Saturday, December 29, 2012

January 2013 KSC Docket

Here are the criminal cases on the KSC docket for January 28-31, 2013.  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.

January 28--Monday--a.m.

State v. Jonell Lloyd, No. 104,392 (Sedgwick)
Direct appeal; First-degree murder (premeditated)
Debra J. Wilson
[Affd/Vacd; Biles; May 30, 2014]
  1. Insufficient evidence
  2. Failure to exclude witness' involuntary statement
  3. Improper prior bad act evidence
State v. David Stevenson, No. 103,508 (Gove)
Direct appeal; First-degree murder (premeditated)
Ryan J. Eddinger
[Affirmed; Luckert; April 12, 2013]
  1. Failure to provide reasonable doubt instruction
  2. Prosecutorial misconduct during voir dire
  3. Improper burden of proof instruction

January 29--Tuesday--a.m.

State v. Miguel Garcia, No. 104,998 (Shawnee)
Direct appeal; First-degree felony murder
Debra J. Wilson
[Rvd/rmd; Johnson; April 26, 2013]
  1. Denial of motion to suppress statements
  2. Improper rebuttal evidence
  3. Gruesome photographs
State v. Michael Hensley, No. 102,055 (Saline)
Direct appeal (petition for review); No tax stamp
Randall L. Hodgkinson
[Affd/Rvd; Mortiz; December 6, 2013]
  1. Failure to compel production of witness
  2. Insufficient search warrant affidavit
  3. Possession of marijuana as lesser of no tax stamp
State v. Eric Ochs, No. 104,710 (Douglas)
Direct appeal; Rape
Joanna Labastida
[Affirmed; Nuss; August 16, 2013]
  1. Prosecutorial misconduct
  2. Cruel and unusual punishment

January 30--Wednesday--a.m.

State v. Ryan Cox, No. 103,674 (Labette)
Direct appeal; Agg crim sodomy
Rebecca L. Kurz
[Rvd/rmd; Beier; June 21, 2013]
  1. Public Trial Clause violation
  2. Improper exclusion of third party statement
  3. Failure to give character evidence instruction
 State v. James Qualls, No. 104,504 (Shawnee)
Direct appeal; First-degree murder (premeditated)
Charles S. Scott, Jr.
[Rvd/Rmd; Biles; April 12, 2013]
  1. Failure to give lesser for voluntary manslaughter
  2. Insufficient evidence

January 31--Thursday--a.m.

State v. Melissa Wells, No. 104,092 (Montgomery)
Direct appeal; First-degree felony murder
Michelle A. Davis
[Aff/Vac; Beier; June 28, 2013]
  1. Failure to give lesser of felony murder (Berry)
  2. Failure to give prior bad act limiting instruction
  3. Prosecutorial misconduct
  4. Failure to appoint substitute counsel
  5. Alternative means (felony murder)
  6. Improper exclusion of defense evidence

Friday, December 28, 2012

Does Carachuri-Rosendo overrule U.S. v. Hill?

A few years ago, in United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), the Tenth Circuit grappled with 18 U.S.C. 922(g) and whether a prior Kansas crime was "a crime punishable by imprisonment for a term exceeding one year," under 18 U.S.C. § 922(g)(1), when the Kansas guideline range applicable to the person was, at the top end, less than or equal to one year.  Ultimately, the court ruled that defendant's prior Kansas conviction constituted a qualifying felony required to support his federal conviction for "felon in possession of a firearm" because the maximum possible sentence, with the highest possible criminal history (criminal history A), could have taken the sentence to a term of more than one year.

The Hill decision was significant because it made many Kansas defendants who had been convicted of low-level state felonies prohibited persons under 18 U.S.C. § 922(g)(1).  For example, Hill had committed a severity level 8 felony in Kansas, and the presumptive guidelines range for his offense was 9 to 11 months.  But he was considered a felon under 18 U.S.C. § 922(g)(1), and thus prohibited from possessing a gun or ammunition, because his conviction could have been "a crime punishable by imprisonment for a term exceeding one year" - if his criminal history had been worse.

The opinion in Hill had a great impact on federal defendants, as there are several federal statutes that use similar language requiring a prior conviction or sentence to have been for a "a crime punishable by imprisonment for a term exceeding one year."  See, e.g., 18 U.S.C. § 922(g)(1); 18 U.S.C. § 924(e); 21 U.S.C. § 841; 21 U.S.C. § 802(44); U.S.S.G. § 2K2.1, U.S.S.G. § 4B1.1; U.S.S.G. § 4B1.2.

The Hill opinion (and the earlier opinion - before the court flip-flopped) was blogged about here, here, and here by the Kansas Federal Defender blog.  The original opinion was also discussed here by this blog.

The court held that United States v. Rodriquez, 553 U.S. 377 (2008) (discussing similar language in 18 U.S.C. § 924[e]) controlled and that the U.S. Supreme Court mandated that the analysis should focus on the maximum possible sentence for the predicate crime of conviction and not the maximum sentence for a particular offender based on their criminal history.  The Hill court also relied upon the Fourth Circuit's decision in United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).

Is Hill still good law?

 In Carachuri–Rosendo v. Holder, 130 S. Ct. 2577 (2010), the U.S. Supreme Court clarified the definition of "aggravated felony" for immigration purposes (if someone has a prior conviction for an aggravated felony, they are automatically deported).  8 U.S.C. § 1101(a)(43)(B) defines that term to include, inter alia, “illicit trafficking in a controlled substance . . . including a drug trafficking crime” as defined in 18 U.S.C. § 924(c), which, in turn, defines a “drug trafficking crime” as a “felony punishable under,” inter alia, “the Controlled Substances Act (21 U.S.C. 801 et seq.)."  For purposes of this analysis, a felony is a crime for which the “maximum term of imprisonment authorized” is “more than one year.”  18 U.S.C. § 3559(a).

Carachuri–Rosendo held that that a second or subsequent conviction on a simple drug possession charge is not an "aggravated felony" for purposes of the Immigration and Nationality Act (INA) when the state conviction is not based on the fact of a prior conviction.  In other words, the government cannot rely on a state misdemeanor drug possession conviction as an aggravated felony simply because the offense could have been charged as a felony.  Here is analysis of the case from Scotusblog.

In United States v. Haltiwanger, 637 F.3d 881, 883 (8th Cir. 2011), the Eighth Circuit used the holding in Carachuri–Rosendo and the earlier holding in Rodriquez to determine whether a prior Kansas a drug tax stamp conviction qualifies as a felony under 21 U.S.C. § 841(b)(1):
After reconsidering our decision in light of Carachuri–Rosendo, we now believe the magistrate judge's analysis of the Rodriquez decision was sound. Because the Kansas sentencing structure links maximum terms of imprisonment directly to a particular defendant's recidivism (or lack thereof), we believe Carachuri–Rosendo and Rodriquez require us to take into account the seven-month cap on Haltiwanger's individual sentence when determining whether the tax stamp conviction qualifies as a felony under 21 U.S.C. § 841(b)(1).
The court went further:
Thus, where a maximum term of imprisonment of more than one year is directly tied to recidivism, Carachuri–Rosendo and Rodriquez require that an actual recidivist finding—rather than the mere possibility of a recidivist finding—must be part of a particular defendant's record of conviction for the conviction to qualify as a felony.
Haltiwanger, 637 F.3d at 884.  The Eighth Circuit's decision in Haltiwanger seems to be in direct conflict with the Tenth Circuit's holding in Hill, even though Hill dealt with 18 U.S.C. § 922(g)(1) instead of 21 U.S.C. § 841(b)(1).  

The Fourth Circuit recently made a similar holding in U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011).  Simmons held that government could not rely on a hypothetical criminal history enhancement or hypothetical aggravating factors to set the maximum term of imprisonment for a state prior conviction under Controlled Substances Act (CSA).  The court relied favorably upon Haltiwanger, in which the Eighth Circuit made a similar holding regarding the Kansas Sentencing Guidelines. The court also overruled its earlier decision in Harp, which was relied upon by the Tenth Circuit in Hill.

Although Hill was not discussed by the Fourth Circuit in Simmons or by the Eighth Circuit in Haltiwanger, it appears that both circuits believe that the Supreme Court's decisions in Carachuri–Rosendo and Rodriquez require a different outcome than that reached in Hill.  For example, the Fourth Circuit has specifically applied the holding in Simmons to cases involving 18 U.S.C. § 922(g)(1).  See United States v. Ross, 447 F. App'x 493 (4th Cir. 2011) (unpublished).  The Fourth Circuit's view of Carachuri–Rosendo and Rodriquez is directly contrary to the Tenth Circuit's opinion in Hill.

