Friday, November 30, 2012

Short list for COA, part II

Here is a press release announcing that Dennis Depew, a Neodesha attorney; Stephen M. Kerwick, an Eastborough attorney; and Sedgwick County District Judge Anthony J. Powell were nominated by the Supreme Court Nominating Commission for the vacancy created on the COA by the untimely death of Chief Judge Greene.  The Governor has 60 days to appoint one of these persons to the COA.

Here is coverage of the short list in the Topeka Capital-Journal, including some criticism of the process by some of the unsuccessful applicants.

Change of county doesn't reset speedy trial clock

Troy V. Huser won in State v. Quackenbush, No. 107,189 (Kan. App. Nov. 21, 2012)(unpublished), reversing a Pottawatomie County DUI conviction.  Mr. Quackenbush had originally been charged in Riley County after an accident near the Riley County-Pottawatomie County line.  At some point, the state dismissed the Riley County charge and later Mr. Quackenbush was charged in Pottawatomie County.  Mr. Quackenbush argued that the district court violated his statutory speedy trial by failing to aggragate the time of the two prosecutions.  The COA, attempting to determine whether the charges were identical, applied a multiplicty analysis and conclude they were:
the Riley County DUI charge and the Pottawatomie County DUI charge clearly arose from unitary conduct—Quakenbush's alleged drunk driving and motorcycle accident in Tuttle Creek State Park on August 23, 2009. Given the unique procedural posture of this case, it is less clear which test to apply under the second component. Although both the Riley County DUI charge and the Pottawatomie County DUI charge were brought under K.S.A. 2009 Supp. 8-1567(a), the unit of prosecution test appears to be inapplicable because the State never charged Quakenbush with two or more separate violations of the same statute arising out of the same conduct. Thus, it is more logical to apply the same elements test.
The State argues in essence that the Riley County DUI charge and the Pottawatomie County DUI charge did not have the same elements because one required the State to prove that the offense occurred in Riley County and the other required the State to prove that the offense occurred in Pottawatomie County. The State's argument rests on the flawed presumption that jurisdiction is an essential element in every criminal offense. This is not correct. As we have shown in the analysis of Rivera, that while the State is required to prove jurisdiction and venue in every criminal case, jurisdiction and venue are not, strictly speaking, elements of every criminal case.
Under the same elements test, the Riley County DUI charge and the Pottawatomie County DUI charge were brought under the same statute and have the exact same elements. It is irrelevant that the State would have been required to prove a different jurisdiction under each charge because jurisdiction and venue are not elements of a DUI offense. Thus, the two DUI charges were “identical charges” for the purpose of aggregation under the speedy trial statute.
The State did not make a showing of necessity at the time the Riley County DUI charge was dismissed. Further, because the two DUI charges were identical charges, the district court erred in refusing to aggregate the time chargeable to the State for statutory speedy trial purposes. Quakenbush was not brought to trial within the statutorily required 180 days.

Because the speedy trial clock had run, the COA reversed the conviction.

[Update: the state did not file a PR and the mandate issued on December 27, 2012.]

Wednesday, November 28, 2012

December 2012 KSC Docket

Here are the criminal cases on the KSC docket for December 10-14, 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.

December 10--Monday--a.m.

State v.  Andrew Johnson, No. 100,864 (Sedgwick)
Direct appeal (petition for review); DUI
Carl F. A. Maughan
[Affirmed; Johnson; May 3, 2013]
  1.  Failure to dismiss due to destruction of evidence
  2.  Failure to suppress breath test
  3.  Failure to exclude test results
  4.  Confrontation clause violation (Intoxilyzer certification)
State v. Matthew Hines, No. 102,233 (Sedgwick)
State appeal (petition for review)
Janine Cox
[Rvd/rmd; Rosen; Feb. 15, 2013]
  1. Departure appeal
State v. Patrick Hood, No. 101,953 (Sedgwick)
Direct appeal; Burglary/theft
Lydia Krebs
[Affd/Rvd; Johnson; May 17, 2013]
  1. Multiplicity
State v. Jeffery Swindler, No. 104,580 (Sedgwick)
Direct appeal; Rape
Lydia Krebs
[Rvd/rmd; Beier; Feb. 15, 2013]
  1. Alternative means
  2. Denial of motion to suppress statements

December 11--Tuesday--a.m.

