Friday, April 27, 2012

Statements properly suppressed

Jeffrey G. Dazey won in State v. Christopher, No. 106,376 (Kan. App. April 20, 2012)(unpublished), affirming Judge Tatum's suppression of several statements as a Miranda violation.  Although the COA reversed suppression of evidence on Fourth Amendment grounds, it held that Mr. Christopher was in custody and therefore Miranda warnings were required:
A total of two detectives were in the room with Christopher at the time he made the statements at issue here, and nurses were in and out of the room constantly. The door was open, but the curtains were pulled in front of it. There was no show of force by the police. Christopher had entered the hospital on his own initiative. Detectives spoke to Christopher for a combined total of about 20 minutes, with the challenged questioning taking up only about 3–4 minutes. Detectives had learned from Golden that a shooting had occurred in Kansas City, Missouri, and Peters testified that at that point “it was determined, okay, yeah, we're going to have to at some point take him into custody here because we can't let him go until we figure out where that victim is.” Christopher was not formally taken into custody by the detectives or told he was in custody at that time, but the sheriff's department was contacted to provide “a couple deputies,” to guard him until after his surgery. He was subsequently guarded while in the hospital and arrested by deputies after his surgery.
At the same time, unbeknownst to the detectives, Schadegg was in his patrol car writing up an arrest report related to Christopher's possession of cocaine and drug paraphernalia. Schadegg and Douglas, who found the drugs, conceded that once they found the drugs and paraphernalia, Christopher was not free to leave. But Christopher was not immediately arrested because he was being admitted to the hospital for surgery on his foot. Neither Douglas nor Schadegg ever advised Christopher of his Miranda rights, nor did they ask him any further questions after searching the room and locating the drugs.
. . . .
After considering the Morton factors and the unique facts of this case, we agree with the district court and find that, based on the totality of the circumstances, a reasonable person in Christopher's position would not have felt he or she was at liberty to terminate this interrogation by the detectives and leave. We find it compelling that Christopher watched while officers recovered a crack pipe and 14 baggies of cocaine from his clothing, leaving little doubt that his arrest would be imminent and his freedom to leave the hospital curtailed. In addition, officers were in his room or outside his door at all times and he was arrested following his surgery.
[Update: the mandate issued in this case on August 28, 2012.]

Tuesday, April 24, 2012

May 2012 KSC docket

Here are the criminal cases on the KSC docket for May 21-25, 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.

May 21--Monday--a.m.

State v. Jazwane Jefferson, No. 98,742 (Wyandotte)
Direct appeal; Felony murder
Michael J. Bartee
[Rvd/Rmd; Moritz; September 6, 2013]
  1. Failure to suppress statements
  2. Failure to give instruction on compulsion
  3. Improper burden of proof instruction
  4. Insufficient evidence
  5. Improper prior bad act evidence
  6. Improper joinder
  7. Improper prosecutorial argument
  8. Multiplicity
  9. Improper answer to jury question
State v. Michael Kelly, Jr., No. 102,210 (Sedgwick)
Direct appeal (petition for review); Possession
Rick A. Kittel
[Rmd to COA; Luckert; Sept. 28, 2012]
  1. Contemporaneous objection at trial on stipulated facts
  2. Fourth Amendment violation (improper stop)
State v. Anthony Ebaben, No. 102,129 (Marion)
Motion to withdraw plea appeal (petition for review)
Donald R. Snapp
[Reversed; Biles; July 20, 2012]
  1. Failure to allow plea withdrawal (no factual basis)

May 22--Tuesday--a.m.

State v. Robert Haberlein, No. 102,254 (Wyandotte)
Direct appeal; First-degree (premeditated) murder
Korey A. Kaul
[Affirmed; Beier; Dec. 28, 2012]
  1. Failure to give lesser for second-degree murder
  2. Insufficient evidence of alternative means of kidnapping
  3. Improper instruction on aggravated robbery (outside complaint)
  4. Apprendi violation in re hard-50 sentence
State v. John Marshall, No. 101,641 (Shawnee)
Direct appeal (petition for review); Burglary
Korey A. Kaul
[Affirmed; Luckert; July 27, 2012]
  1. Improper prosecutorial argument
  2. Improper eyewitness ID instruction
State v. Bernard Cline, No. 102,877 (Wyandotte)
Direct appeal; First-degree (premeditated) murder
Theresa L. Barr (brief); Randall L. Hodgkinson (argue)
[Affirmed; Rosen; August 17, 2012]
  1. Denial of right to present evidence re low functioning ability
  2. Failure to suppress statement

May 23--Wednesday--a.m.

