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."

Friday, August 24, 2012

KSVPA requires effective assistance of counsel

Michael P. Whalen won in In re Ontiberos, No. 100,362 (Aug. 17, 2012), obtaining a new trial in a Sedgwick County Kansas Sexually Violent Predator Act proceeding.  This case had been in the blog a couple of times (here and here) on its way to the KSC.  The KSC established that (1) respondents in KSVPA cases have a constitutional right to effective assistance of counsel, (2) that respondents can raise and IAC claim though a petition for writ of habeas corpus under K.S.A. 60-1501, and (3) that Mr. Ontiberos in fact recieved IAC.

The KSC distinguished KSVPA proceedings from other civil proceedings where no constitutional right to counsel attaches.  And after considering several factors, the private interest involved (liberty), risk of erroneous deprivation, and governmental burden of requiring counsel, the KSC held that the right to counsel did apply:
We hold that the caselaw and theMathews factors support a holding that Ontiberos has a due process right to the appointment of counsel at the KSVPA trial. The Court of Appeals erred by holding otherwise. And since we have held that there is a constitutional right to assistance of counsel in KSVPA proceedings, our caselaw instructs that this right carries with it a correlative right to competent, effective counsel.
As a side note, the KSC analyzed this constitutional right as arising from "the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution, or Section 18 of the Kansas Constitution Bill of Rights," and ultimately held that Mr. Ontiberos "has a right to counsel under the federal and state constitutional due process provisions." (emphasis added).  So this is a state constitutional ruling.

The KSC went on to hold that persons held under the KSVPA can use K.S.A. 60-1501 as a vehicle for raising IAC claims and then, applying Strickland, found that appointed counsel's failure to introduce corroborating evidence, stipulation to the state's expert's review of evidence, and failure to object to cross-examination (including a mistatement of fact by the prosecutor), showed IAC:
We find it disturbing that the State's method of cross-examination pervaded the trial without intervention by Ontiberos' advocate. No evidence was admitted for the jury's review to determine the accuracy of the facts alleged to underlie the State's questions, and this was particularly egregious since some of the State's questions were not supported by the record. This again suggests Ontiberos' trial counsel lacked sufficient familiarity with the evidence in his case and the rules governing admissibility of evidence. And while the substance of the parties' stipulation is not entirely clear, we can tell without further detail that it was ineffective assistance of counsel for Ontiberos' attorney to enter into a stipulation that avoided the need to admit evidence that would allow the jury to make these essential determinations.
The KSC held the IAC was cumulatively prejudicial and, therefore, reversed and remanded for a new trial.

Finally, the KSC noted that the prosecutors' tactics in this case was misconduct "under any standard":
Just as it was ineffective assistance of counsel for Ontiberos' attorney to allow the State to cross-examine Ontiberos and Dr. Barnett without admitting into evidence the documents the State relied on for impeachment, the State committed error by cross-examining the witnesses in this fashion. By failing to identify and admit into evidence the documents the State relied upon, the State prevented the jury from deciding the facts and properly assessing credibility. It also allowed the State to mischaracterize the KDOC discipline report and insinuate Ontiberos was disciplined while imprisoned for having an unauthorized weapon without support in the record. This is misconduct under any standard. If the State initiates another civil commitment proceeding against Ontiberos, the State must admit extrinsic evidence to complete the impeachment if a trial witness denies making a prior inconsistent statement or the witness claims that he or she cannot remember the events that form the factual premise for the question.
Here is coverage of the case in the Wichita Eagle.

Tuesday, August 21, 2012

3, 2, 1, and . . . we're live

Here is a press release announcing that the KSC would start live-streaming video of its arguments.  The KSC has been streaming audio for a few years now and this is the next step in its attempt to be more accessible to the public.  I wonder if we could arrange for our clients in prison to view this?  They hardly ever get to see their own cases argued now and it does not seem like it would be that difficult to arrange for it over the internet.

Needless to say, this set off a furor of concern about fitness and wardrobe in the ADO.