State v. Ronald Graham, No. 101,717 (Geary)
Sentencing appeal/Cross-appeal K.S.A. 60-1507 appeal
Sam S. Kepfield, David P. Troup
[Affd/Moot; per curiam; Jan. 18, 2013]
  1. Failure to convert indeterminate sentence (appeal)
  2. Jurisdiction to grant discharge under K.S.A. 60-1507 (cross appeal)
State v. Bruno Edgar, No. 103,028 (Cowley)
Direct appeal (petition for review); DUI
Joanna Labastida
[Rev/Rmd; Biles; Feb. 1, 2013]
  1. Denial of motion to suppress (improper extension of stop)
  2. Denial of motion to suppress (invalid consent)
State v. Randy Herbel, No. 103,558 (Marion)
Direct appeal; Rape
Meryl Carver-Allmond
[Affirmed; Nuss; April 5, 2013]
  1. Improper allowing jury to watch video without defendant or attorney present
  2. Improperly allowing witness to testify with mother next to her

December 11--Tuesday--a.m.

State v. Robert Peterson, No. 102,198 (Douglas)
Sentencing appeal (petition for review)
Christina M. Kerls
[Rvd/Vac/Rmd; Beier; Feb. 8, 2013]
  1. Violation of plea agreement
  2. Lifetime postrelease Cruel and Unusual Punishment
State v. Donnell Dobbs, No. 103,820 (Wyandotte)
Direct appeal; First-degree murder
Matthew J. Edge
[Affirmed; Moritz; September 20, 2013]
  1. Improper grant of continuance to state
  2. Incorrect eyewitness ID instruction
State v. Kameron King, No. 99,479 (Wyandotte)
Direct appeal (petition for review); Arson
Matthew J. Edge (argue); Carl Folsom, III (brief)
[Aff'd/Rev'd; Luckert; Aug. 9, 2013]
  1. Failure to grant mistrial after bad acts evidence
  2. Denial of right to be present by answering jury question in writing
  3. Improper response to jury question
  4. Multiplicity
  5. Lack of unanimity
  6. Improper Allen instruction

Monday, November 26, 2012

Proof of counsel in misdemeanors

Michael P. Whalen and Krystle M.S. Dalke won in State v. David Jones, No., 107,020 (Kan. App. Nov. 16, 2012)(unpublished) obtaining remand for evidentiary hearing in a motion to correct illegal sentence in a Sedgwick County rape prosecution.  The issue revolved around whether some misdemeanor convictions used as priors were obtained in violation of the right to counsel.  The COA held that Mr. Jones had presented a sufficient record that the district court should have held an evidentiary hearing:
the documents that Jones attached to his motion to correct an illegal sentence are consistent with Jones' allegations that he was without counsel at his plea and sentencing hearings. For example, the disposition sheet for 92 CM 2202 indicates on a preprinted space for “Defense Att'y” that “C. O'Hara” entered an appearance on March 11, 1992. But there is no way to conclusively tell from the disposition sheet whether Mr. O'Hara was present for Jones' plea hearing on October 7, 1992, or at Jones' sentencing hearing, which the record indicates did not take place until almost 5 years later. Moreover, the Wichita Municipal Court “Records Check” also attached to Jones' motion lists an “N”—presumably meaning “No”—under the column titled “Attorney.” This offers additional support for Jones' allegations that Mr. O'Hara was not present at the plea or sentencing hearing dates that are handwritten on that form.
The only potentially distinguishing fact found in this case is that unlike Neal, Jones did not swear to the allegations in his motion—a fact frequently referred to by our Supreme Court in Neal.  But Jones did not simply rely on a silent record, he did specifically state in his motion that he was, in fact, not represented at the hearings and, although not sworn, his signature was notarized. In addition, Jones attached evidentiary support for his allegations to his motion: the records check and the municipal court disposition sheet. The State did not dispute the accuracy or validity of these documents. Thus, this case is more like Neal than the cases cited in Neal that found the defendants had not met their burden of proof to require an evidentiary hearing because those defendants had offered no evidentiary support for their conclusory allegations in their motions to correct illegal sentences.
My experience leads me to believe this is a frequently overlooked issue.  Practitioners (both at trial and on appeal) should be sure to review the PSI and if there are misdemeanors that effect a client's criminal history (especially municipal convictions), further investigation is required.  The KSC has made it clear that the burden is on the state to prove counsel or a valid waiver (blogged about here) and a lot of municipal court documentation is not going to meet that burden.