State v. Douglas Plummer, No. 101,684 (Reno)
Direct appeal (petition for review); Aggravated robbery
Michelle A Davis
[Rvd/Rmd; Johnson; Aug. 24, 2012]
  1. Failure to give lesser on theft
  2. No evidence of completed crime
  3. Failure to give lesser on attempted aggravated robbery
State v. Keshia Williams, No. 102,615 (Labette)
Direct appeal (petition for review); Aggravated battery
Rick A. Kittel
[Affirmed; Johnson; Sept. 21, 2012]
  1. Failure to instruct on no duty to retreat
  2. Failure to instruct on use of force in defense of dwelling
  3. Failure to give lesser on aggravated battery
  4. Improper peremptory strikes
State v. Rodrigo Trujillo, No. 102,840 (Johnson)
Direct appeal (petition for review); Possession
Meryl Carver-Allmond
[Affirmed; Johnson; Feb. 15, 2013]
  1. Failure to give unanimity instruction
  2. Fourth Amendment violation (no probable cause to arrest)
State v. Elton Simmons, No. 102,715 (Sedgwick)
Direct appeal (petition for review); Aggravated battery
Shawn E. Minihan
[Rvd/Rmd; Johnson; Aug. 24, 2012]
  1. Improper elicitation of prior bad act evidence
  2. Failure to give lesser on aggravated battery
  3. Improper presumption of intent instruction

May 24--Thursday--a.m.

State v. Jeffrey Stimec, No. 103,229 (Wyandotte)
Direct appeal; Aggravated indecent liberties
Michelle A. Davis
[Rvd/Rmd; Mortiz; April 19, 2013]
  1. Improper prosecutorial argument
  2. Failure to prove crime after July 1, 2006
  3. Improper depature sentence

Thursday, April 19, 2012

Mutually exclusive verdicts require new trial

Rachel Pickering won in State v. Hernandez, No. 101,719 (Kan. April 12, 2012), obtaining a new trial in a Sedgwick County aggravated indecent liberties with a child prosecution.  The unusual circumstances in the case were summarized by the KSC:

Over Hernandez' objection at trial, the jury was instructed on both aggravated indecent liberties and the lesser included offense of attempted aggravated indecent liberties. On separate pages of the verdict form, the jury returned guilty verdicts on both charges. Hernandez moved for a mistrial, claiming that there was a fundamental error in the jury verdicts. In response, the State likened the situation to one where a defendant is charged with alternative counts and the jury convicts on both alternative counts.
The KSC held that the inconsistent and internally mutually exclusive verdicts required a new trial:
A mistrial was appropriate under K.S.A. 22-3423(1)(b) because these verdicts are legally and factually inconsistent. The trial court could not legally enter judgment on either verdict because the jury's finding on the other verdict precludes such judgment. Aggravated indecent liberties with a child requires a completed crime. Attempted aggravated indecent liberties with a child requires that the crime was not completed. Logic prevents these crimes from merging, and K.S.A. 21-3107(2)(c) prohibits conviction of both the crime charged and an attempt to commit the crime charged.
In this case, the trial court abused its discretion in denying Hernandez' motion for a mistrial. The trial court's action was based on an error of law, that is, the trial court erroneously concluded that it could deal with the problem at sentencing as if the charges had been brought in the alternative, or as if the charges merged so that the defendant was only convicted of the greater offense. As a result, defendant's conviction must be reversed and the case remanded for a new trial.
This is a nice win in light of a lot of cases that have said inconsistent verdicts aren't themselves a Due Process violation.  This case demonstrates that the mutually exclusive nature of a completed crime and an attempt presents a different problem.

Friday, April 06, 2012

Frazier not "fixed"

Heather Cessna and I won in State v. Snellings, No. 101,378 (Kan. April 5, 2012), obtaining a reduced sentence on one count of possession of a precursor. Although the KSC rejected a similar argument regarding a manufacture count, the KSC agreed that the current precursor statute, which prohibits possession of several specific items related to manufacture of methamphetamine, is still identical to the statute prohibiting possession of paraphernalia.

