Friday, March 23, 2012

District court improperly prohibited theory of defense

Matthew J. Edge won in State v. King, No. 99,478 (Kan. March 9, 2012), obtaining a new trial in a Wyandotte County drug prosecution. The defense proffered evidence from three witnesses that would have revealed prior police harassment. The KSC held that the evidence was relevant and noncumulative and therefore should have been admitted. Further it held that improper exclusion was not harmless beyond a reasonable doubt:
The evidence in this case comes purely from witness testimony. Stanturf and another officer testified that the cocaine came from King's pants pocket. King and Hudnall testified that Stanturf planted the cocaine found in this case. No physical evidence linked the bag of cocaine to King and there was no video of the arrest or subsequent search. Stanturf testified that he had no strong personal feelings against King, other than some frustration from the incident on June 2, 2005, when King fled the scene. King testified that Stanturf harassed him, pulled him over frequently, and had told King of his personal dislike of King. Stanturf testified that he knew of no ongoing vendetta between King and the officers of the south patrol division. But King was not allowed to present evidence of the south patrol division's alleged hostile attitude toward him.

. . . .

The prosecutor's closing argument highlights the fact that King was allowed to present the "what" of his defense―i.e., the drugs had been planted, but he was not allowed to present the "why" of his defense―i.e., the bias of Officer Stanturf and the south patrol division. Although King was allowed to present his defense that the drugs were planted through his own testimony and that of one other witness, the trial court denied King the opportunity to present relevant, admissible, and noncumulative evidence that was integral to his defense. Evidence that Stanturf continued to harass King after the arrest supports King's theory that Stanturf had a grudge against him that caused the officer to plant drugs to frame him for this crime. Evidence that officers in the south patrol division made disparaging comments about King to his family and perjured themselves to obtain a conviction further supports King's theory of defense.

As Judge Leben pointed out in his dissent, it may well be that a jury would give little weight to the proffered testimony, but it is not our job on appeal to determine its believability. The evidence offered was relevant, material, and not subject to any sustainable hearsay objections. . . . The exclusion of this evidence prevented King from presenting a complete defense. There is a reasonable possibility that the exclusion of this evidence contributed to the verdict. Because this evidence was integral to King's defense theory, we are not persuaded beyond a reasonable doubt that the error did not impact the outcome of the trial, so we must reverse his convictions and remand for a new trial.
There is some good language in this case teaching that just because some evidence may open the door to other damaging evidence, it does not make improper exclusion harmless. It is for the defendant and his or her counsel to decide those risks, not an appellate court.

Friday, March 16, 2012

Kastigar suppression affirmed

Julia S. Spainhour and Stephen J. Atherton won in State v. Carapezza and Hughes, No. 101,958/101,959 (Kan. March 9, 2012), affirming Judge Wheeler's suppression order under Kastigar in a Lyon County felony murder prosecution. Carapezza and Hughes had been convicted of felony murder, but those convictions were reversed in 2008 (blogged about here) based on some improper evidence. At the same time, the KSC noted that the district court should conduct a hearing regarding the possible derivative use of some immunized testimony obtained during a state inquisition proceeding.

On remand, Judge Wheeler held the hearing resulting in a detailed order suppressing a substantial part of the state's case (blogged about here). The state appealed that suppression order. The KSC affirmed the district judge's findings:
With respect to the excluded lay witnesses, the district court carefully explained why the State had failed to meet its Kastigar burden for each. On appeal, the State places a favorable spin on the facts to urge us to find that it did not make a derivative use of the immunized statements with respect to those lay witnesses. We must decline the invitation to function as a factfinder. The district court's negative finding that the State failed to carry its burden of proof is entitled to the full measure of the deferential review standard applicable to that question. Moreover, at the Kastigar hearing, the district court made the following finding:

"It is very painfully apparent when you review the evidence in these two cases that there literally was no case available against these two defendants until such time as Ms. Paico signed and provided information following the reaching of her cooperation agreement with the State of Kansas. Reaching this agreement by Ms. Paico was also, obviously, motivated in part by the knowledge that was communicated by Mr. Goodman to her that the defendant Carapezza had implicated Ms. Paico. Ms. Paico's agreement was undoubtedly a result of knowledge of that implication."