[Update: the state did not file a PR and the mandate issued on December 20, 2012.]

Kansas' insanity law lives on

The U.S. Supreme Court denied certiorari this morning in Delling v. Idaho, a case that questioned whether it was constitutional under the Eighth and Fourteen Amendments for a state to not have an insanity defense.  The cert petition pointed out that only five states do not have an insanity defense - Kansas is one of those states.

It should be noted that Justice Breyer, Justice Ginsburg, and Justice Sotomayor all dissented from denial of certiorari.  One more vote, and the issue would have been before the Court.

This is an issue that arises often in Kansas.  Defendants often cannot appreciate the wrongfulness of their conduct (making them legally insane under the M’Naghten test).  But they are still prosecuted and convicted in Kansas because they were able to form the intent to commit a crime (e.g. - if they hallucinate a situation that requires self-defense - they could not appreciate the wrongfulness of their conduct, but they could still form the intent to kill or batter).  See State v. Bethel, 66 P.3d 840 (Kan. 2003), cert. denied, 540 U.S. 1006 (2003).  Thus, this is an issue that is ripe for litigation.

If you can show that a defendant is not sane under the M’Naghten test, but who still was able to form the applicable mens rea, make your record.  File a motion to dismiss arguing that that Kansas' failure to use the M’Naghten test violates the Eighth and Fourteen Amendments.  The legal argument is included right there in Delling's cert petition, and it is just as applicable to Kansas defendants as it was to Idaho defendants.  It may be your case that gets that fourth vote.

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.]

Thursday, November 15, 2012

Now blogging from Muskogee

Almost three years ago, Randall announced on this blog that I had left the ADO to "hang my shingle" in Lawrence.  I have now taken down that shingle... or whatever is the appropriate metaphor.  I recently accepted a position as the Research and Writing Specialist for the Federal Public Defender in Muskogee, Oklahoma.  I will handle most of the appeals out of the Eastern District of Oklahoma and do some work for the Northern District as well.  Hopefully, this means that I will have a little more insight on federal issues that affect Kansas defenders, even if I myself am no longer defending from inside the state of Kansas.

Although I haven't been very active blogging recently, I hope to change that with the new position.  I now do not have to worry about billable hours, marketing, vouchers, or fighting with BIDS over experts.  I get to focus on the law.  And I hope that translates into more blogging about interesting legal issues and new cases that affect Kansas defenders.  

Short list for COA

Here is a press release announcing that Steven J. Obermeier, Senior Deputy District Attorney in Johnson County; Judge Kim R. Schroeder, a Hugoton district court judge; and Teresa L. Watson, a Topeka attorney in private practice were nominated by the Supreme Court Nominating Commission for the vacancy on the COA to be created by the retirement of Judge Marquardt.  The Governor has 60 days to appoint one of these three to the COA.

Sunday, November 11, 2012

Violation of wiretap law requires suppression

Jeb C. Griebat and Carl Folsom, III won in State v. Bruce, No. 105,884 (Kan. Nov. 2, 2012), affirming Judge Brazil's suppression order.  The district court had suppressed evidence obtained as a result of a violation of the federal wiretap law due to improper delegation of authority from the Attorney General.  The state conceded that the violation of the wiretap law and that the violation was of a central provision of the statutory provision.  But the state argued that suppression was not an appropriate remedy for the violation.  The KSC reviewed wiretap law, including its explicit suppression remedy, and disagreed:
Our usual practice is to apply the letter of clear statutes without grafting new, court-created rules onto them to rescue violators. "'A statute should not be read to add something that is not found in the plain words used by the legislature . . . .'" "'When a statute is plain and unambiguous, we must give effect to the legislature's intention as expressed, rather than determine what the law should or should not be.'" We acknowledge that other courts have not shared our reticence about legislating. But the sensitive area of wiretaps seems an especially poor environment for judicial policy making. We thus maintain the position of our earlier cases: When there is a violation of a central provision of the wiretap statutes, exclusion is required by both the federal and state statutes. 18 U.S.C. § 2518(10)(a)(i); K.S.A. 2011 Supp. 22-2516(9)(a).
This ultimate holding eschewing harmlessness analysis implicitly rejects the State's subsidiary argument that the specific procedures and delegation document used here would have met the standard for application of a court-created exception to suppression.
[Update: the state moved to stay the mandate on November 14, 2012.]