Friday, August 17, 2012

Loss of video during lengthy delay = constitutional speedy trial violation

Washburn student intern Jessica Browning and I won in State v. Salcido-Quintana, No. 105,007 (Kan. App. Aug. 10, 2012)(unpublished), affirming Judge Kaufman's dismissal of a Sedgwick County DUI prosecution due to a constitutional speedy trial violation.  One factor discussed at length in the case was the state's failure to be able to produce a videotape of the stop after a lengthy delay:
Because the video has not been produced, there is no way to know whether it would favor the State or Salcido–Quintana. Videotaping DUI and other traffic stops serves several purposes. As we have noted, the recording furnishes a comparatively objective depiction of what actually happened, particularly as the stop is made and the driver is then questioned about drinking and asked to perform field sobriety tests. The visual record may graphically show the driver's impaired speech, coordination, and mental acuity—all signs indicative of intoxication. The audio portion will memorialize a defendant's incriminating description of alcohol consumption or feeble efforts to otherwise explain apparent intoxication. In some cases, however, the video record may show an unimpaired driver.
A video can protect an officer from suggestions that he or she overstated the driver's impairment or otherwise overreached in conducting the stop and arrest. Or it may prove just that sort of overselling in an officer's report and testimony. And its very existence may furnish an incentive for an officer to avoid embellishing in the first place.
What often may not be shown in a video is the full extent of the officer's reasonable suspicion in deciding to make a stop. Deputy Gill testified that the video automatically began to run when he turned on his patrol car's emergency lights. But an officer usually does that only after he or she has determined there is reasonable suspicion to make a stop. In some instances, an officer may manually engage the video and will do so to record the poor driving prompting the stop.
From an evidentiary standpoint, the missing video is akin to a faded memory or lost witness. The absence of that evidence probably assists one side or the other in a given case. A court faces a difficult, often nearly impossible, task in making that determination about fuzzy recollections and vanished witnesses. With the lost video, this court confronts the same dilemma.
But there are a couple of significant differences between the video, on the one hand, and diminished or lost witness testimony, on the other. The passage of time hasn't dulled what the video would contribute if it could be retrieved. More important here, perhaps, the State bears direct responsibility for the loss of the video. The sheriff's department developed the procedures and the system for archiving and retrieving the digital recordings. And Deputy Wannow testified that sometimes videos simply cannot be retrieved once archived—something that happens on a regular and predictable, if relatively infrequent, basis. Loss of archived data was a known consequence of the equipment and processes the sheriff's department used. Under those circumstances, the prejudice to Salcido–Quintana should be considered more significant for purposes of establishing a constitutional speedy trial violation than the purely inferential type recognized in Doggett.
With the passage of time, witnesses and memories come and go. But that loss cannot be attributed directly to the State. The missing video, however, can and should be imputed to the State. If the sheriffs department used a more reliable data storage and retrieval system, the evidence would be available. The failure to do so may be analogized to the government's negligence in failing to make diligent efforts to notify a defendant of criminal charges after they have been filed. That negligence cuts against the State in a Barker analysis. The State's inability to produce the video data of the stop and arrest similarly burdens Salcido–Quintana's speedy trial rights. In this case, there is nothing he could have done to avoid that result. Accordingly, the loss of the video should be weighed at least somewhat more heavily against the State than the inferred prejudice recognized in Doggett.
The COA went on to review the Barker v. Wingo factors and affirmed Judge Kaufman's decision:
On balance, the length of the delay properly measured at more than a year and the comparative simplicity of the case itself coupled with the State's failure to offer any justification for the delay in notifying SalcidoQuintana of the charges well support the district court's conclusion in finding a constitutional speedy trial violation. SalcidoQuintana's relatively late assertion of his right does not materially change the picture; it is otherwise accounted for in measuring the delay. As we have explained, the prejudice assessment cannot be treated as neutral. It, too, tilts against the State.
[Update: the state filed a PR on September 10, 2012.]

[Further update: the KSC denied the state's PR and the mandate issued on March 29, 2013.]

