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.