Thus, it seems that at least two circuit courts believe that the U.S. Supreme Court's decisions in Carachuri–Rosendo and Rodriquez require a different outcome than that reached by the Tenth Circuit in Hill.  One might say that this is simply a circuit split on whether hypothetical criminal history can be used to determine whether a prior state conviction is "a crime punishable by imprisonment for a term exceeding one year" for purposes of 18 U.S.C. § 922(g)(1).  But the case law, post-Carachuri–Rosendo, seems be pretty clear that Hill would not survive Carachuri–Rosendo.

The impact - if U.S. v. Hill were to be overturned.

In the Fourth Circuit, the impact of Simmons has been huge.  There are estimates that thousands of convicted felons, under North Carolina law, are no longer considered prohibited persons under 18 U.S.C. § 922(g)(1).  In Kansas, the result would likely be the same, as Kansas' sentencing guidelines are very similar to North Carolina's.  As stated above, the language used in  18 U.S.C. § 922(g)(1) making a felony "a crime punishable by imprisonment for a term exceeding one year," is used many times in federal law.  For a detailed analysis of how the overturning of Hill could impact federal defendants, I suggest reading Melody Evan's blog post on the original Hill decision.  As she stated at the time, "Go back and look at the state court judgment on your client's prior Kansas conviction, see what that sentencing box says. It could make a world of difference, from a lesser sentence to an outright defeat of a felon-in-possession charge."

Thought police not needed

Michelle A. Davis won in State v. Ta, No. 104,241 (Kan. Dec. 28, 2012), reversing a Sedgwick County two aggravated indecent liberties convictions.  The case involved some objectively innocent touching of a couple of young girls although evidence was also presented of improper intent.  The question was whether innocent touching with improper intent constituted lewd fondling or touching.  The KSC reviewed its prior case law and clarified that it did not:
On close reading of the Wells decision, we conclude the Wells court mislabeled its summary as a definition of one element of the crime of indecent liberties with a child—the element of a "lewd fondling or touching"—when the court was actually restating both elements of the crime in commonly understood terms. This mislabeling is made apparent by a reading of the Wells court's prior discussion of the definition of "lewd" because in that more expanded discussion the court defined the criminal act element by looking at the definition of lewd and determining the element was aimed at an act that tends to undermine the morals of the child and which is so clearly offensive as to outrage the moral senses of a reasonable person. Intent was not a part of the discussion. Subsequent decisions of this court verify that the focus must be on the nature of the act.
The KSC went on to clarify that improper intent must be coupled with an improper act:
Here, the trial judge's findings similarly collapsed the two elements into one, and the State perpetuates this error on appeal by arguing the strong evidence of intent is proof Ta's acts were lewd. This interpretation of the law reverts to the crime found to be unconstitutionally vague in Conley; it makes any fondling or touching a violation of the statute as long as the act is performed with a lewd intent. To avoid this constitutional infirmity, there must be evidence that the act was lewd, and this element should not be dependent upon the subjective intent of a defendant.
To hold otherwise would allow punishment for impure, criminal thoughts, and it is a fundamental principle that "the law does not punish criminal thoughts." United States v. Shabani, 513 U.S. 10, 16, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994); see [United States v. Apfelbaum, 445 U.S. 115, 131 n. 13, 100 S. Ct. 948, 63 L. Ed. 2d 250 (1980)] (observing that Shakespeare had expressed sound legal doctrine when he wrote a person's "'acts did not o'ertake his bad intent;/And must be buried but as an intent/That perish'd by the way: thoughts are no subjects,/Intents but merely thoughts.' Measure for Measure, Act V, Scene 1; G. Williams, Criminal Law, The General Part 1 [2d ed. 1961.]"). Both a criminal act, an actus reus, and a culpable mental state, a mens rea, are required for the offense to occur.
In summary, a defendant's mental state should not be used to define or determine whether a touching is lewd. We, therefore, clarify Wells and hold that whether a touching is lewd should be determined by considering the common meaning of the term "lewd," that is whether a touching is "sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; indecent, obscene, or salacious."
Although the KSC agreed that the touching in the instant case, although awkward, was not lewd.  As a result, the convictions are reversed.  Apparently (and thankfully), we won't be hiring thought police any time soon.

Right to conflict-free counsel at probation revocation

Carl Folsom, III and Carol Longenecker Schmidt won in State v. Galaviz, No. 101,084 (Kan. Dec. 28, 2012), obtaining a new probation revocation hearing in a Ford County aggravated indecent liberties prosecution.  The KSC reviewed several SCOTUS cases and its own cases and concluded that there is a constitutitonal right to conflict-free counsel at a probation violation hearing:
These authorities lead us to conclude a Kansas criminal defendant has a constitutional right to effective assistance of counsel in a probation revocation proceeding under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This right includes the right to conflict-free counsel. Even though the source of this right is not the Sixth Amendment to the United States Constitution, cases applying the effective assistance of counsel guarantee of the Sixth Amendment can be used to analyze Fourteenth Amendment ineffective assistance of counsel claims because the governing principles and policies are coextensive. Consequently, Galaviz was justified in relying on Sixth Amendment cases. Hence, although we consider Galaviz' right to conflict-free counsel to arise under the Fourteenth Amendment rather than the Sixth Amendment, we conclude he is entitled to relief if he can meet his burden.
The KSC went on to overrule previous Kansas caselaw that persons who are provided conflicted counsel are entitled to automatic reversal absent an objection, but held that Mr. Galaviz should get a new hearing because the record was insufficient to establish that he was not entitled to relief, particularly where the prejudice was the waiver of an evidentiary hearing:
Certainly, if we were to apply Strickland's prejudice test, we would conclude that Galaviz' admission to the violations most likely did not change the outcome of the proceeding.
But that is not our test. Here the question is whether Cowell's active conflict of interest had an adverse effect on his representation. Ultimately, it may be that the answer is that it did not and that it was the new convictions that influenced the decision to admit to the alleged probation violations. However, the record before us does not provide any information regarding the reasons the strategy was changed. Further, Galaviz had a right to insist on an evidentiary hearing even if it was likely, or even virtually certain, that he would not prevail. Cf. Kargus v. State, 284 Kan. 908, 924-25, 169 P.3d 307 (2007) (noting distinction between attorney's performance denying defendant a fair proceeding, where Strickland presumption of reliability applies, and depriving defendant of a right to a proceeding, where presumption cannot apply because proceeding did not occur). In other words, we disagree with the Court of Appeals' conclusion that the record on appeal is adequate to allow us to assess this or the other allegations of adverse performance that Galaviz has asserted. As the United States Supreme Court stated in Wood, we are unable to "be sure whether counsel was influenced in his basic strategic decision by the [conflicting] interests . . . ."
Because the record was not sufficient, the KSC remanded for further proceedings.

Friday, December 21, 2012

Improper instructions require new manslaughter trial

Carl Folsom, III, won in State v. Rivera, No. 105,834 (Kan. App. Dec. 21, 2012), obtaining a new trial in a Leavenworth County misdemeanor-manslaughter case.  Ms. Rivera was prosecuted after her boyfriend pleaded guilty to second degree murder in the death of her son.  The state alleged that Ms. Rivera had endangered the child and that his death resulted.

The COA rejected sufficiency, improper argument, and defective complaint issues, but agreed that a couple of instructional issues required a new trial.  First, the jury instructions failed to set out the elements of endangering a child in connection with the misdemeanor-manslaughter charge.  Although the elements were apparently set out in a different count, the manslaughter count did not incorportate them by reference.  As a result, the COA held the jury was not correctly informed on the elements of manslaughter.

Separately, the COA also held that, because the state relied on two factually distinct acts (on different days) for endangering a child, the state should have elected an act or the district court should have given a unanimity instruction:
The jury convicted Rivera of endangering a child. However, the problem is that the jury could have convicted Rivera of endangering a child based upon the events that occurred on October 1 or the events that occurred on October 4. The issue is exacerbated by the fact that the State's involuntary manslaughter charge required the State to prove the endangering a child misdemeanor as a necessary element of that offense, and the amended complaint specified that the events in question related to the involuntary manslaughter charge occurred on October 4. The jury convicted Rivera of both involuntary manslaughter and endangering a child. Thus, there is a possibility that the jury could have convicted Rivera of both offenses based upon the same events from October 4.
In order to confirm that the jury did not do this, the State has to elect which act or incident it is relying upon to support each charge, or the district court has to give a unanimity instruction. Here, the district court did not give a unanimity instruction, and the State never elected which act it was relying upon to support each of the charges. A review of the trial transcript containing the State's closing argument reveals that the State argued to the jury that the events of October 1 through October 4 were a continuous and related set of events that led up to the killing of G.R. by Jones. Accordingly, there is no way of knowing whether the jury convicted Rivera based solely on the events of October 4, or whether it convicted her of endangering a child based upon the events of October 1 and involuntary manslaughter based upon the events of October 4. Thus, Rivera's convictions must be reversed and the case remanded for a new trial.
Here is a Leavenworth Times article about the trial and sentencing in this case.  And here is another article about the appeal.