No reasonable suspicion of impeding traffic or obstructed vision

Michael Redmon won in State v. Saucedo, No. 106,742 (Kan. App. Aug. 10, 2012)(unpublished), reversing a Wyandotte County drug conviction.  The main issue had to do with a car stop for impeding traffic and driving with a cracked windshield.   Although the COA held that the district court's resolution of contested facts supported a finding that the car was parked three feet from the curb, it disagreed with the legal conclusion that this fact supported reasonable suspicion of impeding traffic:
First, as the parties conceded at oral argument, it does not appear that K.S.A. 8-1569 is applicable to the facts of this case. The statute only applies “outside a business or residence district .” The undisputed evidence in this case indicates that Saucedo's car was parked in a residence district and he was parked directly in front of someone's house.
Second, even if the statute applied, the State failed to present any evidence whether it was practicable for Saucedo “to stop, park or leave such vehicle off the roadwayFor instance, the State failed to establish if there was a driveway that Saucedo could have pulled into rather than parking on the street.
Third, the State failed to present any evidence that Saucedo's car was impeding traffic on the roadway. In fact, when asked if there was enough room for another vehicle to go around the stopped car, Hopkins replied, “Possibly on the right-hand side.” On cross-examination, Hopkins agreed that “a car could have gone on the right-hand side ... in that right lane and passed him without any trouble.” Finally, the State failed to present any evidence whether Saucedo's car could be seen from 200 feet away.
The COA similarly held that the record did not support a finding that the driver's windshield was cracked in a way that obstructed the driver's vision:
Here, the State's only evidence of a cracked windshield was Hopkins' testimony that, as he pulled in behind Saucedo's car, he noticed “an obstructed windshield.” The State made no attempt to dispute Mack's testimony that the crack in the car's windshield was 3 inches long toward the bottom right-hand corner of the passenger's side of the windshield. The county ordinance provides that no person shall drive a vehicle with a damaged front windshield which “substantially” obstructs the driver's clear view of the roadway. We conclude that the State failed to meet its burden that Hopkins had reasonable suspicion to stop and detain Saucedo based on a damaged windshield that substantially obstructed the driver's view.
Because the officer lacked reasonable suspicion to stop the car, the subsequent search of the car was illegal.

[Update: the state did not file a PR and the mandate issued on September 13, 2012.]

Thursday, August 16, 2012

Waiver of right to testify

Here is a petition for writ of certiorari filed seeking review of State v. Anderson, No. 99,123 (Kan. May 11, 2012).  We sought review on the issue of whether a state trial court should get a knowing and voluntary waiver of the right to testify on the record.  As noted in the petition, there is a split of authority on that question.  We more frequently see short colloquys on the record in cases, so it certainly wouldn't be a hardship if the SCOTUS made it clear that the right to testify can only be waived like other personal trial rights.  Thanks to Washburn student intern Aarika Wellnitz for help on this petition.

[Update: the SCOTUS requested that the state file a response in this case.  It is due on October 11, 2012.]

[Further update: the SCOTUS denied the cert petition without comment on October 29, 2012.]

Wednesday, August 15, 2012

Defendant must be present when jury question answered

Lydia Krebs won in State v. Sanchez, No. 105,547 (Kan. App. Aug. 10, 2012), reversing convictions of one count of aggravated robbery, two counts of aggravated assault, and one count of theft.  The court reversed the convictions and remanded for a new trial because the district court answered a question from the jury when the defendant was not present for the discussion of the answer or the answer itself.  The court explained that this violated Sanchez's statutory and constitutional rights.

The case involved a robbery of a check-cashing window at National Beef in Seward County.  The suspect was seen getting into a Jeep Liberty after the robbery, a vehicle which was allegedly linked to to Mr. Sanchez at a later time.  According to the panel, the following procedural facts arose at trial:
After the case was given to the jury for deliberations, the jury submitted a question to the district court, asking, “How was the VIN of the Jeep Liberty obtained?” Though defense counsel was present during the discussion with the court and the State to form a response to the question, the defendant was not present, nor was he present when the court gave its answer to the jury. The court asked defense counsel if he was “comfortable having this portion of the hearing without [the defendant] present,” to which he responded, “Yes.”

