Friday, May 31, 2013

Rare win under Uniform Mandatory Disposition of Detainers Act

Benjamin Fisher and Shawn Lautz won in State v. Burnett, No. 100,766 (Kan. May 31, 2013), reversing a Reno County conviction for aggravated weapons violation.  The Court reversed the conviction based on a violation of the Uniform Mandatory Disposition of Detainers Act (UMDDA), the "intrastate process for prisoners in Kansas penal or correctional institutions to request final disposition of other criminal charges pending in the state."

The Court explained the general speedy trial protections under the UMDDA:
Once the prisoner properly initiates disposition of the other charges under the UMDDA, the State's failure to bring those charges to trial within 180 days deprives the district court of jurisdiction, subject to certain statutory exceptions. K.S.A. 22-4303.
Applying the UMDDA to Burnett's case, the court stated:
We hold that the Court of Appeals incorrectly determined there were procedural bars precluding review of Burnett's case. We further hold that the district court erred when it determined the UMDDA was inapplicable to Burnett's pending charges. Based on this and the lack of any claim that continuances tolled the running of the 180-day period, we hold the district court lost jurisdiction to try, convict, or sentence Burnett. Accordingly, we reverse the Court of Appeals decision affirming the district court. Burnett's conviction is reversed and his sentence vacated.
The procedural bars that the COA had found were based on Burnett sending his detainer request to the secretary of the KDOC instead of local county jail officials, his failing to send his request by certified mail, and the fact that it was unknown when the Reno County District Attorney received a copy of the request (which starts the 180-day period).  The KSC rejected all of these alleged procedural bars.

The KSC held that Burnett was in the "custody" of the KDOC for purposes of the statute, because he was held in the county jail pursuant to a felony sentence with an order to be transferred to the KDOC.  Thus, Burnett's service of his UMDDA request on the Secretary of Corrections was appropriate.

Additionally, the KSC held that Burnett was not required to send his disposition request by certified mail.  The statute simply does not contain such a requirement.

The court held that the KDOC failed to fulfill its duty to send certified documents to the district court and to the district attorney, but this failure could not prejudice Burnett from asserting his statutory speedy trial rights (reaffirming that "the burden to send the certification to the district court and county attorney shifts to prison officials once the facts establish that the prisoner properly invoked the UMDDA").

Because Burnett was not brought to trial within 180 days of his request for disposition of his detainer, the court vacated Burnett's conviction and sentence.

Sunday, May 26, 2013

Theft is one offense, even if different owners

Lydia Krebs won in State v. Hood, No. 101,953 (Kan. May 17, 2013), getting reversal of one of two theft convictions and sentences  stemming from a single taking.  The primary issue in the case was whether a single taking of property could be split into two offenses if the state showed more than one owner.  The KSC answered in the negative:
The panel's isolation and elevation of the term "owner" in the mens rea element of the theft definition creates a misdirection as to the nature of the crime. Considering the statute as a whole, it is clear that the "nature of the conduct proscribed," is gaining unauthorized control over property rather than the victimization of any particular person. In other words, the gravamen of the offense is clearly a property crime rather than a person crime.
Because the KSC held that the gravamen was the single taking, it vacated one  theft conviction and sentence as multiplicitous.

Saturday, May 25, 2013

Walking down the street is not a crime

Michael J. Bartee won in State v. Williams, No. 101,617 (Kan. May 17, 2013), affirming Judge Boeding’s suppression order in a Wyandotte County drug prosecution.  Judge Boeding had held that Mr. Williams was illegally detained and suppressed the seized evidence.  The COA had reversed with the majority finding alternatively that the entire encounter was voluntary and that the taint of any illegal detention was purged by discovery of an outstanding warrant.  The KSC agreed with dissenting COA Judge Standridge that Mr. Williams had been seized for Fourth Amendment purposes and then applied its clarified attenuation analysis from Moralez (another Michael Bartee case decided the same day and blogged about here) and agreed with Judge Standridge that the taint of official misconduct was not purged:
the third factor in this case—the purpose and flagrancy of the officers' conduct—weighs heavily in favor of suppression. Importantly, not only did the officers lack reasonable suspicion of Williams' involvement in criminal activity, the record also demonstrates no reason for the officers' encounter with Williams other than to conduct what Officer Lewis described as a "pedestrian check," which, in this case, involved the check for outstanding warrants.
Even though on slightly different grounds, the KSC affirmed Judge Boeding's suppression order.