[Update: the state did not file a PR and the mandate issued on January 24, 2013.]

Tuesday, December 18, 2012

Can't require evidentiary breath test without arrest for alcohol related offense

The KSC issued a couple of decisions related to K.S.A. 8-1001 and when officers can require a driver to take an evidentiary breath test.  In Sloop v. KDOR, No. 103,334 (Kan. Dec. 14, 2012), Kenneth B. Miller won reinstatement of driving privileges in a Shawnee County administrative action.  In Shrader v. KDOR, No. 103,176 (Kan. Dec. 14, 2012), Daniel C. Walter won reinstatement of driving privileges in a Decatur County administrative action. 

K.S.A. 8-1001 provides that officers can require a driver to take an evidentiary breath test in the following circumstances:
the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both . . . and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, . . . in violation of a state statute or a city ordinance . . .
The question in Sloop was whether a valid arrest was a predicate to such a demand.  The question in Shrader was whether the arrest had to be for a DUI offense.  The KSC answered each case in favor of the driver.  In Shrader, the KSC held that while the officer had reasonable suspicion to detain, he lacked probable case to arrest:
We conclude the officer's statutory authority to request Sloop to take the breath test depends upon a valid arrest. We additionally conclude the arrest was invalid because the officer had no probable cause to support it. And we further conclude Sloop's refusal to take a breath test the officer had no statutory authority to request cannot be the basis for suspending his driving privileges under K.S.A. 2008 Supp. 8-1014(a)(1).
In Shrader, the KSC overruled previous COA caselaw that stood for the proposition that arrest for any offense would trigger the mandatory evidentiary breath test:
The Counseller panel's interpretation of this same phrase—that the mandatory condition is instead an "arrest arising out of the operation of a vehicle for any offense in violation of a state statute or a city ordinance"—ignores the statute's plain language. More specifically, it reads the limiting language out of the statute.
This interpretation may have reflected the Counseller panel's conclusion that the district court's reading of K.S.A. 1995 Supp. 8-1001(b)(1) ("the person has been arrested . . . for any offense involving operation . . . of a vehicle while under the influence") was redundant with the condition mentioned earlier in subsection (b). More specifically, that condition in subsection (b) somewhat similarly states that "the officer has reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol."
We not only conclude that the Counseller panel was wrong to disregard the plain language of 8-1001(b)(1), but we also conclude that the two provisions—(b) and (b)(1)— can peacefully coexist. Redundancy, if any, is legislatively purposeful. Simply put, under K.S.A. 8-1001(b), if (1) the officer believes the person is operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, and (2) the officer arrests the person for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, then (3) the officer becomes authorized to request the test.
As an aside the KSC noted its recent rule change that letters of additional authority must be filed at least 14 days before argument.  In the Shrader decsion, the KSC chastised the KDOR for filing a letter the day before argument.  Appellate practioners would be wise to review their cases well before that deadline if argument is approaching!

Here is coverage of the cases in the Topeka Capital-Journal.

Wednesday, December 12, 2012

Seventh Cicuit applies right to bear arms outside the home

In Moore v. Madigan, No. 12-1269 (7th Cir. Dec. 11, 2012), the Seventh Circuit ruled yesterday that the individual right to bear arms extends beyond the home.  In doing so, the court struck down Illinois' outright ban on the concealed carry of firearms.  This is an issue that has not been directly decided by the U.S. Supreme Court, but which might be next up this developing area of the law.  Here is an article on the case by the Chicago Sun-Times. 

The Kansas Court of Appeals similarly addressed an outright ban on concealed carry of firearms in State v. Knight, 44 Kan. App. 2d 666 (2010).  In that case, I argued that the pre-2007 ban on concealed handguns (before the Kansas Legislature passed its concealed carry law) violated the Second Amendment based on District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment creates an individual right to possess firearms for self-defense).  I also made a similar argument under the former and current language in Section 4 of the Kansas Constitution Bill of Rights, which was amended in 2010.  The court ultimately ruled that Heller did not confer an individual right to carry a concealed firearm outside the home. 

In  Moore, the Seventh Circuit held just the opposite, stating "The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside."  Thus, there is now a split of authority between Kansas and the Seventh Circuit on the important issue of whether the individual right to bear arms extends beyond the home.

On a first glance, it might not seem like this case has much importance in Kansas.  After all, Kansas has a concealed carry law for handguns, and Illinois is the only state that does not.  But K.S.A. 21-6302 still makes it unlawful to carry other concealed weapons outside the home, even when they are for self-defense.  And there is no exception in the statute for any concealed carry license of a knife or other similar weapon.  A ruling by the U.S. Supreme Court that the right to bear arms extends beyond the home would make K.S.A. 21-6302 mostly unconstitutional (because "arms" does not just mean "guns").  In addition, Kansans are regularly stopped by the police because there was a report of a gun or weapon being sighted.  If the right to bear arms is applied outside the home, there will be an even stronger argument that an investigatory detention based on a report of a weapon being sighted is not based on reasonable suspicion that a crime has been committed.

Its also important to remember that the Second Amendment issue does not even take into account the new language of Section 4 of the Kansas Constitution Bill of Rights, which was amended in 2010.  The section now states in part, "A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose. . . ."  The Kansas Supreme Court denied the final petition for review in Knight, which asked for this new amendment to apply to the prior ban on concealed carry of firearms.  But the Kansas Constitution could ultimately trump any ruling by the U.S. Supreme Court on the matter.  Even if the U.S. Supreme Court says that the right to bear arms for self-defense does not apply beyond the home (an extremely unlikely ruling in my opinion, based on what they have already said), the Kansas Constitution uses different language than the Second Amendment, and there should be some meaning given to this difference.    

Sunday, December 09, 2012

Rare Habeas win in COA

Dan Monnat won in In re Weimer, No. 106,862 (Kan. App. Nov. 30, 2012) (unpublished), an original habeas action in the Court of Appeals challenging a Labette County prosecution for aggravated indecent liberties with a child based on lewd fondling or touching.  Ultimately, the court granted the writ and ordered the district court to dismiss the charge of aggravated indecent liberties with a child - lewd fondling or touching based on the doctrine of collateral estoppel.

The Court of Appeals explained the procedural history of the case as follows:
In this original action for a writ of habeas corpus, Brian Weimer asserts that the State's prosecution of aggravated indecent liberties with a child is barred by double jeopardy protections. In a previous trial that included other charges, Weimer was charged with aggravated indecent liberties with a child based on sexual intercourse, but the jury was instructed on aggravated indecent liberties with a child based on lewd fondling or touching. Weimer was convicted of one count of rape and one count of aggravated indecent liberties with a child, but the conviction was overturned based on ineffective assistance of trial counsel. On remand, the State amended the complaint to include one charge of rape and one charge of aggravated indecent liberties with a child based on lewd fondling or touching. Weimer moved to dismiss the amended charge of aggravated indecent liberties with a child, but the district court denied the motion.

Weimer then filed this original action for a writ of habeas corpus, claiming that he was being wrongfully detained on the charge of aggravated indecent liberties with a child. This court has jurisdiction to hear Weimer's original petition for a writ of habeas corpus under K.S.A. 60–1501(a). This court initially denied Weimer's petition on the ground that it was interlocutory in nature, but Weimer petitioned for review, and our Supreme Court remanded to this court for consideration on the merits. Weimer now asserts that his prosecution on the amended charge of aggravated indecent liberties with a child based on lewd fondling or touching is barred by the compulsory joinder rule. We agree. Thus, we grant Weimer's petition for a writ of habeas corpus and direct the district court to dismiss the amended charge of aggravated indecent liberties with a child.
The State actually conceded that the elements of collateral estoppel were met with the charge of aggravated indecent liberties with a child based on lewd fondling or touching.  But the State argued that the court should treat the issue as if there had been a defective complaint.  The court rejected this argument.  The State made other unsuccessful arguments that Weimer had actually been charged with aggravated indecent liberties with a child - lewd fondling or touching, based on the statutory citation to the correct offense in the complaint, and the State argued alternatively that the district court had "amended" the complaint at trial by instructing the jury on aggravated indecent liberties with a child based on lewd fondling or touching.

Rejecting the State's arguments, the court concluded:
Because all the required elements of the compulsory joinder doctrine are met, this court finds that the State's prosecution of aggravated indecent liberties with a child based on lewd fondling or touching is barred by double jeopardy. Accordingly, this court grants Weimer's petition for a writ of habeas corpus and directs the district court to dismiss count two of the third amended complaint charging Weimer with aggravated indecent liberties with a child. Nothing in this opinion shall be construed to prohibit the State from prosecuting the charge of rape against Weimer.
Judge Bruns filed a dissenting opinion.  He explained, "I do not agree that an original action in habeas corpus is an appropriate vehicle to challenge one count of a multiple count complaint containing other valid charges. Furthermore, I fear that the holding in this case unnecessarily expands the parameters of habeas corpus and encourages criminal defendants to abuse this extraordinary remedy." 

