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.

Monday, June 06, 2011

Failure to give lesser requires reversal

Rick Kittel and KU Defender Project intern Kimberly Atchinson won in State v. Taylor, No. 101,224 (Kan. App. June 3, 2011), obtaining a new trial in a Reno County aggravated battery prosecution. A jury convicted Mr. Taylor of severity level 4 agg battery after the district court refused his requests for all lesser severe forms of aggravated battery and self-defense. The COA upheld the denial of self-defense, but agreed that the district court should have given a lesser included offense instruction for causing something less than great bodily harm:


Generally, wherther the bodily harm was great is a question of fact for the jury. There are some limited exceptions to this rule. For example, certain physical invasions of the body--such as rape, sodomy, and "through and through" gunshot wounds--are instances of great bodily harm that don't require aggravated battery's lesser-included instruction.

Kansas courts have also been persuaded to instruct only on great bodily harm where lasting effects from the injury exist.


This case involves physical invasion--a knife penetrated David's skin twice-and some lasting effects--David's scar wounds. But David's injuries were not as severe as other victim's penetration injuries that this court has found to be great bodily harm that required no lesser-included instruction. [Long list of cases involving various levels of bodily harm.]

As these cases show, a broad spectrum of possible injuries exists. Because of this broad spectrum, usually the jury, not the judge, should analyze the factual nuances in the severity of the victim's injury and determine whether the bodily harm is great or not.

In this case, a jury could have reasonably concluded that David's injuries were less than great bodily harm. Although David was stabbed in two potentially life-threatening areas, tests showed no serious harm, and the doctor testified that David would most likely fully recover.

The COA also held that the district court improperly admitted testimony from the arresting officer regarding his opinion that whether Mr. Taylor was justified in using the knife in self-defense:

Here, the district court made a legal error when it admitted [the officer's] opinions because the opinions didn't conform to K.S.A. 60-456(a)'s requirements for allowing non-expert witness opinion testimony. Non-expert witnesses may only give opinions that are based on their perceptions and that are helpful to understanding their testimony.
The COA agreed that the officer wasn't testifying about things he had perceived nor were they helpful in clarifying his direct-examination testimony.

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