[Further update: the state moved for rehearing on November 26, 2012.]

[Further update: the KSC denied the state's motion for rehearing on December 11, 2012 and the mandate issued on December 11, 2012.]


Sunday, November 04, 2012

Cumulative error requires new trial

Korey A. Kaul won in State v. Burns, No. 103,088 (Kan. Oct. 26, 2012), obtaining a new trial in a Wyandotte County aggravated criminal sodomy prosecution.  The KSC found several errors, none of which by themselves required reversal. 

First, during deliberations, the jury asked a question.  This is the district court's description and response:
We are in receipt of another question from the jury. And I will quote this into the record: Can we get clarification from Judge on Count 2 and Count 6? 

When I received that, I sent this message back with the bailiff: Can you be more specific on what you want? They came back then with this question: In comparison to Count 1, is Count 2 meaning the crime happened multiple times? In comparison to Count 5, is Count—they crossed it out, but I think they mean Count 6—meaning the crime happened multiple times?

The accurate answer to their question is, I believe: Yes, comma, it happened more than once, period. That's how I propose to answer both questions.
The KSC held that this response was error:
The more compelling argument is whether the judge improperly answered the jury question and as a result improperly injected himself into the jury deliberations. This question is reviewed under the more lenient abuse of discretion standard. But even under that standard, a judge should not answer a jury question by concluding that the crime happened on more than one occasion, especially when the defendant is charged with multiple counts of the crimes.
The state conceded and the KSC also held that the prosecutor improperly argued suggesting that the jury tell the complaining witnesses that "they did the right thing."

Finally, the KSC reiterated its prior case law holding that a jury instruction indicating that a hung jury would be a burden on both sides was not a correct statement of law.

Although none of these errors separately required reversal, the KSC held that the cumulative effect of the errors did:
These errors occurred in close temporal proximity, playing off one another to deny Burns his right to a fair trial. The jury was first improperly instructed with the inaccurate and misleading language used in the Allen-type instruction. Immediately thereafter, the prosecutor improperly appealed to the emotions of the jurors, asking them to protect the child victims by supporting their version of the events. Finally, the judge compounded these errors by responding to a jury question by informing the jury that the abuse had happened more than once. The interrelationship of these errors significantly increases their effect. We conclude that there is a reasonable probability that the cumulative errors affected the verdict.
As a result, Mr. Burns received a new trial.

Friday, November 02, 2012

Park bench is not a new residence

Meryl Carver-Allmond won in State v. LeClair, No. 101,201 (Oct. 26, 2012), reversing a Saline County failure to register conviction.  Mr. LeClair, who was required to register within 10 days of changing his residence, "left his Salina residence on June 1, 2007. He then traveled the southwest United States for approximately 3 weeks before settling in Las Vegas, Nevada, and registering as an offender on July 9." Mr. LeClair argued that he had not established a new residence during that period and, therefore, was not required to notify the sheriff.  The KSC agreed:
There is no inconsistency or repugnancy because the statute distinctly requires that once the offender "changes the address of the person's residence," the offender must register within 10 days of obtaining "the new address" of residence. (Emphasis added.) K.S.A. 22-2904(b). So we must reject the State's contention at oral argument that LeClair's "address of residence" could be a one-night stay on a park bench. Among other things, it is difficult to imagine how under 22-4904(b) an offender should inform law enforcement of his "new [residential] address" as a "park bench in Albuquerque." And it is equally difficult to imagine how that park bench for one night establishes a "change [in] the address of the person's residence." Consequently, we conclude that under K.S.A. 22-4904(b), an offender does not change the address of residence until obtaining a new place of habitation where the person intends to remain. This conclusion necessarily rejects the panel's holding that under this statute an address of residence simply means one's bodily presence at a location.

Given this construction of the statute, and given the unrefuted evidence that Mr. LeClair had not established a new residence, the KSC reversed the conviction due to insufficient evidence.