Based on Judge Bruns' dissent, and the unusual procedural history of the case, it is somewhat surprising that the opinion was not published.  But this just serves as a reminder that there are other procedural avenues available to defendants rather than waiting around and having to go through the time and expense of a trial.  Although it should be noted that Weimer filed his habeas action in October of 2011 and did not receive a decision until November 30, 2012.

Friday, December 07, 2012

Search exceeded scope of stop

Meryl Carver-Allmond won  in State v. Spagnola, No. 101,521 (Kan. Dec. 7, 2012), reversing a Shawnee County possession conviction.  The KSC first rejected the COA's rationale that Mr. Spagnola had failed to preserve this issue when he had repeatedly objected immediately before a bench trial before the same judge that heard the suppression hearing.  Under these circumstances, the KSC held that a party need not object again at the bench trial to preserve the issue.

On the merits, the KSC held that the stop and intial detention was lawful, but that the search exceeded the scope of that proper stop and detention:
Although the initial stop was predicated on a traffic violation, the detention continued less out of a concern about impaired driving and increasingly out of a concern about stolen property. The possible stolen property was in the backseat of Spagnola's car, not on his person. The only justification for the pocket search was for Jones' safety. 
Under the United States Constitution, Jones was allowed to conduct a pat-down search of Spagnola's clothing. In the course of an investigatory detention, a police officer may conduct a pat-down search for weapons that might pose a danger to the officer.  In order to justify a pat-down search of a driver or a passenger during a traffic stop, the police officer must harbor reasonable suspicion that the person subjected to the search is armed and dangerous.  A warrantless Terry stop is permissible under the Fourth Amendment because of its limited nature and because of the officer's narrow scope of authority.
There was no reason, however, for Jones to expand the pat-down search. Such a search exceeds the narrowly crafted exception that Terry created for the purpose of police protection. 
During a Terry stop, a police officer may conduct a pat-down search only when nothing in the initial stages of the encounter dispels his or her reasonable fear for his or her own or others' safety. In such an instance, the officer may conduct a "carefully limited search of the outer clothing" to determine whether the individual has weapons that might be used against the officer.
"In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest."  Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). 
The protections of the Fourth Amendment are not diluted when legitimate law enforcement interests justify a warrantless search; the search must still be limited in scope to whatever is justified by the exception to the constitutional requirement of a warrant."[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." (Emphasis added.) Royer, 460 U.S. at 500.
The KSC also held that the circumstances of this case failed to show consent to search without coercion:
Spagnola was standing outside of his car in the presence of more than one police officer, one of whom had arrived as backup support. When Spagnola gave his second permission for the search, he was standing with his back to the officers, with his hands behind his back and his fingers interlaced. This was not a posture or an environment in which it can be said that consent was voluntarily given free from coercion.
As a result, the KSC reversed the conviction and ordered suppression.

Registration exception applies if any manufacture for personal use

Lydia Krebs won in State v. Mishmash, No. 103,158 (Kan. Dec. 7, 2012), vacating the offender registration requirement in this Crawford County manufacture prosecution.  The question in the case was whether Mr. Mishmash had to register as a drug offender.  The statute required persons convicted of manufacture to register unless the district court found that the manufacture was for personal use.  The record showed that Mr. Mishmash manufactured for personal use but also gave some to another person.  The state argued that this distribution showed that Mr. Mishmash had not manufactured solely for personal use.  Mr. Mishmash argued that the word solely isn't in the statute and that the record clearly showed that he did manufacture for personal use.  The KSC agreed that it should not put words in the statute:
Under the State's reading of the phrase "personal use," a business that provides computers to its employees and informs them that they may use the computers for personal use would be denying the employees the opportunity to utilize the computers in a professional capacity. A company that provides a car to a traveling salesperson with the explanation that the car may be put to personal use would deny the salesperson the use of the car for sales purposes. Farmers who have marketing agreements to sell part of their crop and retain part of that crop for personal use would not be permitted to feed their families with the retained portion. These situational absurdities illustrate that the words "solely" or "exclusively" are not implicit in the phrase "personal use."
As a result, the KSC vacated the registration requirement.

And, as Carl has noted, another important part of this decision for upcoming KORA/Ex Post Facto Clause cases is the KSC's own description of the registration requirement:
The district court used this finding to deny him the statutory exemption from offender registration. In doing so, the district court improperly added language to the statute that the legislature elected to omit. We therefore vacate that portion of the sentence requiring Mishmash to register as a drug offender.
If the registration requirement is a portion of the sentence, the state should not be able to impose it in other cases retroactively.

Thursday, December 06, 2012

Cert filing on mandatory minimums

As Carl blogged about (here), the SCOTUS has granted cert in a case this term to consider whether facts that increase a mandatory minimum sentence should be proved to a jury beyond a reasonable doubt.  We have been periodically (and unsuccessfully) filing cert petitions on that very issue almost since Apprendi was decided (as blogged about here and here).  In fact, my very first cert petition was filed seeking review of State v. Conley and seeking application of Apprendi to the Kansas hard-50 sentencing scheme.

Here is a recent cert petition that Joanna Labastida and I filed post-Alleyne grant reiterating the Due Process and Jury Trial Clause argument.  If the SCOTUS decides to reverse or modify its caselaw regarding mandatory minimums it could have an impact on Conley too.  So keep objecting at any hard-50 sentencing!

[Update: the SCOTUS requested that the state filed a response to Mr. Astorga's petition.  It is due on February 8, 2013.]

[Further update: here is the state's response.]

[Further update:  on June 24, 2013, the SCOTUS granted a GVR (certiorari granted, judgment vacated, and case remanded).  Carl blogged about this here.]

Circuits continue to split over applying Apprendi to restitution

Last year, the U.S. Supreme Court held in Southern Union v. U.S. that the rule established in Apprendi v. New Jersey – in which the Court held that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) which increases the maximum punishment authorized for a particular crime be proved to a jury beyond a reasonable doubt – applies to the imposition of criminal fines.  

On the issue of restitution, the Seventh Circuit recently joined the minority view (shared by the Eighth and Tenth Circuits) that restitution is civil in nature, and so a jury finding is not required to determine the amount to be paid.  The opinion in U.S. v. Wolfe, No. 11-3281 (7th Cir. 2012) is available here.  But again, that is the minority view.  And this is an issue that should be litigated in Kansas. 

Southern Union's holding has already been used in Kansas to make other Sixth Amendment arguments.  In State v. Urista, KS Appellate Case No. 09-103089-S, Rachel Pickering (one of the the excellent attorneys over at the ADO) recently argued that the Sixth Amendment right to a jury trial was violated when offender registration was ordered based on the the sentencing judge's factual finding that the defendant had committed a felony with a deadly weapon.  Rachel filed a Rule 6.09 letter stating that Southern Union supported her argument (video of the argument is available here).  A decision in the case could come out at any time.

I will leave for another blog post other uses for the holding in Southern Union.  But one could argue that it could be used to challenge things like BIDS fees - after all, the judge has to make a finding that the defendant has an ability to pay, and the requirement to pay is only triggered with a conviction (making it similar to restitution).  But today, there is an active split on whether the right to a jury trial will apply to restitution amounts, and the split currently favors a finding by a jury.

Friday, November 30, 2012

Short list for COA, part II

Here is a press release announcing that Dennis Depew, a Neodesha attorney; Stephen M. Kerwick, an Eastborough attorney; and Sedgwick County District Judge Anthony J. Powell were nominated by the Supreme Court Nominating Commission for the vacancy created on the COA by the untimely death of Chief Judge Greene.  The Governor has 60 days to appoint one of these persons to the COA.

Here is coverage of the short list in the Topeka Capital-Journal, including some criticism of the process by some of the unsuccessful applicants.

