Saturday, December 29, 2012

January 2013 KSC Docket

Here are the criminal cases on the KSC docket for January 28-31, 2013.  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.

January 28--Monday--a.m.

State v. Jonell Lloyd, No. 104,392 (Sedgwick)
Direct appeal; First-degree murder (premeditated)
Debra J. Wilson
  1. Insufficient evidence
  2. Failure to exclude witness' involuntary statement
  3. Improper prior bad act evidence
State v. David Stevenson, No. 103,508 (Gove)
Direct appeal; First-degree murder (premeditated)
Ryan J. Eddinger
[Affirmed; Luckert; April 12, 2013]
  1. Failure to provide reasonable doubt instruction
  2. Prosecutorial misconduct during voir dire
  3. Improper burden of proof instruction

January 29--Tuesday--a.m.

State v. Miguel Garcia, No. 104,998 (Shawnee)
Direct appeal; First-degree felony murder
Debra J. Wilson
[Rvd/rmd; Johnson; April 26, 2013]
  1. Denial of motion to suppress statements
  2. Improper rebuttal evidence
  3. Gruesome photographs
State v. Michael Hensley, No. 102,055 (Saline)
Direct appeal (petition for review); No tax stamp
Randall L. Hodgkinson
  1. Failure to compel production of witness
  2. Insufficient search warrant affidavit
  3. Possession of marijuana as lesser of no tax stamp
State v. Eric Ochs, No. 104,710 (Douglas)
Direct appeal; Rape
Joanna Labastida
  1. Prosecutorial misconduct
  2. Cruel and unusual punishment

January 30--Wednesday--a.m.

State v. Ryan Cox, No. 103,674 (Labette)
Direct appeal; Agg crim sodomy
Rebecca L. Kurz
[Rvd/rmd; Beier; June 21, 2013]
  1. Public Trial Clause violation
  2. Improper exclusion of third party statement
  3. Failure to give character evidence instruction
 State v. James Qualls, No. 104,504 (Shawnee)
Direct appeal; First-degree murder (premeditated)
Charles S. Scott, Jr.
[Rvd/Rmd; Biles; April 12, 2013]
  1. Failure to give lesser for voluntary manslaughter
  2. Insufficient evidence

January 31--Thursday--a.m.

State v. Melissa Wells, No. 104,092 (Montgomery)
Direct appeal; First-degree felony murder
Michelle A. Davis
[Aff/Vac; Beier; June 28, 2013]
  1. Failure to give lesser of felony murder (Berry)
  2. Failure to give prior bad act limiting instruction
  3. Prosecutorial misconduct
  4. Failure to appoint substitute counsel
  5. Alternative means (felony murder)
  6. Improper exclusion of defense evidence

Friday, December 28, 2012

Does Carachuri-Rosendo overrule U.S. v. Hill?

A few years ago, in United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), the Tenth Circuit grappled with 18 U.S.C. 922(g) and whether a prior Kansas crime was "a crime punishable by imprisonment for a term exceeding one year," under 18 U.S.C. § 922(g)(1), when the Kansas guideline range applicable to the person was, at the top end, less than or equal to one year.  Ultimately, the court ruled that defendant's prior Kansas conviction constituted a qualifying felony required to support his federal conviction for "felon in possession of a firearm" because the maximum possible sentence, with the highest possible criminal history (criminal history A), could have taken the sentence to a term of more than one year.

The Hill decision was significant because it made many Kansas defendants who had been convicted of low-level state felonies prohibited persons under 18 U.S.C. § 922(g)(1).  For example, Hill had committed a severity level 8 felony in Kansas, and the presumptive guidelines range for his offense was 9 to 11 months.  But he was considered a felon under 18 U.S.C. § 922(g)(1), and thus prohibited from possessing a gun or ammunition, because his conviction could have been "a crime punishable by imprisonment for a term exceeding one year" - if his criminal history had been worse.

