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 Nov. 16, 2012)(unpublished), reversing one conviction for DUI, fourth or subsequent, and two convictions for aggravated child endangerment in a Seward County case.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.]

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