Change of county doesn't reset speedy trial clock

Troy V. Huser won in State v. Quackenbush, No. 107,189 (Kan. App. Nov. 21, 2012)(unpublished), reversing a Pottawatomie County DUI conviction.  Mr. Quackenbush had originally been charged in Riley County after an accident near the Riley County-Pottawatomie County line.  At some point, the state dismissed the Riley County charge and later Mr. Quackenbush was charged in Pottawatomie County.  Mr. Quackenbush argued that the district court violated his statutory speedy trial by failing to aggragate the time of the two prosecutions.  The COA, attempting to determine whether the charges were identical, applied a multiplicty analysis and conclude they were:
the Riley County DUI charge and the Pottawatomie County DUI charge clearly arose from unitary conduct—Quakenbush's alleged drunk driving and motorcycle accident in Tuttle Creek State Park on August 23, 2009. Given the unique procedural posture of this case, it is less clear which test to apply under the second component. Although both the Riley County DUI charge and the Pottawatomie County DUI charge were brought under K.S.A. 2009 Supp. 8-1567(a), the unit of prosecution test appears to be inapplicable because the State never charged Quakenbush with two or more separate violations of the same statute arising out of the same conduct. Thus, it is more logical to apply the same elements test.
The State argues in essence that the Riley County DUI charge and the Pottawatomie County DUI charge did not have the same elements because one required the State to prove that the offense occurred in Riley County and the other required the State to prove that the offense occurred in Pottawatomie County. The State's argument rests on the flawed presumption that jurisdiction is an essential element in every criminal offense. This is not correct. As we have shown in the analysis of Rivera, that while the State is required to prove jurisdiction and venue in every criminal case, jurisdiction and venue are not, strictly speaking, elements of every criminal case.
Under the same elements test, the Riley County DUI charge and the Pottawatomie County DUI charge were brought under the same statute and have the exact same elements. It is irrelevant that the State would have been required to prove a different jurisdiction under each charge because jurisdiction and venue are not elements of a DUI offense. Thus, the two DUI charges were “identical charges” for the purpose of aggregation under the speedy trial statute.
The State did not make a showing of necessity at the time the Riley County DUI charge was dismissed. Further, because the two DUI charges were identical charges, the district court erred in refusing to aggregate the time chargeable to the State for statutory speedy trial purposes. Quakenbush was not brought to trial within the statutorily required 180 days.

Because the speedy trial clock had run, the COA reversed the conviction.

[Update: the state did not file a PR and the mandate issued on December 27, 2012.]

Wednesday, November 28, 2012

December 2012 KSC Docket

Here are the criminal cases on the KSC docket for December 10-14, 2012.  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.

December 10--Monday--a.m.

State v.  Andrew Johnson, No. 100,864 (Sedgwick)
Direct appeal (petition for review); DUI
Carl F. A. Maughan
[Affirmed; Johnson; May 3, 2013]
  1.  Failure to dismiss due to destruction of evidence
  2.  Failure to suppress breath test
  3.  Failure to exclude test results
  4.  Confrontation clause violation (Intoxilyzer certification)
State v. Matthew Hines, No. 102,233 (Sedgwick)
State appeal (petition for review)
Janine Cox
[Rvd/rmd; Rosen; Feb. 15, 2013]
  1. Departure appeal
State v. Patrick Hood, No. 101,953 (Sedgwick)
Direct appeal; Burglary/theft
Lydia Krebs
[Affd/Rvd; Johnson; May 17, 2013]
  1. Multiplicity
State v. Jeffery Swindler, No. 104,580 (Sedgwick)
Direct appeal; Rape
Lydia Krebs
[Rvd/rmd; Beier; Feb. 15, 2013]
  1. Alternative means
  2. Denial of motion to suppress statements

December 11--Tuesday--a.m.

State v. Ronald Graham, No. 101,717 (Geary)
Sentencing appeal/Cross-appeal K.S.A. 60-1507 appeal
Sam S. Kepfield, David P. Troup
[Affd/Moot; per curiam; Jan. 18, 2013]
  1. Failure to convert indeterminate sentence (appeal)
  2. Jurisdiction to grant discharge under K.S.A. 60-1507 (cross appeal)
State v. Bruno Edgar, No. 103,028 (Cowley)
Direct appeal (petition for review); DUI
Joanna Labastida
[Rev/Rmd; Biles; Feb. 1, 2013]
  1. Denial of motion to suppress (improper extension of stop)
  2. Denial of motion to suppress (invalid consent)
State v. Randy Herbel, No. 103,558 (Marion)
Direct appeal; Rape
Meryl Carver-Allmond
[Affirmed; Nuss; April 5, 2013]
  1. Improper allowing jury to watch video without defendant or attorney present
  2. Improperly allowing witness to testify with mother next to her

December 11--Tuesday--a.m.

State v. Robert Peterson, No. 102,198 (Douglas)
Sentencing appeal (petition for review)
Christina M. Kerls
[Rvd/Vac/Rmd; Beier; Feb. 8, 2013]
  1. Violation of plea agreement
  2. Lifetime postrelease Cruel and Unusual Punishment
State v. Donnell Dobbs, No. 103,820 (Wyandotte)
Direct appeal; First-degree murder
Matthew J. Edge
[Affirmed; Moritz; September 20, 2013]
  1. Improper grant of continuance to state
  2. Incorrect eyewitness ID instruction
State v. Kameron King, No. 99,479 (Wyandotte)
Direct appeal (petition for review); Arson
Matthew J. Edge (argue); Carl Folsom, III (brief)
[Aff'd/Rev'd; Luckert; Aug. 9, 2013]
  1. Failure to grant mistrial after bad acts evidence
  2. Denial of right to be present by answering jury question in writing
  3. Improper response to jury question
  4. Multiplicity
  5. Lack of unanimity
  6. Improper Allen instruction

Monday, November 26, 2012

Proof of counsel in misdemeanors

Michael P. Whalen and Krystle M.S. Dalke won in State v. David Jones, No., 107,020 (Kan. App. Nov. 16, 2012)(unpublished) obtaining remand for evidentiary hearing in a motion to correct illegal sentence in a Sedgwick County rape prosecution.  The issue revolved around whether some misdemeanor convictions used as priors were obtained in violation of the right to counsel.  The COA held that Mr. Jones had presented a sufficient record that the district court should have held an evidentiary hearing:
the documents that Jones attached to his motion to correct an illegal sentence are consistent with Jones' allegations that he was without counsel at his plea and sentencing hearings. For example, the disposition sheet for 92 CM 2202 indicates on a preprinted space for “Defense Att'y” that “C. O'Hara” entered an appearance on March 11, 1992. But there is no way to conclusively tell from the disposition sheet whether Mr. O'Hara was present for Jones' plea hearing on October 7, 1992, or at Jones' sentencing hearing, which the record indicates did not take place until almost 5 years later. Moreover, the Wichita Municipal Court “Records Check” also attached to Jones' motion lists an “N”—presumably meaning “No”—under the column titled “Attorney.” This offers additional support for Jones' allegations that Mr. O'Hara was not present at the plea or sentencing hearing dates that are handwritten on that form.
The only potentially distinguishing fact found in this case is that unlike Neal, Jones did not swear to the allegations in his motion—a fact frequently referred to by our Supreme Court in Neal.  But Jones did not simply rely on a silent record, he did specifically state in his motion that he was, in fact, not represented at the hearings and, although not sworn, his signature was notarized. In addition, Jones attached evidentiary support for his allegations to his motion: the records check and the municipal court disposition sheet. The State did not dispute the accuracy or validity of these documents. Thus, this case is more like Neal than the cases cited in Neal that found the defendants had not met their burden of proof to require an evidentiary hearing because those defendants had offered no evidentiary support for their conclusory allegations in their motions to correct illegal sentences.
My experience leads me to believe this is a frequently overlooked issue.  Practitioners (both at trial and on appeal) should be sure to review the PSI and if there are misdemeanors that effect a client's criminal history (especially municipal convictions), further investigation is required.  The KSC has made it clear that the burden is on the state to prove counsel or a valid waiver (blogged about here) and a lot of municipal court documentation is not going to meet that burden.

[Update: the state did not file a PR and the mandate issued on December 20, 2012.]

Kansas' insanity law lives on

The U.S. Supreme Court denied certiorari this morning in Delling v. Idaho, a case that questioned whether it was constitutional under the Eighth and Fourteen Amendments for a state to not have an insanity defense.  The cert petition pointed out that only five states do not have an insanity defense - Kansas is one of those states.

It should be noted that Justice Breyer, Justice Ginsburg, and Justice Sotomayor all dissented from denial of certiorari.  One more vote, and the issue would have been before the Court.

This is an issue that arises often in Kansas.  Defendants often cannot appreciate the wrongfulness of their conduct (making them legally insane under the M’Naghten test).  But they are still prosecuted and convicted in Kansas because they were able to form the intent to commit a crime (e.g. - if they hallucinate a situation that requires self-defense - they could not appreciate the wrongfulness of their conduct, but they could still form the intent to kill or batter).  See State v. Bethel, 66 P.3d 840 (Kan. 2003), cert. denied, 540 U.S. 1006 (2003).  Thus, this is an issue that is ripe for litigation.

If you can show that a defendant is not sane under the M’Naghten test, but who still was able to form the applicable mens rea, make your record.  File a motion to dismiss arguing that that Kansas' failure to use the M’Naghten test violates the Eighth and Fourteen Amendments.  The legal argument is included right there in Delling's cert petition, and it is just as applicable to Kansas defendants as it was to Idaho defendants.  It may be your case that gets that fourth vote.