That characterization is supported by substantial competent evidence in the record. The investigation can be visualized as an upside-down pyramid, resting on the initial questionable statements of Paico. On top of that was layered the inquisition testimony of Carapezza and Hughes. Those statements led to numerous interviews with other witnesses and the development of other leads. Capping the pyramid is Paico's changed, plea-bargained story and the jailhouse witnesses. The State demonstrated no effort to support the pyramid with any independent foundation that did not rest squarely upon the defendants' immunized statements. To the contrary, the evidence adduced at the Kastigar hearing demonstrates that the State used the immunized testimony from the inquisitions as the launching pad for its case against Carapezza and Hughes.

At first blush, one might view the heavy burden placed on the State at a Kastigar hearing to be an onerous obstacle to prosecuting alleged murderers. But, as the district court pointed out, the prosecutor possesses the sole discretion and authority to choose who to immunize, who to let plea-bargain, and who to prosecute to the fullest. Here, the State used Carapezza and Hughes to gather evidence against Paico and then used Paico to implicate Carapezza and Hughes. Ironically, the State maneuvered itself into a position of agreeing not to pursue a murder prosecution against Paico, who was the only person against whom it had physical evidence, while pursuing a murder prosecution against the first persons to whom it had granted immunity. Having made the decision to grant immunity to Carapezza and Hughes, the State is constitutionally and statutorily required to honor that commitment.

In Carapezza I and Hughes I, this court charged the district court with the daunting task of conducting a Kastigar hearing to assess which, if any, evidence the State could prove was not derived from the defendants' immunized testimony. The court's Herculean effort resulted in a well-reasoned opinion that correctly assessed the evidence in accord with the principles we set forth in our remand opinions. In short, the district court should be affirmed.
This case sort of presents a class on how not to utilize inquisition proceedings. So the case is remanded three and a half years after the original convictions were reversed. Three and a half years is a long time to be sitting in jail without a conviction. Updates when available.

Here is an Emporia Gazette article reporting that the charges against Mr. Hughes and Ms. Carapezza were dismissed without prejudice on May 3, 2012 and they were finally released (after spending nearly seven years in custody after the initial conviction).

No cause to look in cigarette package

Washburn student intern Sean G. Whittmore and I won in State v. Johnson, No. 100,728 (Kan. March 2, 2012), obtaining reversal of a Sedgwick County drug conviction. The main issue was whether officers had a basis for looking in a cigarette package taken out of Ms. Johnson's purse during an investigatory detention. During the investigation, Ms. Johnson reached into her purse to get a cigarette, but the officer refused permission. Nonetheless, Ms. Johnson still reached for her cigarettes, at which time the officer took the cigarette package and looked in it for "officer safety purposes" finding some drugs.

The KSC held that the officer was justified in seizing the cigarette package for officer safety, but not searching it:
Courts in other states also have held that a search of a seized cigarette pack exceeded permissible law enforcement action under Terry.

The result and reasoning of our Court of Appeals and our sister states is sound. Indeed, if Tucker's alternate recitation of the order of events is believed, he placed the unopened cigarette pack on top of Johnson's purse within her reach on the kitchen counter. If he, in fact, did so, no action could more convincingly demonstrate that he perceived no danger to himself or his fellow officers. Once Tucker secured the pack of cigarettes, any nonhysterical threat its contents may have posed was eliminated and no further search was permitted.

We also note that the prosecutor's insistence at oral argument that a ruling in Johnson's favor on this point would expose law enforcement officers to a new and unacceptable risk is misguided. To the extent there is a threat, it is not new; and our legislature evidently deemed it acceptable. K.S.A. 22-2402(2)—again, a Kansas codification of Terry—specifically allows an officer to seize and keep only items "the possession of which may be a crime or evidence of crime . . . until the completion of the questioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person." It does not permit a general search of any seized item not immediately recognizable as an unlawfully possessed weapon or other evidence of a crime. There may be those who believe smoking to be unwise but, so far, those who
indulge in it in private residences are not subject to criminal prosecution. With no authority to search the seized cigarette pack, Tucker was permitted to hold onto it until he finished questioning Johnson. Then he was required to return it to her and let her continue about her business. Without the unlawful search of the cigarette pack and the cascade of events that followed it, there was not a basis for Johnson's arrest.
The state also tried, for the first time in its petition for review and in a supplemental brief, to argue that a person does not have an expectation of privacy in a cigarette package. The KSC held that such an argument had been waived:
The State did not make an issue of the sufficiency or quality of Johnson's expectation of privacy either before the district court or before the Court of Appeals. The prosecutor admitted at oral argument before this court that the issue's sudden appearance in the supplemental brief is directly attributable to Judge Hill's dissent from the panel majority. Judge Hill took the position that an individual has a reduced expectation of privacy in a cigarette pack.