The opinion in Hill had a great impact on federal defendants, as there are several federal statutes that use similar language requiring a prior conviction or sentence to have been for a "a crime punishable by imprisonment for a term exceeding one year."  See, e.g., 18 U.S.C. § 922(g)(1); 18 U.S.C. § 924(e); 21 U.S.C. § 841; 21 U.S.C. § 802(44); U.S.S.G. § 2K2.1, U.S.S.G. § 4B1.1; U.S.S.G. § 4B1.2.

The Hill opinion (and the earlier opinion - before the court flip-flopped) was blogged about here, here, and here by the Kansas Federal Defender blog.  The original opinion was also discussed here by this blog.

The court held that United States v. Rodriquez, 553 U.S. 377 (2008) (discussing similar language in 18 U.S.C. § 924[e]) controlled and that the U.S. Supreme Court mandated that the analysis should focus on the maximum possible sentence for the predicate crime of conviction and not the maximum sentence for a particular offender based on their criminal history.  The Hill court also relied upon the Fourth Circuit's decision in United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).


Is Hill still good law?

 In Carachuri–Rosendo v. Holder, 130 S. Ct. 2577 (2010), the U.S. Supreme Court clarified the definition of "aggravated felony" for immigration purposes (if someone has a prior conviction for an aggravated felony, they are automatically deported).  8 U.S.C. § 1101(a)(43)(B) defines that term to include, inter alia, “illicit trafficking in a controlled substance . . . including a drug trafficking crime” as defined in 18 U.S.C. § 924(c), which, in turn, defines a “drug trafficking crime” as a “felony punishable under,” inter alia, “the Controlled Substances Act (21 U.S.C. 801 et seq.)."  For purposes of this analysis, a felony is a crime for which the “maximum term of imprisonment authorized” is “more than one year.”  18 U.S.C. § 3559(a).

Carachuri–Rosendo held that that a second or subsequent conviction on a simple drug possession charge is not an "aggravated felony" for purposes of the Immigration and Nationality Act (INA) when the state conviction is not based on the fact of a prior conviction.  In other words, the government cannot rely on a state misdemeanor drug possession conviction as an aggravated felony simply because the offense could have been charged as a felony.  Here is analysis of the case from Scotusblog.

In United States v. Haltiwanger, 637 F.3d 881, 883 (8th Cir. 2011), the Eighth Circuit used the holding in Carachuri–Rosendo and the earlier holding in Rodriquez to determine whether a prior Kansas a drug tax stamp conviction qualifies as a felony under 21 U.S.C. § 841(b)(1):
After reconsidering our decision in light of Carachuri–Rosendo, we now believe the magistrate judge's analysis of the Rodriquez decision was sound. Because the Kansas sentencing structure links maximum terms of imprisonment directly to a particular defendant's recidivism (or lack thereof), we believe Carachuri–Rosendo and Rodriquez require us to take into account the seven-month cap on Haltiwanger's individual sentence when determining whether the tax stamp conviction qualifies as a felony under 21 U.S.C. § 841(b)(1).
The court went further:
Thus, where a maximum term of imprisonment of more than one year is directly tied to recidivism, Carachuri–Rosendo and Rodriquez require that an actual recidivist finding—rather than the mere possibility of a recidivist finding—must be part of a particular defendant's record of conviction for the conviction to qualify as a felony.
Haltiwanger, 637 F.3d at 884.  The Eighth Circuit's decision in Haltiwanger seems to be in direct conflict with the Tenth Circuit's holding in Hill, even though Hill dealt with 18 U.S.C. § 922(g)(1) instead of 21 U.S.C. § 841(b)(1).  

The Fourth Circuit recently made a similar holding in U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011).  Simmons held that government could not rely on a hypothetical criminal history enhancement or hypothetical aggravating factors to set the maximum term of imprisonment for a state prior conviction under Controlled Substances Act (CSA).  The court relied favorably upon Haltiwanger, in which the Eighth Circuit made a similar holding regarding the Kansas Sentencing Guidelines. The court also overruled its earlier decision in Harp, which was relied upon by the Tenth Circuit in Hill.

