Sunday, April 28, 2013

Failure to give lesser requires new trial

Charles S. Scott, Jr. won in State v. Qualls, No. 104,504 (Kan. April 12, 2013), obtaining a new trial in a Shawnee County first-degree (premeditated) murder prosecution.  Although the KSC rejected Mr. Qualls' claim that evidence of premeditation was insufficient, it agreed that evidence supported giving a voluntary manslaughter instruction as a lesser-included offense:
But the error in the district court's reasoning is not that it refused to believe Beier had his hand at his waist; it is in its application of an objective standard when deciding whether to give the instruction. And the district court stated twice that it was applying an objective standard to resolve that question. 
Under K.S.A. 21-3403(b), voluntary manslaughter requires an intentional killing that is committed with an unreasonable but honest belief that the circumstances justify deadly force to defend against an aggressor's imminent use of unlawful force under K.S.A. 21-3211. And under the voluntary manslaughter theory known as imperfect self-defense recited in K.S.A. 21-3403(b), there is no objective requirement. Therefore, what the district court needed to resolve was whether there was evidence of Qualls' subjective belief that unlawful force was imminent when that evidence is viewed in the light most favorable to Qualls. And as to that, there is no doubt based upon Qualls' testimony that he had a clear view of Beier, saw Beier's hand go to his waist, and "saw an object. I saw something, but I couldn't make it out." Qualls unequivocally testified he believed Beier had a gun, so he shot him.
The majority rebutted the dissent's claims regarding the state of the evidence:
Qualls was entitled to instructions on the law applicable to his defense theory if there was evidence to support that theory, as long as the evidence when viewed in the light most favorable to him was sufficient to justify a rational factfinder finding in accordance with that theory. And this is true even if Qualls' defense theory was only supported by his own testimony.  Patrick's testimony supports Qualls' claim that McDonald was not restraining Beier when the shooting started. And there is no other evidence contradicting Qualls' claim that Beier was coming towards him. The dissent simply does not find Qualls' testimony credible, but there is nothing in the record allowing us to conclude that a rational factfinder could not find in accordance with Qualls' theory. 
Because evidence supported giving the requested lesser-included offense instruction, the KSC reversed and remanded for a new trial.

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

Monday, April 22, 2013

Justice Rosen wants justice in plea agreements

In State v. Jackson, No. 106,184 (Kan. April 12, 2013), the KSC reversed a 310-month sentence in a Jessica's Law case based on the failure of the district court to follow the proper procedures when it departed to a guidelines sentence (Carol Longenecker Schmidt with the win).  The holding is consistent with the court's prior holdings on the subject, but Justice Rosen's concurring opinion in the case is worth a read.  And it is worth consideration by Kansas courts.

As he did in a previous case, Justice Rosen took issue with the current process of criminal defendants entering plea agreements without knowing what their criminal history is going to be at sentencing.  He stated in part in his concurring opinion:
I will simply refer to my concurring opinion in State v. Garcia, 295 Kan. 53, 64, 283 P.3d 165 (2012), and reiterate that, consistent with Kansas law and the heightened constitutional protections demanded in criminal proceedings, we should require a predetermined, accurate criminal history which is to be used at any subsequent sentencing hearing to be part of plea agreements. Not only does this give Jackson and similarly situated defendants the knowledge necessary to effectuate a knowing, voluntary, and intelligent waiver of the right to trial, it recognizes the significance that criminal history plays in the sentencing scheme and completely avoids the problems associated with the criminal history crapshoot currently employed in most plea proceedings. We simply should not continue to legitimize a plea negotiation process that undermines the presumption of fairness and dignity that serves to protect our liberty interests.
These words undoubtedly ring true for any defense attorney (or prosecutor) that has entered a plea agreement, only to see the defendant's criminal history at sentencing be higher than thought at the time of the plea.  This has happened to me.  And it's probably happened to most other attorneys who have handled more than a few felonies (it's also a big problem when PSIs are not completed until a few days before, or even the day of, sentencing - defendants are understandably frustrated not knowing what their sentencing range is going to be until the last minute, and it can cause attorneys to overlook legal objections that they would have caught with more prep time or to seek otherwise unnecessary continuances). 

But Kansas defenders might already possess the tools to make this happen.  The discovery statute, K.S.A. 22-3212, states as follows:
(h) For crimes committed on or after July 1, 1993, the prosecuting attorney shall provide all prior convictions of the defendant known to the prosecuting attorney that would affect the determination of the defendant's criminal history for purposes of sentencing under a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 et seq., prior to their repeal, or the revised Kansas sentencing guidelines act, article 68 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto.
And as we know, K.S.A. 22-3212(f) states that "[d]iscovery under this section must be completed no later than 21 days after arraignment or at such reasonable later time as the court may permit."