Wednesday, November 21, 2012

Lack of prosecutorial candor warrants new trial

Rick Kittel and KU Defender Project intern Alyssa Boone won in State v. Ames, No. 106,254 (Kan. App. Nov. 16, 2012)(unpublished), reversing one conviction for DUI, fourth or subsequent, and two convictions for aggravated child endangerment in a Seward County case.  The decision highlighted the process for a district court to handle a request for a mistrial when the opposing attorney has not complied with their duty of candor to the court.

State v. Ames involved a traffic stop that led to a DUI investigation.  The defendant's daughter Amanda Ames and her two minor children were in the car at the time.  The COA recited the procedural facts as follows:
At the trial, the prosecutor questioned Deputy Taylor on direct examination regarding the traffic stop and about a conversation he had with Amanda Ames. The court admitted testimony by Deputy Taylor regarding statements made to him by Amanda Ames about the names and ages of her children, who were in the back seat of Mr. Ames' vehicle. The children were the victims in the counts charging Mr. Ames with aggravated endangering a child. This testimony was admitted despite a hearsay objection by defense counsel. The prosecutor assured the court that the declarant, Amanda Ames, was available for cross-examination. 

* * * 

Deputy Taylor was allowed to testify over defense counsel's objection as to what Amanda Ames had told him at the scene regarding her children. After Deputy Taylor left the witness stand, the State called Amanda Ames as its next witness. The prosecutor asked only a few questions of Amanda Ames, eliciting answers regarding the ages of her children. Mr. Tahirkheli [the defense attorney] then began cross-examination. [Almost immediately, the prosecutor asked the court if the attorneys could approach.]
* * *

When the matter went back on the record, the jury was asked to leave the courtroom and then the prosecutor explained for the first time that Amanda Ames was also facing charges for aggravated endangering a child arising out of these facts.  Additionally, the prosecutor preemptively objected to Mr. Tahirkheli's entire line of questioning as outside the scope of direct and the court limited Mr. Tahirkheli's permissible cross-examination to the ages and names of the children. At that time, Mr. Tahirkheli moved for a mistrial because the State charged Amanda Ames with a crime, brought her to the stand, and only after obtaining direct examination testimony from her, revealed that she was facing charges that triggered her right against self-incrimination, limiting the defense counsel's availability to cross-examine her. The district court denied the mistrial, acknowledging the error, but stating that it did not prejudice the defendant.
The COA held that the district court should have granted the mistrial:
The prosecutor was allowed to obtain hearsay evidence from Deputy Taylor having a direct bearing on the elements of the crimes with which Mr. Ames was charged, based upon the prosecutor's assurances that Amanda Ames was available for cross-examination. The prosecutor then obtained direct examination testimony bearing on these same elements from Amanda Ames before the prosecutor advised the trial judge that Amanda Ames was also facing charges.
The defendant was denied the right to confront the key witness against him. The prosecutor clearly owed a duty of candor to the trial court to disclose that Amanda Ames was facing child endangerment charges arising out of the same set of facts before the court was led to believe she was available as a witness. The prosecutor violated her duty of candor to the court, and the prejudice flowing to the defendant, Gary Ames, was so substantial that a mistrial was the only appropriate remedy. See Kansas Rule of Professional Conduct 3.3 (2011 Kan. Ct. R. Annot. 559).
The COA explained that the district court made the appropriate finding for denying the mistrial (that there was no "fundamental failure of the proceeding"), "but the judge did not make a record of how he arrived at this conclusion."  The court noted that Mr. Ames' right to confront witnesses was violated and noted that, "there is no record of whether the trial court considered the prosecutor's lack of candor as a 'fundamental failure of the proceeding.'"  Thus, the State could not prove that the error was harmless beyond a reasonable doubt.  The court remanded the case for retrial on all issues. 

[Update: The State did not file a PR, and the case became final on December 20, 2012.]

Thursday, November 15, 2012

Now blogging from Muskogee

Almost three years ago, Randall announced on this blog that I had left the ADO to "hang my shingle" in Lawrence.  I have now taken down that shingle... or whatever is the appropriate metaphor.  I recently accepted a position as the Research and Writing Specialist for the Federal Public Defender in Muskogee, Oklahoma.  I will handle most of the appeals out of the Eastern District of Oklahoma and do some work for the Northern District as well.  Hopefully, this means that I will have a little more insight on federal issues that affect Kansas defenders, even if I myself am no longer defending from inside the state of Kansas.

Although I haven't been very active blogging recently, I hope to change that with the new position.  I now do not have to worry about billable hours, marketing, vouchers, or fighting with BIDS over experts.  I get to focus on the law.  And I hope that translates into more blogging about interesting legal issues and new cases that affect Kansas defenders.  

Short list for COA

Here is a press release announcing that Steven J. Obermeier, Senior Deputy District Attorney in Johnson County; Judge Kim R. Schroeder, a Hugoton district court judge; and Teresa L. Watson, a Topeka attorney in private practice were nominated by the Supreme Court Nominating Commission for the vacancy on the COA to be created by the retirement of Judge Marquardt.  The Governor has 60 days to appoint one of these three to the COA.

Sunday, November 11, 2012

Violation of wiretap law requires suppression

Jeb C. Griebat and Carl Folsom, III won in State v. Bruce, No. 105,884 (Kan. Nov. 2, 2012), affirming Judge Brazil's suppression order.  The district court had suppressed evidence obtained as a result of a violation of the federal wiretap law due to improper delegation of authority from the Attorney General.  The state conceded that the violation of the wiretap law and that the violation was of a central provision of the statutory provision.  But the state argued that suppression was not an appropriate remedy for the violation.  The KSC reviewed wiretap law, including its explicit suppression remedy, and disagreed:
Our usual practice is to apply the letter of clear statutes without grafting new, court-created rules onto them to rescue violators. "'A statute should not be read to add something that is not found in the plain words used by the legislature . . . .'" "'When a statute is plain and unambiguous, we must give effect to the legislature's intention as expressed, rather than determine what the law should or should not be.'" We acknowledge that other courts have not shared our reticence about legislating. But the sensitive area of wiretaps seems an especially poor environment for judicial policy making. We thus maintain the position of our earlier cases: When there is a violation of a central provision of the wiretap statutes, exclusion is required by both the federal and state statutes. 18 U.S.C. § 2518(10)(a)(i); K.S.A. 2011 Supp. 22-2516(9)(a).
This ultimate holding eschewing harmlessness analysis implicitly rejects the State's subsidiary argument that the specific procedures and delegation document used here would have met the standard for application of a court-created exception to suppression.
[Update: the state moved to stay the mandate on November 14, 2012.]

[Further update: the state moved for rehearing on November 26, 2012.]

[Further update: the KSC denied the state's motion for rehearing on December 11, 2012 and the mandate issued on December 11, 2012.]


Sunday, November 04, 2012

Cumulative error requires new trial

Korey A. Kaul won in State v. Burns, No. 103,088 (Kan. Oct. 26, 2012), obtaining a new trial in a Wyandotte County aggravated criminal sodomy prosecution.  The KSC found several errors, none of which by themselves required reversal. 

First, during deliberations, the jury asked a question.  This is the district court's description and response:
We are in receipt of another question from the jury. And I will quote this into the record: Can we get clarification from Judge on Count 2 and Count 6? 

When I received that, I sent this message back with the bailiff: Can you be more specific on what you want? They came back then with this question: In comparison to Count 1, is Count 2 meaning the crime happened multiple times? In comparison to Count 5, is Count—they crossed it out, but I think they mean Count 6—meaning the crime happened multiple times?

The accurate answer to their question is, I believe: Yes, comma, it happened more than once, period. That's how I propose to answer both questions.
The KSC held that this response was error:
The more compelling argument is whether the judge improperly answered the jury question and as a result improperly injected himself into the jury deliberations. This question is reviewed under the more lenient abuse of discretion standard. But even under that standard, a judge should not answer a jury question by concluding that the crime happened on more than one occasion, especially when the defendant is charged with multiple counts of the crimes.
The state conceded and the KSC also held that the prosecutor improperly argued suggesting that the jury tell the complaining witnesses that "they did the right thing."

Finally, the KSC reiterated its prior case law holding that a jury instruction indicating that a hung jury would be a burden on both sides was not a correct statement of law.

Although none of these errors separately required reversal, the KSC held that the cumulative effect of the errors did:
These errors occurred in close temporal proximity, playing off one another to deny Burns his right to a fair trial. The jury was first improperly instructed with the inaccurate and misleading language used in the Allen-type instruction. Immediately thereafter, the prosecutor improperly appealed to the emotions of the jurors, asking them to protect the child victims by supporting their version of the events. Finally, the judge compounded these errors by responding to a jury question by informing the jury that the abuse had happened more than once. The interrelationship of these errors significantly increases their effect. We conclude that there is a reasonable probability that the cumulative errors affected the verdict.
As a result, Mr. Burns received a new trial.