We generally refuse to consider an issue on appeal if it has not been raised in the district court. Specifically, we have rebuffed a defendant's effort to advance new reasons to support suppression for the first time on appeal. What is sauce for the goose is sauce for the gander, and the State's mirror image effort to advance new reasons to avoid suppression must likewise be rejected.
So the case is remanded with directions to suppress the evidence.

Wednesday, March 14, 2012

If at first you don't succeed...

Stacey Schlimmer won not guilty verdicts on two "Jessica's Law" counts of aggravated indecent liberties with a child in a Johnson County prosecution. She was assisted at trial by Curtis Sample.

You may remember the case from State v. Whitt, 46 Kan. App. 2d 570, 264 P.3d 686 (2011), where the COA granted the State's interlocutory appeal, reversing the district court's suppression of the defendant's confession. Nonetheless, on remand, Schlimmer won the two not guilty verdicts even though the confession was put before the jury.

Saturday, March 10, 2012

April 2012 KSC docket

Here are the criminal cases on the KSC docket for April 10-16-2012. 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.

April 10--Tuesday--a.m.

State v. Roger Collins, No. 101,092 (Sedgwick)
Sentencing appeal (petition for review)
Randall L. Hodgkinson
[Affirmed; Beier; July 20, 2012]
  1. Identical offense doctrine
State v. George Brown, No. 103,842 (Cowley)
Direct appeal; Aggravated indecent liberties
Lydia Krebs
[Affd/Vacd/Rmd; Luckert; Aug. 24, 2012]
  1. Alternative means
  2. Improper reopening of state's case
State v. Willard Lagrange, No. 101,348 (Reno)
Direct appeal (petition for review); Criminal possession of firearm
Rachel L. Pickering
[Affirmed; Johnson; June 29, 2012]
  1. No applicable predicate conviction

April 11--Wednesday--a.m.

State v. Phillip Woodard, No. 105,132 (Wyandotte)
Sentencing appeal; Aggravated indecent liberties
David Scott Whinery
[Affirmed; Rosen; July 13, 2012]
  1. Mandatory minimum sentences are Cruel and Unusual
State v. Vernie Burns, No. 103,088 (Wyandotte)
Direct appeal; Aggravated indecent liberties
Korey A. Kaul
[Rvd/Rmd; Rosen; Oct. 26, 2012]
  1. Improper response to jury question
  2. Improper prosecutorial argument
  3. Improper Allen instruction
State v. Oliver McWilliams, No. 102,688 (Labette)
Direct appeal (petition for review); Making a false claim
Reid T. Nelson
[Affirmed; Nuss; Aug. 17, 2012]
  1. Insufficient evidence of false statement
State v. Tina Huffmier, No. 100,422 (Shawnee)
Direct appeal; DUI
Reid T. Nelson
[Affirmed; Biles; May 10, 2013]
  1. Improper admission of irrelevant evidence
  2. Testimony improperly invaded province of jury

April 11--Wednesday--p.m.

State v. Lester Lawson, No. 103,509 (Leavenworth)
Direct appeal; Aggravated criminal sodomy
Meryl Carver-Allmond
[Reset for argument on Oct. 3, 2012]
  1. Improper admission of interrogation obtained in violation of right to counsel
State v. Thomas Perkins, No. 103,735 (Norton)
Direct appeal (petition for review); DUI
Joanna Labastida
[Affirmed; Moritz; Dec. 21, 2012]
  1. Alternative means
State v. Buddy Ahrens, No. 103,662 (Kingman)
Direct appeal (petition for review); DUI
Michelle A. Davis
[Affirmed; Moritz; Dec. 21, 2012]
  1. Alternative means

April 12--Thursday--a.m.

State v. Jose Galaviz, No. 101,084 (Ford)
Probation violation appeal (petition for review)
Carl Folsom, III (brief); Carol Longenecker Schmidt (argue)
[Rvd/Rmd; Luckert; Dec. 28, 2012]
  1. Counsel at revocation hearing had conflict of interest
State v. Christopher Belone, No. 99,176 (Douglas)
Direct appeal (petition for review); Second-degree murder
Michelle A. Davis
[Rvd/Rmd; Johnson; Sept. 21, 2012]
  1. Improper admission of testimonial statements without confrontation
  2. Failure to give lessers on second degree murder and manslaughter
  3. Failure to give correct ordering instructions
  4. Failure to give limiting instruction (prior bad act evidence)
  5. Failure to instruct on medical negligence as intervening circumstance
State v. Frank Burnett, No. 100,766 (Reno)
Direct appeal (petition for review); Aggravated weapons violation
Shawn P. Lautz (brief); Benjamin Fisher (argue)
[Rvd/Rmd; Biles; May 31, 2013]
  1. Violation of Mandatory Disposition of Detainers Act
State v. Shaun Spagnola, No. 101,521 (Shawnee)
Direct appeal (petition for review); Possession
Meryl Carver-Allmond
[Rvd/rmd; Rosen; Dec. 7, 2012]
  1. Fourth Amendment violation (illegal search of person)

April 12--Thursday--p.m.