Although Hill was not discussed by the Fourth Circuit in Simmons or by the Eighth Circuit in Haltiwanger, it appears that both circuits believe that the Supreme Court's decisions in Carachuri–Rosendo and Rodriquez require a different outcome than that reached in Hill.  For example, the Fourth Circuit has specifically applied the holding in Simmons to cases involving 18 U.S.C. § 922(g)(1).  See United States v. Ross, 447 F. App'x 493 (4th Cir. 2011) (unpublished).  The Fourth Circuit's view of Carachuri–Rosendo and Rodriquez is directly contrary to the Tenth Circuit's opinion in Hill.

Thus, it seems that at least two circuit courts believe that the U.S. Supreme Court's decisions in Carachuri–Rosendo and Rodriquez require a different outcome than that reached by the Tenth Circuit in Hill.  One might say that this is simply a circuit split on whether hypothetical criminal history can be used to determine whether a prior state conviction is "a crime punishable by imprisonment for a term exceeding one year" for purposes of 18 U.S.C. § 922(g)(1).  But the case law, post-Carachuri–Rosendo, seems be pretty clear that Hill would not survive Carachuri–Rosendo.

The impact - if U.S. v. Hill were to be overturned.

In the Fourth Circuit, the impact of Simmons has been huge.  There are estimates that thousands of convicted felons, under North Carolina law, are no longer considered prohibited persons under 18 U.S.C. § 922(g)(1).  In Kansas, the result would likely be the same, as Kansas' sentencing guidelines are very similar to North Carolina's.  As stated above, the language used in  18 U.S.C. § 922(g)(1) making a felony "a crime punishable by imprisonment for a term exceeding one year," is used many times in federal law.  For a detailed analysis of how the overturning of Hill could impact federal defendants, I suggest reading Melody Evan's blog post on the original Hill decision.  As she stated at the time, "Go back and look at the state court judgment on your client's prior Kansas conviction, see what that sentencing box says. It could make a world of difference, from a lesser sentence to an outright defeat of a felon-in-possession charge."







Thought police not needed

Michelle A. Davis won in State v. Ta, No. 104,241 (Kan. Dec. 28, 2012), reversing a Sedgwick County two aggravated indecent liberties convictions.  The case involved some objectively innocent touching of a couple of young girls although evidence was also presented of improper intent.  The question was whether innocent touching with improper intent constituted lewd fondling or touching.  The KSC reviewed its prior case law and clarified that it did not:
On close reading of the Wells decision, we conclude the Wells court mislabeled its summary as a definition of one element of the crime of indecent liberties with a child—the element of a "lewd fondling or touching"—when the court was actually restating both elements of the crime in commonly understood terms. This mislabeling is made apparent by a reading of the Wells court's prior discussion of the definition of "lewd" because in that more expanded discussion the court defined the criminal act element by looking at the definition of lewd and determining the element was aimed at an act that tends to undermine the morals of the child and which is so clearly offensive as to outrage the moral senses of a reasonable person. Intent was not a part of the discussion. Subsequent decisions of this court verify that the focus must be on the nature of the act.
The KSC went on to clarify that improper intent must be coupled with an improper act:
Here, the trial judge's findings similarly collapsed the two elements into one, and the State perpetuates this error on appeal by arguing the strong evidence of intent is proof Ta's acts were lewd. This interpretation of the law reverts to the crime found to be unconstitutionally vague in Conley; it makes any fondling or touching a violation of the statute as long as the act is performed with a lewd intent. To avoid this constitutional infirmity, there must be evidence that the act was lewd, and this element should not be dependent upon the subjective intent of a defendant.
To hold otherwise would allow punishment for impure, criminal thoughts, and it is a fundamental principle that "the law does not punish criminal thoughts." United States v. Shabani, 513 U.S. 10, 16, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994); see [United States v. Apfelbaum, 445 U.S. 115, 131 n. 13, 100 S. Ct. 948, 63 L. Ed. 2d 250 (1980)] (observing that Shakespeare had expressed sound legal doctrine when he wrote a person's "'acts did not o'ertake his bad intent;/And must be buried but as an intent/That perish'd by the way: thoughts are no subjects,/Intents but merely thoughts.' Measure for Measure, Act V, Scene 1; G. Williams, Criminal Law, The General Part 1 [2d ed. 1961.]"). Both a criminal act, an actus reus, and a culpable mental state, a mens rea, are required for the offense to occur.
In summary, a defendant's mental state should not be used to define or determine whether a touching is lewd. We, therefore, clarify Wells and hold that whether a touching is lewd should be determined by considering the common meaning of the term "lewd," that is whether a touching is "sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; indecent, obscene, or salacious."
Although the KSC agreed that the touching in the instant case, although awkward, was not lewd.  As a result, the convictions are reversed.  Apparently (and thankfully), we won't be hiring thought police any time soon.

