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 Sept. 23, 2011)(unpublished), affirming Judge Parrish's suppression order in a Shawnee County DUI case.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.