that the district court should give a lesser-included offense instruction for simple battery, but the district court refused because the instructions had already been prepared. The jury returned a verdict of severity level 7 aggravated battery. The COA held that the district court should have instructed as the parties requested:


The crime of aggravated battery, thus, entails differing elements and punishments depending on the defendant's intent (intentional versus reckless action); the means (deadly weapon or manner with the potential for great bodily harm, disfigurement, or death); and the degree of injury to the victim (great bodily harm, bodily harm, or mere physical contact). Depending on the facts of a given case, the permutations can be both numerous and challenging. The statutory definitions effectively create several lesser included offenses within the general rubric of aggravated battery.


In addition, simple or misdemeanor battery commonly must be considered as a possible lesser included offense. As provided in K.S.A. 21-3412(a)(1), (2), battery is either "[i]ntentionally causing physical contact with another person when done in a rude, insulting, or angry manner" or "intentionally or recklessly causing bodily harm to another person." As with the levels of aggravated battery, the distinction between the misdemeanor and felony offenses may turn on the degree of harm or the means used to inflict the harm. If the victim suffers "great bodily harm," the crime necessarily is a felony. Likewise, if the defendant uses a deadly weapon or acts in a way that could cause great bodily harm, the crime is a felony even though the victim may have minor or no physical injuries.

. . . .

When a defendant has made a sufficient request for an instruction on a lesser included offense, as Simmons has here, we treat the failure to give the instruction as a question of law, since no credibility determinations or other weighing of evidence figures into the analysis. Our review, therefore, is plenary, and we owe no particular deference to the trial court's decision. Here, the trial court never really passed on the legal propriety of giving an instruction on simple battery as a lesser included offense of the aggravated battery charge. But, instead, the trial court rejected the request simply in the name of judicial efficiency.

. . . .

In considering whether the trial court should have given an instruction on simple battery as a lesser included offense, we must determine if a jury reasonably could have returned a verdict on that charge. That is, could a jury have found the elements of simple battery to the exclusion of the elements of aggravated battery? In this case, we believe so. A jury would have to find both that Terry suffered bodily harm rather than great bodily harm and that the harm was not inflicted in a manner that could have resulted in great bodily harm, disfigurement, or death. Commonly, each of those determinations presents a fact question for a given jury to resolve. Only in particularly extreme circumstances have the Kansas courts favored precluding a jury from considering those issues.

. . . .

In light of the extensive appellate authority on this issue, the trial court should have given a simple battery instruction as a lesser included offense on the aggravated battery charge against Simmons. In short, requisite issues—the degree of harm and the manner in which the defendant caused the harm—typically go to the jury for determination. On the facts here, we believe a reasonable jury could have, though not necessarily would have, returned a verdict of guilty on simple battery had that option been made available.


I have often wondered (sometimes out loud in court), why (some) courts are so reluctant to let juries to their job. Why not, as a policy matter generally give the lessers and let the jury sort it out? If the evidence of the greater offense is so strong, then the jury will convict of the greater. If the evidence of the greater offense is not so strong, that's when the jury should convict of a lesser. Judicial reluctance seems to stem from an impression that juries might convict of lessers where (in the view of the judge) it shouldn't. But that's why we have jury trials! This decision seems to agree.

[Update: the state filed a motion for rehearing on March 10, 2011. The COA denied the motion and issued a clarified opinion on March 30, 2011.]

[Further update: the state filed a PR on April 4, 2011. Mr. Simmons filed a cross-PR on April 7, 2011.]

[Further update: the KSC granted the state's PR and denied Mr. Simmons' PR on September 21, 2011.]

Saturday, March 05, 2011

Distinguishing Daniel [PR GRANTED]

Michelle Davis won in State v. Dennis, No. 101,052 (Kan. App. Feb. 4, 2011)(unpublished), obtaining reversal of several Butler County drug convictions. The main issue was whether evidence illegally obtained as the result of a vehicular search incident to arrest should be suppressed. The state relied on Daniel, a recent KSC case, which held that because a recently amended statute purported to make such searches legal, the good faith exception to the exclusionary rule applied. The COA factually distinguished that case:

We are not persuaded that Daniel controls the outcome here. First, the officer here made no claim of reliance on K.S.A. 22-2501(c), nor does the record indicate any such reliance. Second, the State has not argued (until its supplemental brief) that the officer relied on the statute; instead, the State has argued that the officer acted “within the permitted parameters of a search incident to arrest as set forth ... in New York v. Belton.” Third, here the appellant has indeed argued that the vehicle was no longer within his “immediate presence,” whereas Daniel made no such argument and the Supreme Court specifically noted the impact of this distinction in its analysis.


Here, we must engage in an analysis of a different sort; the issue here turns not on whether the officer could have objectively relied on the constitutionality of the statute, but rather on whether the officer could have objectively relied on existing case law in conducting his search of Dennis' vehicle. We have concluded he could not, and therefore the State is not entitled to a good-faith exception to the exclusionary rule.


The COA does a nice job of explaining that the state of the law regarding such searches was hardly "settled" at the time of the search in this case. As a result, the COA held the illegally obtained evidence should be suppressed:


In summary, our Supreme Court's recent decision in Daniel is not controlling here because the State has not argued and the record does not support any reliance on K.S.A. 22-2501(c). Instead, the State has urged us to hold that the search of Dennis' vehicle was based on the officer's good-faith reliance on "established law." We cannot do so because neither Kansas law nor federal law should have given the officer any comfort in searching the vehicle after Dennis was secured and no longer within the immediate presence of the interior of that vehicle.


I might also note that on February 17, 2011, I filed a cert petition in Daniel itself in light of a pending SCOTUS case involving the application of the good-faith exception to the Gant error. You can read SCOTUSblog coverage of that pending case here.