Right to conflict-free counsel at probation revocation

Carl Folsom, III and Carol Longenecker Schmidt won in State v. Galaviz, No. 101,084 (Kan. Dec. 28, 2012), obtaining a new probation revocation hearing in a Ford County aggravated indecent liberties prosecution.  The KSC reviewed several SCOTUS cases and its own cases and concluded that there is a constitutitonal right to conflict-free counsel at a probation violation hearing:
These authorities lead us to conclude a Kansas criminal defendant has a constitutional right to effective assistance of counsel in a probation revocation proceeding under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This right includes the right to conflict-free counsel. Even though the source of this right is not the Sixth Amendment to the United States Constitution, cases applying the effective assistance of counsel guarantee of the Sixth Amendment can be used to analyze Fourteenth Amendment ineffective assistance of counsel claims because the governing principles and policies are coextensive. Consequently, Galaviz was justified in relying on Sixth Amendment cases. Hence, although we consider Galaviz' right to conflict-free counsel to arise under the Fourteenth Amendment rather than the Sixth Amendment, we conclude he is entitled to relief if he can meet his burden.
The KSC went on to overrule previous Kansas caselaw that persons who are provided conflicted counsel are entitled to automatic reversal absent an objection, but held that Mr. Galaviz should get a new hearing because the record was insufficient to establish that he was not entitled to relief, particularly where the prejudice was the waiver of an evidentiary hearing:
Certainly, if we were to apply Strickland's prejudice test, we would conclude that Galaviz' admission to the violations most likely did not change the outcome of the proceeding.
But that is not our test. Here the question is whether Cowell's active conflict of interest had an adverse effect on his representation. Ultimately, it may be that the answer is that it did not and that it was the new convictions that influenced the decision to admit to the alleged probation violations. However, the record before us does not provide any information regarding the reasons the strategy was changed. Further, Galaviz had a right to insist on an evidentiary hearing even if it was likely, or even virtually certain, that he would not prevail. Cf. Kargus v. State, 284 Kan. 908, 924-25, 169 P.3d 307 (2007) (noting distinction between attorney's performance denying defendant a fair proceeding, where Strickland presumption of reliability applies, and depriving defendant of a right to a proceeding, where presumption cannot apply because proceeding did not occur). In other words, we disagree with the Court of Appeals' conclusion that the record on appeal is adequate to allow us to assess this or the other allegations of adverse performance that Galaviz has asserted. As the United States Supreme Court stated in Wood, we are unable to "be sure whether counsel was influenced in his basic strategic decision by the [conflicting] interests . . . ."
Because the record was not sufficient, the KSC remanded for further proceedings.

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.]

Tuesday, December 18, 2012

Can't require evidentiary breath test without arrest for alcohol related offense

The KSC issued a couple of decisions related to K.S.A. 8-1001 and when officers can require a driver to take an evidentiary breath test.  In Sloop v. KDOR, No. 103,334 (Kan. Dec. 14, 2012), Kenneth B. Miller won reinstatement of driving privileges in a Shawnee County administrative action.  In Shrader v. KDOR, No. 103,176 (Kan. Dec. 14, 2012), Daniel C. Walter won reinstatement of driving privileges in a Decatur County administrative action. 