In the Garcia concurrence, Justice Rosen pointed out that nothing prohibits courts from ordering the computation of criminal history before the plea agreement:
Following our statutorily derived procedure, a defendant's criminal history score is not calculated until after the defendant has been convicted. K.S.A. 21-4714 [now K.S.A. 21-6814]. This procedure makes some sense for completing a final presentence investigation report (PSI), because the PSI includes the current crime or crimes of conviction. But the delay in calculating the defendant's criminal history score for the purpose of completing a PSI compromises the underlying integrity and principles of fair and equitable justice by requiring defendants to waive their constitutional rights without a basic understanding of the consequences of their actions. This statute does not preclude the calculation of criminal history prior to the plea, nor should it be applied in a manner that supersedes the defendant's constitutional rights.
Consistent with Justice Rosen's concurrence, Kansas defenders should pressure the courts and prosecutors into providing accurate criminal history information prior to plea agreements (after all, K.S.A. 21-6703[b] requires prosecutor offices to assist with the PSI preparation).  Use the discovery statute to get the information from the prosecutor or file a motion asking the court court to order a preliminary PSI prior to any plea agreement.

Additionally, this is a systemic issue that can be addressed with the local courts.  Encourage district courts to adopt rules requiring preliminary PSIs to be conducted prior to a final plea hearing.  As in most things, a little extra preparation and knowledge leading up to an important decision usually makes things go a lot more smoothly.  

Friday, April 19, 2013

"Patently egregious" comments in closing argument warrant new trial

Michelle Davis won in State v. Stimec, No. 103,329 (Kan. April 19, 2013), reversing two Wyandotte County convictions for aggravated indecent liberties with a child.   The court held the prosecutor's statements made during rebuttal closing argument of the jury trial "were so patently egregious and prejudicial as to deny Stimec a fair trial . . . ."

The KSC described the facts of the case as follows:
At trial, the State presented evidence that Stimec's 6-year-old son, J.S., spent every other weekend with Stimec, and when he returned home one weekend, J.S. told his mother he slept naked with Stimec and Stimec and J.S. put lotion on each other, including on each other's private parts.

J.S.'s mother and stepfather reported J.S.'s statements to the police. A forensic examiner interviewed J.S., and a tape of the interview was played at trial. During the interview, J.S. said Stimec frequently rubbed lotion all over J.S. and sometimes J.S. rubbed lotion all over Stimec. J.S. also reported that Stimec sometimes said, "[I]t feels good" and, "Oh yeah," as this conduct was occurring.

Stimec testified he put lotion on his son but never in inappropriate places.  Consistent with this testimony, in closing argument Stimec's counsel suggested "[m]ost people that have kids probably put lotion on them, sunscreen, after a bath, whatever, but for him to put lotion on his son's back after a bath isn't a crime."
The prosecutor made these comments during the State's rebuttal closing argument:
It is not illegal to put lotion on a child's back. It is not illegal to put it on their ankles, knees, shoulders, head, anywhere else. None of that is a crime, absolutely, but it is a crime to stroke your son's penis with lotion. I mean, let's just call it what it is, okay, that's a crime. You know what, feel free to take a poll in the jury room when you go to deliberate, take a poll. If there is one member of this panel who has stroked their son's penis with lotion, then by all means, find that way. I suspect that won't be the case.
The court held that the comments constituted plain error:
[T]he comments were highly improper for several reasons, including that they: (1) appealed to the passions and prejudices of the jury; (2) diverted the jury's attention from the facts of the case, explicitly inviting the jury to consider facts outside the record; (3) implicitly commented on Stimec's credibility; (4) misstated the evidence by suggesting Stimec "stroked" his son's penis when in fact, the victim's statements and testimony did not utilize this phrase; and (5) potentially exposed individual jurors to ridicule by their colleagues, decreasing the likelihood any juror would argue for acquittal. Under these circumstances, we have no hesitancy in concluding the prosecutor's statements were inappropriate and in error.
The court also addressed the argument of the State that these comments were provoked by defense counsel and should be excused.  The court explained (as it had it previous cases) that "defendants do not open the door to prosecutorial misconduct."  The KSC held that the "inappropriate comments in this case went directly to the heart of the issue the jury was asked to decide" and thus were not harmless. 