In 2002, in State v. Frazier, the COA held that possession of precursors (then a severity level 1 drug offense) was identical to possessing products used to manufacture methamphetamine (a severity level 4 drug offense). This holding was affirmed by the KSC in 2005 in State v. Campbell. In 2006, the Legislature removed "products" from the definition of paraphernalia, presumably in response to Frazier/Campbell (it also reduced the severity level for possession of a precursor from 1 to 2). But the statute continued to include as drug paraphernalia "equipment and materials of any kind." So the question is whether precursors are "equipment and materials of any kind" intended for use to manufacture methamphetamine. The KSC held that under any plain reading the answer is yes:

As Snellings points out, general rules of statutory interpretation require courts to give ordinary words their ordinary meaning. "Material" is defined in part as "the substance or substances out of which a thing is or can be made; [c]omposed of or relating to . . . substances." Webster's II New Collegiate Dictionary 675 (1995). Because ephedrine and pseudoephedrine are items that are precursor chemicals used in the manufacture of methamphetamine, they fit within this definition of "material." This point is illustrated by the legislature's own use of the word "materials," in K.S.A. 21-4717(a)(1)(D), which includes "precursor chemicals" as an example of "materials" that may warrant an aggravated sentence: "The presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, laboratory equipment, lighting, irrigation systems, ventilation, power-generation, scales or packaging material."

I don't think this will effect as many people as Frazier, but it should result in some reduced sentences.

Appeal on question reserved does not effect sentence

Michael P. Whalen won in State v. Berreth, No. 99,937 (April 6, 2012), reversing the previous imposition of a higher sentence after the state filed an appeal. The timeline is this case is convoluted to say the least (it takes up 11 pages of a 42 page opinion). Short story: Mr. Berreth was convicted and sentenced to 254 months in prison, which was affirmed in 1997. In 2004, Mr. Berreth started some post-conviction proceedings attacking one of his convictions as multiplitous--the district court agreed and reduced the sentence to 192 months. The state appealed. On appeal, the COA held that the sentence was improperly reduced and remanded for reimposition of the original sentence. The KSC denied review of that decision. As a result, Mr. Berreth was returned from postrelease supervision to prison.

One big question in the current case was: what type of appeal was that? If it was an appeal from a habeas ruling (under K.S.A. 60-1507), the appellate court would have jurisdiction and could remand the habeas order. If it was an appeal from a question reserved, any appellate decision should not effect the sentence. The KSC ultimately held that the state had pretty specifically said that the appeal was from a question reserved in its notice of appeal and docketing statement and, therefore, held that the COA in the first appeal had improperly recharacterized the appeal as a habeas appeal. The KSC also clarified that, despite some previous published cases in which it had remanded for resentencing on appeals from questions reserved, an appeal on a question reserved cannot effect the defendant:

We reemphasize our rule to keep future courts from straying from it. An appellate court's answer to a question reserved by the State has no effect on the criminal defendant in the underlying case.

So two big points: (1) state is bound by its election of avenue for appeal and (2) an appellate court cannot vacate a sentence in an appeal on a question reserved. It's nice to have both of of those points clarified.

Monday, April 02, 2012

Prior bad act evidence requires new trial

Christina Waugh won in State v. Preston, 98,629 (Kan. March 23, 2012), obtaining a new trial in a Johnson County drug prosecution. The KSC applied its precedent in State v. Boggs (blogged about here) holding that: "admission of prior drug use was not admissible when the defendant denied ever having possessed the drugs." The KSC held that the same situation presented in the instant case:
In summary, this court has adopted a rule that distinguishes between cases in which the defendant acknowledges but attempts to provide an innocent explanation for his or her actions and those in which the defendant disputes the allegations outright. As we stated in Boggs: "[T]he defendant's use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455." Applying that same analysis here, we hold that Preston's prior conviction was not admissible under K.S.A. 60-455 and Boggs because he disputed the drugs were his.

The KSC went on to hold that the "State carries the burden to demonstrate there is no reasonable probability that the error affected the trial's outcome in light of the entire record because it was the beneficiary of this nonconstitutional error." This is a pretty important point in relation to harmless error analysis. The KSC held that the state did not meet this burden and therefore reversed and remanded for a new trial.