K.S.A. 8-1001 provides that officers can require a driver to take an evidentiary breath test in the following circumstances:
the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both . . . and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, . . . in violation of a state statute or a city ordinance . . .
The question in Sloop was whether a valid arrest was a predicate to such a demand.  The question in Shrader was whether the arrest had to be for a DUI offense.  The KSC answered each case in favor of the driver.  In Shrader, the KSC held that while the officer had reasonable suspicion to detain, he lacked probable case to arrest:
We conclude the officer's statutory authority to request Sloop to take the breath test depends upon a valid arrest. We additionally conclude the arrest was invalid because the officer had no probable cause to support it. And we further conclude Sloop's refusal to take a breath test the officer had no statutory authority to request cannot be the basis for suspending his driving privileges under K.S.A. 2008 Supp. 8-1014(a)(1).
In Shrader, the KSC overruled previous COA caselaw that stood for the proposition that arrest for any offense would trigger the mandatory evidentiary breath test:
The Counseller panel's interpretation of this same phrase—that the mandatory condition is instead an "arrest arising out of the operation of a vehicle for any offense in violation of a state statute or a city ordinance"—ignores the statute's plain language. More specifically, it reads the limiting language out of the statute.
This interpretation may have reflected the Counseller panel's conclusion that the district court's reading of K.S.A. 1995 Supp. 8-1001(b)(1) ("the person has been arrested . . . for any offense involving operation . . . of a vehicle while under the influence") was redundant with the condition mentioned earlier in subsection (b). More specifically, that condition in subsection (b) somewhat similarly states that "the officer has reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol."
We not only conclude that the Counseller panel was wrong to disregard the plain language of 8-1001(b)(1), but we also conclude that the two provisions—(b) and (b)(1)— can peacefully coexist. Redundancy, if any, is legislatively purposeful. Simply put, under K.S.A. 8-1001(b), if (1) the officer believes the person is operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, and (2) the officer arrests the person for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, then (3) the officer becomes authorized to request the test.
As an aside the KSC noted its recent rule change that letters of additional authority must be filed at least 14 days before argument.  In the Shrader decsion, the KSC chastised the KDOR for filing a letter the day before argument.  Appellate practioners would be wise to review their cases well before that deadline if argument is approaching!

Here is coverage of the cases in the Topeka Capital-Journal.

Wednesday, December 12, 2012

Seventh Cicuit applies right to bear arms outside the home

In Moore v. Madigan, No. 12-1269 (7th Cir. Dec. 11, 2012), the Seventh Circuit ruled yesterday that the individual right to bear arms extends beyond the home.  In doing so, the court struck down Illinois' outright ban on the concealed carry of firearms.  This is an issue that has not been directly decided by the U.S. Supreme Court, but which might be next up this developing area of the law.  Here is an article on the case by the Chicago Sun-Times. 

The Kansas Court of Appeals similarly addressed an outright ban on concealed carry of firearms in State v. Knight, 44 Kan. App. 2d 666 (2010).  In that case, I argued that the pre-2007 ban on concealed handguns (before the Kansas Legislature passed its concealed carry law) violated the Second Amendment based on District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment creates an individual right to possess firearms for self-defense).  I also made a similar argument under the former and current language in Section 4 of the Kansas Constitution Bill of Rights, which was amended in 2010.  The court ultimately ruled that Heller did not confer an individual right to carry a concealed firearm outside the home. 

In  Moore, the Seventh Circuit held just the opposite, stating "The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside."  Thus, there is now a split of authority between Kansas and the Seventh Circuit on the important issue of whether the individual right to bear arms extends beyond the home.