State v. Pepin Suter, No. 103,164 (Sedgwick)
Direct appeal (petition for review); DUI
Lydia Krebs
[Affirmed; Moritz; Dec. 21, 2012]
  1. Alternative means
  2. District court improperly convinced witness to not testify
  3. Improper instruction on driving while suspended
State v. Juan Aguirre, No. 101,337 (Finney)
Direct appeal (petition for review); Aggravated intimidation of a witness
Rachel L. Pickering
[Affirmed; Moritz; Dec. 21, 2012]
  1. Insufficient evidence
  2. Failure to give unanimity instruction

April 16--Monday--a.m.

State v. Charles Bruce, Jr., No. 105,884 (Neosho)
State appeal (transfer)
Jeb C. Griebat (brief and argue); Carl Folsom, III (brief)
[Affirmed; Beier; Nov. 2, 2012]
  1. Violation of Kansas wiretap statutes
Stae v. Michael Garza, No. 102,953 (Grant)
State appeal (petition for review)
Janine Cox
[Rvd/rmd; Biles; August 31, 2012]
  1. Fourth Amendment violation (improper stop)

Friday, March 02, 2012

Criminal contempt sentence vacated

Roger Batt won in In re J.T.R., No. 105,505 (Kan. App. Feb. 24, 2012), vacating a jail term imposed as a sanction against a mother who violated a no-contact order in a Sedgwick County child-in-need-of-care action.  The case presents a nice primer on the difference between criminal and civil contempt and the rights that attach to each:
Our statute, K.S.A. 20-1202, sets out two major classes of contempt, direct or indirect contempt. Direct contempt is committed during the sitting of the court or before a judge at chambers. All other contempts are indirect. K.S.A. 20-1202(2). Clearly, in this case, we deal with indirect contempt, as V.R.'s conduct did not occur in the presence of the judge.
Next, it is important to note two additional categories of contempt. They are denominated as civil and criminal contempt. They are distinguished by the intent of the penalty imposed and not necessarily the nature of the underlying legal or equitable action that the court is dealing with. In other words, a civil contempt proceeding may arise in a criminal case and a criminal contempt proceeding may arise in a civil case. Two questions are useful in making the distinction. Is the court seeking the enforcement of its orders? Is the court seeking to punish someone for disrespect or disobedience? If the former is true, then the answer is usually civil contempt; if it is the latter, then the contempt action is criminal.
The COA held that the contempt proceeding in this case started as a civil contempt proceeding, the but sanction imposed--a five day jail sentence--was not proper for such a contempt finding:
A punitive jail sentence as punishment for violation of the district court's order is available only for criminal contempt, not for indirect civil contempt. The 5-day jail sentence imposed here did not permit V.R. to purge her contempt. Nor did it, in any fashion, allow her to lessen her sentence through her conduct and unlock the door of the county jail.
The state apparently tried to argue on appeal that the contempt was criminal and therefore the jail sentence appropriate. The COA held that, if it was criminal, mother's Due Process rights were violated:
We acknowledge that a district court has the authority to find someone in indirect contempt of court and assess a criminal penalty. This is called indirect criminal contempt. But procedural safeguards must be observed. Even if we were to hold there was sufficient notice to V.R., the trial of V.R. was defective because the court forced V.R. to testify against herself.
Finally, the COA outlined the rights attaching to a criminal contempt proceeding:
Sentences for civil contempt must give contemnors a way through their conduct by which they can secure their release from jail. On the other hand, if the court simply wants to punish a contemnor, then the due process rights that attend any criminal charge should apply. These rights include: 
  • notice of charge and possible penalty; 
  • court-appointed counsel if indigent; 
  • right to trial; 
  • privilege against self-incrimination; 
  • right to confront witnesses and to compel testimony.
Because the COA concluded the proceeding was for indirect civil contempt, it vacated the jail sentence.
[Update: the state did not file a PR and the mandate issued on March 29, 2012.]