Wednesday, April 10, 2013

Cannot waive statutory right to counsel without safeguards

Meryl Carver-Allmond won in State v. Lawson, No. 103,509 (Kan. April 5, 2013), obtaining a new trial in a Leavenworth County aggravated criminal sodomy prosecution.  Meryl had to argue this case twice before the Kansas Supreme Court as it grappled with some complicated issues surrounding federal and state constitutional and statutory rights to counsel.

The day after Mr. Lawson's first appearance, officers took Mr. Lawson to the police department for interrogation.  According to officers, they provided oral and written Miranda warnings and Mr. Lawson signed a written Miranda waiver and subsequently made several incriminating statements.

The KSC acknowledged that recent SCOTUS case law allows for uncounseled waivers of both the Fifth and Sixth Amendment right to counsel by a Miranda waiver process.  Although the KSC discussed at some length the possibility of independently construing the Kansas Constitution right to counsel, it ultimately decided the case on statutory grounds:
We need not decide today whether the right to counsel described in K.S.A. 22-4503 is constitutionally required by the right to counsel provision in § 10 of the Kansas Constitution Bill of Rights. Where a right to counsel is provided by statute, the denial of that right can result in a reversal. Here, Lawson was "charged by the state of Kansas in a complaint, information or indictment with [a] felony," and, therefore, he was "entitled to have the assistance of counsel at every stage of the proceedings against [him]." K.S.A. 22-4503(a).
. . . .
Given that the State-initiated polygraph examination and interview of Lawson was a critical stage of his criminal proceedings for Sixth Amendment purposes, we hold that it was likewise a stage of the criminal proceedings for purposes of his entitlement to the assistance of counsel pursuant to K.S.A. 22-4503.

The KSC went on, then to decide that an uncounseled out-of-court waiver is invalid with respect to the statutory right to counsel:
we would hold that a defendant's uncounseled confession to a judge, via a plea of guilty, would be invalid unless the defendant had waived his or her right to counsel on the record after being given appropriate warnings by the court and after the court had assured itself that the waiver was knowingly and intelligently made and then caused all of that to be made a matter of record. We should not require anything less for an out-of-court, in-the-police-station confession to a law enforcement officer where the waiver of the defendant's statutory entitlement to the assistance of existing counsel is required. In other words, after the statutory right to counsel has attached, the defendant's uncounseled waiver of that right will not be valid unless it is made in writing and on the record in open court. A Miranda rights waiver form, addressing the defendant's Fifth Amendment right to remain silent, simply cannot be an adequate substitute for the waiver procedure we require of our learned trial judges.
So Mr. Lawson gets a new trial without the incriminating statements taken during the interrogation.

 Here is coverage in the Leavenworth Times.

Sunday, April 07, 2013

Inaccurate information leading to guilty plea with no deal is IAC

Kurt P. Kerns and Melody S. Morgan won in Moll v. State, No. 107,450 (Kan. App. March 15, 2013)(unpublished) affirming Judge Yost's order allowing withdrawal of a plea in a Sedgwick County aggravated battery and aggravated escape from custody prosecution.  Mr. Moll had pleaded guilty without a plea agreement.  In his habeas motion, he claimed ineffective assistance of counsel.  Judge Yost agreed and the COA affirmed:
The district court concluded that [defense counsel's] actions fell below the standard of reasonable assistance of counsel in two respects. First, the court faulted [defense counsel's] investigation and trial preparation, concluding that [defense counsel] failed to give meaningful consideration to the possibility of trial and failed to “develop[ ] information through investigation or pretrial motion practice which would have increased the odds of a more favorable resolution.” Second, the court faulted [defense counsel's] advice to Moll, concluding that “[defense counsel] failed to communicate the necessary information to [Moll] in order for [Moll] to make a knowing and voluntary waiver of his right to trial.”
Two criminal-defense attorneys testified as expert witnesses, and both said that [defense counsel's representation had been below the required standard. The district court's factual findings included that “[b]oth experts credibly opined that an investigation and pretrial motions should have been pursued in this case.” As to the advice given, Moll testified that [defense counsel] told him that he “was going to get probation” and that [defense counsel] “just said we might as well just plead guilty and get it over with and you're going to get probation.”
The State correctly notes the rule that tactical and strategic decisions usually don't establish that the attorney was ineffective. But even strategic decisions must be part of a reasonable, overall defense strategy. Here, the district court found that, in light of Moll's criminal history and the fact that the sentencing guidelines provided for a presumptive prison sentence, [defense counsel's] belief—and advice—that Moll would receive probation was “simply unreasonable.” We agree. Nor does the complete failure to investigate or prepare the case constitute a reasonable, overall defense strategy.
[Update: the state did not file a PR and the mandate issued on April 18, 2013.]