On a first glance, it might not seem like this case has much importance in Kansas.  After all, Kansas has a concealed carry law for handguns, and Illinois is the only state that does not.  But K.S.A. 21-6302 still makes it unlawful to carry other concealed weapons outside the home, even when they are for self-defense.  And there is no exception in the statute for any concealed carry license of a knife or other similar weapon.  A ruling by the U.S. Supreme Court that the right to bear arms extends beyond the home would make K.S.A. 21-6302 mostly unconstitutional (because "arms" does not just mean "guns").  In addition, Kansans are regularly stopped by the police because there was a report of a gun or weapon being sighted.  If the right to bear arms is applied outside the home, there will be an even stronger argument that an investigatory detention based on a report of a weapon being sighted is not based on reasonable suspicion that a crime has been committed.

Its also important to remember that the Second Amendment issue does not even take into account the new language of Section 4 of the Kansas Constitution Bill of Rights, which was amended in 2010.  The section now states in part, "A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose. . . ."  The Kansas Supreme Court denied the final petition for review in Knight, which asked for this new amendment to apply to the prior ban on concealed carry of firearms.  But the Kansas Constitution could ultimately trump any ruling by the U.S. Supreme Court on the matter.  Even if the U.S. Supreme Court says that the right to bear arms for self-defense does not apply beyond the home (an extremely unlikely ruling in my opinion, based on what they have already said), the Kansas Constitution uses different language than the Second Amendment, and there should be some meaning given to this difference.    

Sunday, December 09, 2012

Rare Habeas win in COA

Dan Monnat won in In re Weimer, No. 106,862 (Kan. App. Nov. 30, 2012) (unpublished), an original habeas action in the Court of Appeals challenging a Labette County prosecution for aggravated indecent liberties with a child based on lewd fondling or touching.  Ultimately, the court granted the writ and ordered the district court to dismiss the charge of aggravated indecent liberties with a child - lewd fondling or touching based on the doctrine of collateral estoppel.

The Court of Appeals explained the procedural history of the case as follows:
In this original action for a writ of habeas corpus, Brian Weimer asserts that the State's prosecution of aggravated indecent liberties with a child is barred by double jeopardy protections. In a previous trial that included other charges, Weimer was charged with aggravated indecent liberties with a child based on sexual intercourse, but the jury was instructed on aggravated indecent liberties with a child based on lewd fondling or touching. Weimer was convicted of one count of rape and one count of aggravated indecent liberties with a child, but the conviction was overturned based on ineffective assistance of trial counsel. On remand, the State amended the complaint to include one charge of rape and one charge of aggravated indecent liberties with a child based on lewd fondling or touching. Weimer moved to dismiss the amended charge of aggravated indecent liberties with a child, but the district court denied the motion.

Weimer then filed this original action for a writ of habeas corpus, claiming that he was being wrongfully detained on the charge of aggravated indecent liberties with a child. This court has jurisdiction to hear Weimer's original petition for a writ of habeas corpus under K.S.A. 60–1501(a). This court initially denied Weimer's petition on the ground that it was interlocutory in nature, but Weimer petitioned for review, and our Supreme Court remanded to this court for consideration on the merits. Weimer now asserts that his prosecution on the amended charge of aggravated indecent liberties with a child based on lewd fondling or touching is barred by the compulsory joinder rule. We agree. Thus, we grant Weimer's petition for a writ of habeas corpus and direct the district court to dismiss the amended charge of aggravated indecent liberties with a child.
The State actually conceded that the elements of collateral estoppel were met with the charge of aggravated indecent liberties with a child based on lewd fondling or touching.  But the State argued that the court should treat the issue as if there had been a defective complaint.  The court rejected this argument.  The State made other unsuccessful arguments that Weimer had actually been charged with aggravated indecent liberties with a child - lewd fondling or touching, based on the statutory citation to the correct offense in the complaint, and the State argued alternatively that the district court had "amended" the complaint at trial by instructing the jury on aggravated indecent liberties with a child based on lewd fondling or touching.

