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.]

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