The court ultimately answered the jury's question by stating, “Ladies and gentlemen, I am unable to answer your question. Please use the collective memory and recollection of the entire jury as to the testimony and evidence admitted.” The record does not tell us whether this answer was read aloud in court or simply submitted in writing, only that “[a] response was given to the jury and deliberations continued.” The court asked defense counsel if there were any objections to the proposed answer and defense counsel said there were none. No objection was made thereafter to the court's response or to the defendant's absence.

The appellate panel explained that a defendant has a right to be present at every stage of their trial under Confrontation Clause of the Sixth Amendment, the Due Process Clause of the Fourteenth Amendment, and K.S.A. 22-3405. The court also explained that a defendant has the explicit statutory right to be present for a jury question/answer during deliberations under K.S.A. 22-3420(3).  The court held that the answering of the jury's question without the input or presence of Sanchez violated his constitutional and statutory rights to be present.

The COA also held that the district court failed to give a meaningful response to the jury.  It stated that the district court should have directed the jury to the testimony of the applicable witnesses or offered a read-back of their testimony.  In fact, the court had a statutory duty to offer a meaningful response under K.S.A. 22-3420(3).

Lastly, the court held that the error was not invited and that the State did not prove that the error was harmless.  On the issue of "invited error," the court stated that there is a distinction when the answer to the jury is fact-related instead of a technical legal question.  The court noted that Sanchez could have helped to answer the factual question from the jury, and nothing showed that he had any input whatsoever.  Thus, the error was not invited by the defense.  In addition, the court explained that the State had not met its burden to prove the error harmless, given the "cursory" argument regarding harmlessness in the State's brief and the fact that the testimony regarding the VIN did not directly link Sanchez to the robbery.

Friday, August 10, 2012

October 2012 KSC Docket

Here are the criminal cases on the KSC docket for October 22-26, 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.

October 22--Monday--a.m.

State v. Misty Tague, No. 104,176 (Sedgwick)
Direct appeal; Felony murder
Carl F. A. Maughan
[Affirmed; Luckert; March 22, 2013]

     1.  Failure to allow defendant to elicit testimony of unavailable witness
     2.  Improper admission of statements against interest
     3.  Gruesome photographs
     4.  Improper restriction of cross-examination
     5.  Improper instructions (aiding and abetting)

State v. Dinh Loc Ta, No. 104,241 (Sedgwick)
Direct appeal; aggravated indecent liberties with a child
Michelle A. Davis
[Reversed; Luckert; Dec. 28, 2012]

     1.  Failure to require state to prove lewd fondling or touching
     2.  Prosecutorial misconduct (closing argument)
     3.  Insufficient evidence of alternative means
     4.  Failure to grant departure

State v. Raymond Ruggles, No. 104,262 (Montgomery)
Sentencing appeal
Korey A. Kaul
[Affirmed; Rosen; June 21, 2013]

     1.  Whether imposition of life sentence for solicitation violates Cruel and Unusual Punishment

October 23--Tuesday--a.m.

State v. Jaime Rodriguez, No. 103,467 (Wyandotte)
Direct appeal; Felony murder
Joanna Labastida
[Affirmed; Beier; Dec. 7, 2012]

     1.  Failure to give lesser
     2.  Gruesome photographs
     3.  Failure to grant new trial after improper comment on credibility of witnesses
     4.  Improper instruction that shaking resulted in great bodily harm

State v. Shanna Friday, No. 101,806 (Douglas)
Direct appeal (petition for review); Second degree murder
Shawn E. Minihan
[Affirmed; Nuss; Aug. 9, 2013]

     1.  Prosecutorial misconduct (closing argument)
     2.  Failure to give self-defense instruction
     3.  Improper aiding and abetting instruction
     4.  Improper restriction on informing jury of witness' plea bargain

State v. Charles Bridges, No. 101,222 (Wyandotte)
Direct appeal (petition for review); Second degree (unintentional) murder
Heather R. Cessna
[Affirmed; Nuss; Aug. 9, 2013]

     1.  Failure to allow theory of defense
     2.  Failure to suppress statements
     3.  Improper witness comment on defendant's credibility
     4.  Prosecutorial misconduct (personal opinion of credibility)
     5.  Identical offense doctrine second degree (unintentional) murder/involuntary manslaughter

October 24--Wednesday--a.m.