Rejecting the State's arguments, the court concluded:
Because all the required elements of the compulsory joinder doctrine are met, this court finds that the State's prosecution of aggravated indecent liberties with a child based on lewd fondling or touching is barred by double jeopardy. Accordingly, this court grants Weimer's petition for a writ of habeas corpus and directs the district court to dismiss count two of the third amended complaint charging Weimer with aggravated indecent liberties with a child. Nothing in this opinion shall be construed to prohibit the State from prosecuting the charge of rape against Weimer.
Judge Bruns filed a dissenting opinion.  He explained, "I do not agree that an original action in habeas corpus is an appropriate vehicle to challenge one count of a multiple count complaint containing other valid charges. Furthermore, I fear that the holding in this case unnecessarily expands the parameters of habeas corpus and encourages criminal defendants to abuse this extraordinary remedy." 

Based on Judge Bruns' dissent, and the unusual procedural history of the case, it is somewhat surprising that the opinion was not published.  But this just serves as a reminder that there are other procedural avenues available to defendants rather than waiting around and having to go through the time and expense of a trial.  Although it should be noted that Weimer filed his habeas action in October of 2011 and did not receive a decision until November 30, 2012.

Friday, December 07, 2012

Search exceeded scope of stop

Meryl Carver-Allmond won  in State v. Spagnola, No. 101,521 (Kan. Dec. 7, 2012), reversing a Shawnee County possession conviction.  The KSC first rejected the COA's rationale that Mr. Spagnola had failed to preserve this issue when he had repeatedly objected immediately before a bench trial before the same judge that heard the suppression hearing.  Under these circumstances, the KSC held that a party need not object again at the bench trial to preserve the issue.

On the merits, the KSC held that the stop and intial detention was lawful, but that the search exceeded the scope of that proper stop and detention:
Although the initial stop was predicated on a traffic violation, the detention continued less out of a concern about impaired driving and increasingly out of a concern about stolen property. The possible stolen property was in the backseat of Spagnola's car, not on his person. The only justification for the pocket search was for Jones' safety. 
Under the United States Constitution, Jones was allowed to conduct a pat-down search of Spagnola's clothing. In the course of an investigatory detention, a police officer may conduct a pat-down search for weapons that might pose a danger to the officer.  In order to justify a pat-down search of a driver or a passenger during a traffic stop, the police officer must harbor reasonable suspicion that the person subjected to the search is armed and dangerous.  A warrantless Terry stop is permissible under the Fourth Amendment because of its limited nature and because of the officer's narrow scope of authority.
There was no reason, however, for Jones to expand the pat-down search. Such a search exceeds the narrowly crafted exception that Terry created for the purpose of police protection. 
During a Terry stop, a police officer may conduct a pat-down search only when nothing in the initial stages of the encounter dispels his or her reasonable fear for his or her own or others' safety. In such an instance, the officer may conduct a "carefully limited search of the outer clothing" to determine whether the individual has weapons that might be used against the officer.
"In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest."  Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). 
The protections of the Fourth Amendment are not diluted when legitimate law enforcement interests justify a warrantless search; the search must still be limited in scope to whatever is justified by the exception to the constitutional requirement of a warrant."[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." (Emphasis added.) Royer, 460 U.S. at 500.
The KSC also held that the circumstances of this case failed to show consent to search without coercion:
Spagnola was standing outside of his car in the presence of more than one police officer, one of whom had arrived as backup support. When Spagnola gave his second permission for the search, he was standing with his back to the officers, with his hands behind his back and his fingers interlaced. This was not a posture or an environment in which it can be said that consent was voluntarily given free from coercion.
As a result, the KSC reversed the conviction and ordered suppression.