[Update: the state filed a PR on March 4, 2011.]


[Further update: the KSC granted the state's PR on May 31, 2011. The case will likely be argued late next fall.]

Thursday, March 03, 2011

Iowa has a state constitution

The Iowa Supreme Court became the first state supreme court to reject the wholesale stripping of privacy rights for parollees, as described by the SCOTUS in Samson v. California, 547 U.S. 843 (2006). Relying on its state constitution, the Iowa Supreme Court, in State v. Ochoa, 08-0412 (Iowa Dec. 17, 2010), held that parollees retain a privacy interest in their private homes.

The case presents a nice primer on state constitutional law jurisprudence. The Iowa Supreme Court observed that it had historically treated with a "lockstep" approach, where "a state court adopts prevailing federal authority in its interpretation of parallel state constitutinal provisions, even though theoretically recognizing their independent nature." This is almost univerally the approach used by the Kansas Supreme Court with regard to constitutional criminal procedure questions.

The Iowa Supreme Court held that it would no longer use this approach:
In order to resolve any inconsistency in our prior cases, we now hold that, while United States Supreme Court cases are entitled to respectful consideration, we will engage in independent analysis of the content of our state search and seizure provisions. A Fourth Amendment opinion of the United States Supreme Court, the Eighth Circuit Court of Appeals, or any other federal court is no more binding upon our interpretation of article I, section 8 of the Iowa Constitution than is a case decided by another state supreme court under a search and seizure provision of that state‘s constitution. The degree to which we follow United States Supreme Court precedent, or any other precedent, depends solely upon its ability to persuade us with the reasoning of the decision.

This approach requires the state supreme court justices to independently determine, for example, whether a given type of search is "reasonable" under the state constitution. I think this is the right approach for any judicial officer that has taken an oath to uphold the constitution of a particular state.

Using this approach, the Iowa Suprme Court held that parollees continue to have privacy rights in their private homes:
Even assuming a role for balancing, we believe that the Samson approach undervalues the importance of a parolee‘s interest in the home. The home plays a central role in a person‘s life, providing sanctuary, comfort, seclusion, security, and identity. The sanctity of the home was a prominent part of the legal landscape in the Wilkes and Paxton cases and has been repeatedly emphasized by the United States Supreme Court. Invasions of the home by government officials cannot be regarded as constitutionally insignificant. As in the majority opinion in Katz, we find that the protection afforded by article I, section 8 extends beyond privacy and includes at least some notion of place and security.

. . . .

We also think Samson is fundamentally flawed by regarding a parolee as more akin to a prisoner than a probationer. It may be conceded that a prison "shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." Yet, a parolees home is nothing like a prison cell. Instead, it is indistinguishable from the home of any other citizen. As noted in Morrissey v. Brewer, 408 U.S. 471, 82 (1972), the condition of a parolee is "very different from that of confinement in a prison."

. . . .

In sum, we reject the holding of Samson under the Iowa Constitution. We conclude that a parolee may not be subjected to broad, warrantless searches by a general law enforcement officer without any particularized suspicion or limitations to the scope of the search. The power asserted by the State in this case too closely resembles authority pursuant to a general warrant, provides no meaningful mechanism to control arbitrary searches, avoids the warrant preference rule that this court has traditionally recognized, utilizes a balancing test that improperly weighs the interests involved, and does not adequately recognize the security and sanctity interests of parolees in their home.

A lot of background in this case, both on state constitutional law and the law regarding parollees and privacy.

New Mexico has a state constitution

The New Mexico Supreme Court, in State v. Levya, No. 32,067 (N.M. Feb. 17, 2011), applied its state constitutional provisions prohibiting unreasonable searches and seizures to clarify that officers conducting a legitimate traffic stop should be limited to questioning related to that traffic stop. Even though the SCOTUS has recently watered down the "scope" limitation in such situations, many state supreme courts are holding fast under their state constitutions. The New Mexico Supreme Court aptly described its rationale:
Requiring a reasonable justification for the initial stop and that all questions asked during the stop be reasonably related to the reason for the stop or otherwise supported by reasonable suspicion … ensures that investigating officers do not engage in ‘fishing expeditions’ during traffic stops.

It's nice to see a state supreme court apply both the letter and spirit of its state constitution to protect its citizens from overreaching police activity.

Tuesday, March 01, 2011

FSA applied retroactively

Kirk Redmond won a sentencing victory today in in U.S. v. Terez Warren, Case No. 10-20125-01 (D. Kan.), when Judge Vratil held that the Fair Sentencing Act (modifying the mandatory minimums to reduce the sentencing disparity between crack an powder cocaine) applied to Mr. Warren despite the fact that his offense conduct pre-dated the FSA.

The FSA, which became effective November 1, 2010, does not specifically include language supporting its retroactive application. Nonetheless, there are several arguments that the FSA should apply to those persons who committed their crimes before the law became effective but who are being sentenced afterwards. See U.S. v. Douglas, Case No. 09-202-P-H (D. Me. 2010) (applying the FSA retroactively).

In an oral ruling, Judge Vratil held that Judge Hornby's opinion in Douglas was persuasive. Judge Vratil further held that the language in U.S. v. Lewis, 625 F.3d 1224 (10th Cir. 2010), stating that the FSA is not retroactive did not apply to these facts, as sentencing was still pending in Mr. Warren's case. Redmond also argued that Lewis provides supportive dicta to applying the FSA to all pending sentencings. However, Judge Vratil did not decide this issue. Nonetheless, this is a very good win for Kirk and a good sign for anyone who practices federal criminal defense in Kansas City.