State v. Allen Smith, No. 102,573 (Douglas)
Direct appeal; Felony murder
Adam M. Hall
[Affirmed; Beier; Dec. 21, 2012]

     1.  Improper admission of prior bad act evidence
     2.  Improper giving of accomplice instruction of defense objection
     3.  Multiplicitous convictions
     4.  Prosecutorial misconduct (closing argument)

State v. Gerardo Urista, No. 103,089 (Shawnee)
Sentencing appeal (petition for review)
Rachel L. Pickering
[Rvd/Vac/Rmd; Rosen; Feb. 8, 2013]

     1.  Violation of plea agreement
     2.  Registration requirement without proper jury findings

State v. Terry Mishmash, No. 103,158 (Crawford)
Sentencing appeal (petition for review)
Lydia Krebs
[Affd/Vacd/Rmd; Rosen; Dec. 7, 2012]

     1.  Judicial personal use finding requiring registration unconstitutional
     2.  Improper finding of personal use

October 25--Thursday--a.m.

State v. Roy Hinton, No. 101,369 (Montgomery)
Direct appeal (petition for review); DUI
Rick Kittel
[Dismissed as improvidently granted Aug. 31, 2012]

     1.  Failure to grant motion to suppress evidence
     2.  Failure to allow counsel to argue no erratic driving
     3.  Improper imposition of fine

October 26--Friday--a.m.

State v. Sidney Gleason, No. 97,296 (Barton)
Direct appeal; Capital Murder and Death Sentence
Rebecca Woodman (brief); Sarah E. Johnson (argue)

     1.  Lack of subject-matter jurisdiction for capital murder
     2.  Failure to give lesser of felony murder
     3.  Failure to instruct jury on specific intent
     4.  Multiplicitous convictions
     5.  Failure to prove elements of capital murder
     6.  Improper finding of unavailable witness
     7.  Failure to grant mistrial after witness refuses to testify
     8.  Prosecutorial misconduct (closing argument)
     9.  Death penalty disportionate
    10.  Improper sentencing verdict forms
    11.  Insufficient evidence of aggravating factors

Friday, August 03, 2012

Touching the line isn't crossing the line

Wm. Rex Lorson won in State v. Gross, No. 107,320 (Kan. App. July 27, 2012)(unpublished), affirming Judge Hellmer's suppression order in a Saline County DUI prosecution.  Judge Hellmer suppressed evidence based on his finding of lack of reasonable suspicion for a car stop.  The state argued that the officer had reasonable suspicion that Mr. Gross failed to maintain a single lane.  The COA applied State v. Marx (blogged about here) to uphold the district court's finding that touching the fog line on a couple of occassions while going around bends did not support reasonable suspicion of failure to maintain a single lane.  The COA also agreed that touching the center line once did not support reasonable suspicion of failure to remain on the right half of the roadway.
This court has held that crossing a lane marker once constitutes reasonable suspicion of a single lane violation. This court has also held that crossing the fog line on two occasions amounts to reasonable suspicion.  And so does repeatedly touching the fog line and crossing it four to six times.  Here, Gross' truck touched the fog line twice. Deputy Anderson did not have reasonable suspicion that Gross committed a single lane violation because his truck never crossed the fog line.
This court has held that crossing the centerline once constitutes reasonable suspicion of a right of center violation.  Here, Gross' truck touched the centerline once. Deputy Anderson did not have reasonable suspicion that Gross committed a right of center violation because his truck never crossed the centerline.
Furthermore, the district court's factual finding that Gross did not otherwise drive erratically is also supported by substantial competent evidence—again, the video. This forecloses any argument that Deputy Anderson had reasonable suspicion of DUI.
Because the officer did not have reasonable suspicion to stop the car, the COA upheld Judge Helmer's suppression order.

[Update: the state did not file a PR and the mandate issued on August 30, 2012.]