Registration exception applies if any manufacture for personal use

Lydia Krebs won in State v. Mishmash, No. 103,158 (Kan. Dec. 7, 2012), vacating the offender registration requirement in this Crawford County manufacture prosecution.  The question in the case was whether Mr. Mishmash had to register as a drug offender.  The statute required persons convicted of manufacture to register unless the district court found that the manufacture was for personal use.  The record showed that Mr. Mishmash manufactured for personal use but also gave some to another person.  The state argued that this distribution showed that Mr. Mishmash had not manufactured solely for personal use.  Mr. Mishmash argued that the word solely isn't in the statute and that the record clearly showed that he did manufacture for personal use.  The KSC agreed that it should not put words in the statute:
Under the State's reading of the phrase "personal use," a business that provides computers to its employees and informs them that they may use the computers for personal use would be denying the employees the opportunity to utilize the computers in a professional capacity. A company that provides a car to a traveling salesperson with the explanation that the car may be put to personal use would deny the salesperson the use of the car for sales purposes. Farmers who have marketing agreements to sell part of their crop and retain part of that crop for personal use would not be permitted to feed their families with the retained portion. These situational absurdities illustrate that the words "solely" or "exclusively" are not implicit in the phrase "personal use."
As a result, the KSC vacated the registration requirement.

And, as Carl has noted, another important part of this decision for upcoming KORA/Ex Post Facto Clause cases is the KSC's own description of the registration requirement:
The district court used this finding to deny him the statutory exemption from offender registration. In doing so, the district court improperly added language to the statute that the legislature elected to omit. We therefore vacate that portion of the sentence requiring Mishmash to register as a drug offender.
If the registration requirement is a portion of the sentence, the state should not be able to impose it in other cases retroactively.

Thursday, December 06, 2012

Cert filing on mandatory minimums

As Carl blogged about (here), the SCOTUS has granted cert in a case this term to consider whether facts that increase a mandatory minimum sentence should be proved to a jury beyond a reasonable doubt.  We have been periodically (and unsuccessfully) filing cert petitions on that very issue almost since Apprendi was decided (as blogged about here and here).  In fact, my very first cert petition was filed seeking review of State v. Conley and seeking application of Apprendi to the Kansas hard-50 sentencing scheme.

Here is a recent cert petition that Joanna Labastida and I filed post-Alleyne grant reiterating the Due Process and Jury Trial Clause argument.  If the SCOTUS decides to reverse or modify its caselaw regarding mandatory minimums it could have an impact on Conley too.  So keep objecting at any hard-50 sentencing!

[Update: the SCOTUS requested that the state filed a response to Mr. Astorga's petition.  It is due on February 8, 2013.]

[Further update: here is the state's response.]

[Further update:  on June 24, 2013, the SCOTUS granted a GVR (certiorari granted, judgment vacated, and case remanded).  Carl blogged about this here.]

Circuits continue to split over applying Apprendi to restitution

Last year, the U.S. Supreme Court held in Southern Union v. U.S. that the rule established in Apprendi v. New Jersey – in which the Court held that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) which increases the maximum punishment authorized for a particular crime be proved to a jury beyond a reasonable doubt – applies to the imposition of criminal fines.  

On the issue of restitution, the Seventh Circuit recently joined the minority view (shared by the Eighth and Tenth Circuits) that restitution is civil in nature, and so a jury finding is not required to determine the amount to be paid.  The opinion in U.S. v. Wolfe, No. 11-3281 (7th Cir. 2012) is available here.  But again, that is the minority view.  And this is an issue that should be litigated in Kansas. 

Southern Union's holding has already been used in Kansas to make other Sixth Amendment arguments.  In State v. Urista, KS Appellate Case No. 09-103089-S, Rachel Pickering (one of the the excellent attorneys over at the ADO) recently argued that the Sixth Amendment right to a jury trial was violated when offender registration was ordered based on the the sentencing judge's factual finding that the defendant had committed a felony with a deadly weapon.  Rachel filed a Rule 6.09 letter stating that Southern Union supported her argument (video of the argument is available here).  A decision in the case could come out at any time.

I will leave for another blog post other uses for the holding in Southern Union.  But one could argue that it could be used to challenge things like BIDS fees - after all, the judge has to make a finding that the defendant has an ability to pay, and the requirement to pay is only triggered with a conviction (making it similar to restitution).  But today, there is an active split on whether the right to a jury trial will apply to restitution amounts, and the split currently favors a finding by a jury.