Friday, November 02, 2012

Park bench is not a new residence

Meryl Carver-Allmond won in State v. LeClair, No. 101,201 (Oct. 26, 2012), reversing a Saline County failure to register conviction.  Mr. LeClair, who was required to register within 10 days of changing his residence, "left his Salina residence on June 1, 2007. He then traveled the southwest United States for approximately 3 weeks before settling in Las Vegas, Nevada, and registering as an offender on July 9." Mr. LeClair argued that he had not established a new residence during that period and, therefore, was not required to notify the sheriff.  The KSC agreed:
There is no inconsistency or repugnancy because the statute distinctly requires that once the offender "changes the address of the person's residence," the offender must register within 10 days of obtaining "the new address" of residence. (Emphasis added.) K.S.A. 22-2904(b). So we must reject the State's contention at oral argument that LeClair's "address of residence" could be a one-night stay on a park bench. Among other things, it is difficult to imagine how under 22-4904(b) an offender should inform law enforcement of his "new [residential] address" as a "park bench in Albuquerque." And it is equally difficult to imagine how that park bench for one night establishes a "change [in] the address of the person's residence." Consequently, we conclude that under K.S.A. 22-4904(b), an offender does not change the address of residence until obtaining a new place of habitation where the person intends to remain. This conclusion necessarily rejects the panel's holding that under this statute an address of residence simply means one's bodily presence at a location.

Given this construction of the statute, and given the unrefuted evidence that Mr. LeClair had not established a new residence, the KSC reversed the conviction due to insufficient evidence.

Friday, October 26, 2012

Probation revocation may or may not be moot after sentence completion

Matthew J. Edge won in State v. Hilton, No. 102,256 (Oct. 19, 2012), reversing the COA's dismissal of her probation revocation appeal.  Before her appeal was heard on the merits, she completed her sentence, and the COA dismissed the appeal as moot.  This is a question that comes up in different contexts--whether a sentencing or probation violation appeal is moot after completion of the sentence.  The KSC noted another case decided the same day, where it held that, if a client has stipulated to the violation and the prison sentence is expired, the appeal is moot:
Regardless of whether Hilton's inability to follow the rules and perform on probation resulted in the immediate revocation of one probation or two, her conduct while on probation will be what is germane to any future assessment of her amenability to probation. In other words, it is not the sanction for violating probation that makes a person nonamenable to probation, it is the violation itself. Accordingly, as in Montgomery, this appeal presents a moot issue.
This leaves open the possibility (or even likelihood), though, that if the probation violation had been contested, the appeal would not be moot.   If "the violation itself" is contested, the resulting potential finding of nonamenability to probation in a future case would still be a direct consequence that would support an appellate determination, even after completion of the sentence.

In any case, the KSC, held that Ms. Hilton's appeal was moot, but ultimately held that the case should be heard on appeal because the issue presented is likely of repetition yet evading review.  The KSC acknowledged that, given the fact that most probation violation appeals involve short sentences, it is quite unlikely that most can get effective appellate review before expiration of the sentence.  So if there is an important legal issue presented by the case, this doctrine is likely to apply and did apply in this case.

Tuesday, October 23, 2012

Chief Judge Malone

Here is a press release announcing that the Kansas Supreme Court has appointed COA Judge Tom Malone as Chief Judge, filling the vacancy created by Chief Judge Greene's passing.  I expect it will be a challenging time to lead the court (fiscal challenges, turnover on the court, technology changes in the courthouse, etc.).  Good luck Chief Judge Malone!

Tuesday, October 09, 2012

Judge Greene

Here is the press release announcing the sad news that Chief Judge Richard Greene died this weekend from complications arising from heart complications.  It's no great secret that Chief Judge Greene was extremely intellectually interested in the Fourth Amendment (even though he came from a mostly civil-law practice background) and therefore we frequently had very scholarly in-court discussions with him and decisions from him.  Moreover, he had a great temprement as a jurist in general and was just starting to hit his stride as leader of the COA.  A sad day for the Kansas Judiciary.

Friday, October 05, 2012

SCOTUS to decide if judicial factual-finding to increase mandatory minimum violates right to jury trial

The U.S. Supreme Court granted certiorari today in Alleyne v. United States, No. 11-9335, to answer the question whether under the Sixth Amendment, a jury, not a judge, must find that the defendant
brandished a firearm in order to trigger the 7-year mandatory minimum under 18 USC 924(c).  In other words, the Court is taking up the question whether Harris v. United States, 536 U.S. 545 (2002), should be overruled.

This case will be important to Kansas state-level practitioners because it will likely determine the constitutionality of the procedure Kansas uses to impose the Hard-50 life sentence.  Under K.S.A. 21-6620, the court makes the determination of whether aggravating factors exist to increase a Hard-25 life sentence to a Hard-50 life sentence (for persons convicted of first-degree murder).  Essentially, the court is making a factual finding that increases the mandatory minimum.  This is the issue that will be addressed in Alleyne, so it will definitely be worth watching.

Due Process, even in prison

Louis Brouillard, pro se, won in Broulliard v. Warden, No. 106,965 (Kan. App. Sept. 28, 2012)(unpublished), obtaining habeas relief in a prison disciplinary case.  Mr. Brouillard had been disciplined for possession of some betting slips and pornography found on a computer to which he had access at an inmate work area.  After contesting the discipline and seeking habeas relief pursuant to K.S.A. 60-1501, Mr. Brouillard presented his Due Process claim to the COA.  Acknowledging a relaxed standard for review of institutional discipline, the COA majority held the prison had failed to meet even minimum standards:
Here, corrections officers found contraband in a work area common to Brouillard and a number of other inmates. The record is unclear as to exactly how many other inmates worked in or had access to that area. But more than a few apparently did. The evidence also showed that other inmates used the same computer as Brouillard on a daily basis. There is no evidence Brouillard somehow acted in concert with any of the other inmates with respect to the contraband. From that evidence alone, the pornography and the betting slips could not be attributed to Brouillard any more than to one or more of the other inmates using the computer or having access to that work area. The testimony that Brouillard had a password to the computer really doesn't advance the prison's position. The fact is presented in just that sort of disconnected, abstract way. There was no evidence that the other inmates lacked passwords or that only Brouillard (or someone with this password) could have created the betting slips or accessed and copied the pornography. In that way, the password is comparable to the informant in Broussard—the evidence lacks sufficient foundation to implicate the inmate in the charged violation. In short, the evidence against Brouillard fails to display adequate clarity and specificity to support the violations, even under the some-evidence standard. The evidence placed Brouillard and a number of other inmates in proximity to the contraband. But imposing liability on Brouillard based on that sort of shared proximity reflects arbitrary decisionmaking that cannot be squared with the constitutional process due inmates as outlined in Hill.
The constitutional defect may be illustrated through a rhetorical foil counsel for the prison presented on appeal: “If Brouillard's arguments are accepted, any contraband found in a prison dormitory setting or work area would be insufficient to support the imposition of discipline in a prison setting.” Prison officials, then, seem to believe that if they find contraband in the common area of a dormitory, they can then select one inmate among the residents housed there and prove a disciplinary violation against him or her based on nothing more. Select how? Maybe by lot or birthday nearest the date of the offense or general incorrigibility. It could be the prison officials believe they can charge all of the residents with possession of the contraband. Either way, that sounds arbitrary, perhaps more strikingly so than the disciplinary action taken against Brouillard. But neither comports with due process.
[Update: the prison did not file a PR and the mandate issued on Nov. 1, 2012.]

Insufficient evidence of lewd fondling or touching

Christina Kerls won in State v. Warren, No. 104,662 (Kan. Sept. 28, 2012), obtaining reversal of a Seward County aggravated indecent liberties conviction.  The KSC acknowledged that there may have been evidence of a crime presented, but not evidence of the crime charged:
Here, the State presented no evidence that Warren touched his penis in order to arouse or satisfy his or E.W.'s sexual desires. Rather, if anything, the evidence showed that Warren exposed his penis to arouse or satisfy the sexual desires of E.W. or himself, or both. As Warren points out, while touching his penis in order to expose it may have met the definition of lewd and lascivious behavior, it clearly was not sufficient to establish the charge of aggravated indecent liberties with a child.
Furthermore, the KSC addtionally held that not only was the evidence insufficient in relation to the charge, it was insufficient in relation to the offense as the jury was instructed:
Further, even if the State had proved an intentional touching under the aggravated indecent liberties statute, that evidence would nevertheless have been insufficient to prove that charge for a third reason—i.e., the evidence did not support the elements of the charge as outlined in the jury instruction. 
The trial court instructed the jury on aggravated indecent liberties as follows: 
"To establish this charge [of aggravated indecent liberties with a child], the following claims must be proved:  
1. That the defendant submitted to lewd fondling or touching of his person by removing his penis from his pajama, with intent to arouse or satisfy the sexual desires of either E.W. or the defendant, or both."
The State presented no evidence that Warren "submitted to" any lewd fondling or touching, and it seems elementary that one cannot "submit to" one's own actions. Merriam-Webster defines "submit" as "1(a): to bow to the will or authority of another: . . . (b) to allow oneself to become subjected." Webster's Third New International Dictionary 2277 (1993).
Some people might think this is a "technicality."  But I don't think Due Process is a technicality.  Its foundational.

Objection before trial on stipulated facts sufficient

Rick Kittel won in State v. Kelly, No. 102,210 (Kan. Sept. 28, 2012), obtaining a remand to the COA, which had held that a suppression issue was procedurally defaulted because defense counsel did not renew a pre-trial objection during the trial on stipulated facts (a procedure used to preserve issues for appeal when the facts are not really contested).  The KSC acknowledged that it had recently held that a pretrial objection followed by a contested bench trial to the same judge did not require an additional objection to preserve the issue for appeal.  In this case, the KSC extended that reasoning to a bench trial on stipulated facts, even if it involves a different judge:
We conclude that having more than one judge involved in the proceedings does not alter the two-fold rationale of the decision in Bogguess. First, a defendant's stipulation to facts for the purpose of a bench trial precludes a defendant from asking the trial judge to ignore—in other words, suppress—evidence that a defendant has agreed can be admitted and considered. Second, because the case is tried solely on stipulated facts there will be no new evidence or arguments submitted that might change the ruling on the motion to suppress. Consequently, there is no legal or factual basis to revisit the suppression issue.
So, the case heads back to the COA for a decision on the merits.

Sunday, September 30, 2012

Improper evidence putting puzzle pieces together not harmless

Michelle Davis won in State v. Belone, No. 99,176 (Kan. Sept. 21, 2012), obtaining a new trial in a Douglas County second-degree murder prosecution.  The COA had already held that the district court violated the Confrontation Clause by admission of out-of-court testimonial statements, but it also held that the error was harmless.

The KSC applied its recent clarifying decisions regarding harmless error and reversed:
The Court of Appeals was influenced by "the sheer volume of witnesses testifying about the attack and kidnapping." But none of the witnesses, other than Belone and Begay, had first-hand knowledge of the entire incident. Playing an audio recording of Begay relating her version of the entire event is certainly more compelling evidence than presenting pieces of the puzzle from a number of different witnesses. 
Here, the State has simply failed to carry its burden of showing that there is no reasonable possibility that the violation of Belone's confrontation rights contributed to the verdict. Without that degree of certainty, we cannot declare the error to be harmless. We must reverse and remand for a new trial.

This is a nice example of the importance of harmless error analysis.

Here is coverage of the case in the Lawrence Journal-World.

Friday, September 28, 2012

Cumulative error requires new trial

Washburn student intern Jessica L. Dotter and I won in State v. Derringer, No. 106,119 (Kan. App. Sept. 21, 2012)(unpublished), obtaining a new trial in a Graham County aggravated assualt prosecution.  The COA held that, despite the complaining witnesses' trial testimony that they were not in apprehension of harm, the circumstances were sufficient for such a finding, and therefore rejected Mr. Derringer's sufficiency claim.  But the COA went on to find that several trial errors, including a verdict form that required acquittal of a greater before consideration of a lesser, the prosecutor improperly stating the law, and an improper reasonable doubt instruction, required a new trial:
Here, our confidence in the jury's verdict has been undermined by the totality of the circumstances. First, we must recognize at the outset that the State has escaped the sufficiency challenge by our rather narrow and technical reliance on the officer's testimony despite clear and unequivocal denials of apprehension by both victims at trial. This dearth of evidence, coupled with errors in the instructions, verdict forms, and a serious misstatement of the law by the prosecutor causes us to conclude that Derringer was substantially prejudiced and denied a fair trial. For these reasons, we must reverse his convictions and remand for a new trial.
[Update: the state filed a PR on October 18, 2012.  Mr. Derringer filed a cross-PR on October 31, 2012.]

[Further update: the KSC denied both the PR and cross-PR on August 29, 2013 and the mandate issued shortly thereafter.]

Friday, September 14, 2012

Mistatement of law means new trial

Rachel L. Pickering won in State v. Redeker, No. 106,250 (Kan. App. Sept. 7, 2012)(unpublished), obtaining a new trial in a Lyon County possession with intent prosecution.  The COA rejected a sufficiency claim regarding the aggravated possession conviction, but went on to hold that improper prosectuorial argument required a new trial:
In rebuttal, the prosecutor guided the jurors through each of the definitions of “distribute” found in the jury instruction. The prosecutor then isolated that portion of the instruction that defined “distribute” to include “any act that causes some item to be transferred from one person to another.” Noting that this definition did not state “to the next person,” the prosecutor argued:
“So, even if you don't believe the story that he told the officers that [he] intended to take it to somebody else in Council Grove, do we still have distribute? Well, by the defendant's own testimony, he purchased methamphetamine from this guy he knows as Mike from Wichita. When he purchases methamphetamine, what happens? He's involved in an act that transfers that methamphetamine from one person to another.”
The COA agreed that this was a mistatement of law--distribution requires transfer from the suspect to another person, not transfer from a distributor to the suspect.  Otherwise, there would be no person guilty of simple possession (because it's always tranferred from someone else).

The COA went on to consider whether to reverse.  Even though the COA held that the improper remark was not gross and flagrant and did not evince ill will, it's effect was such that a new trial was required:
The sole contested factual issue in this case was whether Redeker possessed methamphetamine with the intent to distribute it. Redeker admitted that he possessed methamphetamine and agreed that he should be convicted of its possession. The prosecutor told the jury that even if it believed the defendant—that the drugs were for his own personal use and that he lied about his intention to distribute them to someone else—distribution as defined in the instruction was complete when Redeker received the drugs from Mike. When defense counsel objected to the prosecutor's comments as a misstatement of the law, the court overruled the objection, thus bolstering this misstatement. The prosecutor again emphasized his belief that this interpretation was supported by the instruction. Granted, the trial court instructed the jury that none of the court's rulings were intended to indicate to the jury what its verdict should be, but overruling that objection would certainly tend to suggest to the jury that it could rightfully consider the prosecutor's argument that misstated the law.
We agree with Redeker that this misstatement of the law by the prosecutor in his closing argument may have been the small degree of influence necessary to affect the verdict. Given that the jury was repeatedly told that its primary task was to determine Redeker's intent in light of his admitted possession of the methamphetamine, we cannot conclude beyond a reasonable doubt that the jury would have disregarded the prosecutor's argument on what acts it could consider constituting an act to distribute the methamphetamine.
[Update: the state did not file a PR and the mandate issued on October 11, 2012.]

Friday, August 31, 2012

Couple of reversals for failure to give lesser

Michelle Davis won in State v. Plummer, No. 101,684 (Kan. Aug. 24, 2012), obtaining a new trial in a Reno County aggravated robbery prosecution.  And Shawn Minihan won in State v. Simmons, No. 102,715 (Kan. Aug. 24, 2012), obtaining a new trial in a Sedgwick County aggravated battery prosecution.  Both cases involved district court denial of requested lesser-included offense instructions.  The KSC reviewed its analytical framework for consideration of instructional issues, summarizing it as follows:
In summary, for instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in Ward.
Applying this framework, the KSC held in each case that the district court erred by refusing the requested lessers (theft as a lesser of aggravated robbery and simple battery as a lesser of aggravated battery).  The KSC went on to hold that the error required reversal.

There are several good points in these cases, but one in particular worth noting is found in Simmons:
Accordingly, we disagree with the State's premise that a theory of defense can negate the trial court's obligation to instruct on a lesser included offense, where the evidence was sufficient to require such an instruction under K.S.A. 22-3414(3). That is not to say that the defense theory has no bearing on instructions. One might well envision a circumstance in which the defendant's theory of defense could have a bearing upon whether an instructional error was harmless. But the defendant's theory of defense does not trump the requirements of K.S.A. 22-3414(3).
The scenario this addresses is where a client's theory of defense is "I didn't do it."  Like misidentification or something like that.  The question would be, could that client be entitled to a lesser.  We have had several decisions that have implied (or expressed) that if you said you weren't there, you couldn't argue for a lesser.  But that idea is pretty illogical.  In any case where there is some gradiation of severity (like theft or battery), once a jury finds that your client did do it, there still can be significant questions of how sever.  This quote makes it pretty clear that we will still allow the jury to make that determination, even if the theory of defense is "I didn't do it."