Officer cannot unreasonbly create exigent circumstances

Patrick H. Dunn won in State v. Campbell, No. 101,680 (May 3, 2013), obtaining a suppression order in a Riley County drug prosecution.  The issue presented in the case had to do with whether the state proved exigent circumstances that justified a warrantless entry into an apartment.  The KSC agreed with Mr. Campbell that the officers' actions were unreasonably created the purported exigent circumstances:
In contrast to the officers in [Kentucky v. King (U.S. 2011)], the officer here did not mistakenly approach the defendant's apartment door. Nor did the officer here announce his presence or give the occupants any opportunity to make an "informed" decision whether to open the door. In considering the circumstances of this case, we are mindful that the Fourth Amendment permits knock and talk encounters because they are voluntary consensual encounters.
Recently, in discussing whether a dog sniff at the front door of the defendant's home was consistent with the Fourth Amendment, the United States Supreme Court commented on the scope of an officer's permissible actions when approaching a front door, stating, "[t]he knocker on the front door is treated as an invitation or license to attempt an entry." Florida v. Jardines (U.S. March 26, 2013). The invitation or license extended to "solicitors, hawkers and peddlers" also extends to law enforcement officers, who are accordingly permitted to do as any "'private citizen'" might do."
Here, Officer Nible did more than "any private citizen might do." See King, 131 S. Ct. at 1862. Rather than simply knock on the door and wait for an answer, Nible affirmatively chose to conceal his identify by covering the peephole and positioning himself to block the occupant's ability to determine who was standing at the door—essentially forcing the occupant of the apartment to make an uninformed decision. "No customary invitation" permits approaching someone's door in this manner. Pursuant to King, because Nible acted unreasonably by exceeding the scope of a knock and talk, he engaged in conduct that violated the Fourth Amendment and cannot rely on the exigency exception to justify his warrantless entry.
Because the warrantless entry was not justified by exigent circumstances, it violated the Fourth Amendment and the KSC ordered the discovered evidence suppressed.

Friday, May 24, 2013

Attenuation doctrine clarified

Michael J. Bartee won in State v. Moralez, No. 102,342 (Kan. May 17, 2013), reversing a Shawnee County drug  conviction.  The KSC made it clear that while asking for identification does not generally constitute a seizure, retention of the card beyond the point needed for identification does:

[W]e cannot discern from the record how long [the officer] retained Moralez' identification card. But, as in Lopez, we know he did so longer than necessary to “document” speaking with Moralez. And, we know that [the officer] retained Moralez' identification while he conducted the warrants check despite lacking any suspicion that Moralez was engaged in any criminal activity.

Under these circumstances, we conclude [the officer] seized Moralez when [he] requested and took possession of Moralez' identification card and then retained it while running a check for outstanding warrants. Further, because [the officer] did not suspect Moralez of involvement in any criminal activity, the seizure was unlawful.

The KSC went on to consider whether, as the district court had found, discovery of an outstanding arrest warrant purged the taint of the illegal detention so that the exclusionary rule did not apply.  The KSC reviewed its precedent and clarified the operation of the attenuation doctrine:

We now recognize that in Jones we failed to distinguish between the lawfulness of an arrest based on an outstanding warrant discovered during an unlawful detention and the taint of the unlawful detention that may apply to evidence discovered pursuant to the lawful arrest. In Martin, we compounded this error by over-emphasizing the discovery of the outstanding warrant and the lawfulness of the arrest based on the warrant.

. . . .

To the extent that Martin or Jones have been or can be read to suggest that the discovery of an outstanding arrest warrant always constitutes an intervening circumstance that dissipates any taint, we now expressly disapprove that interpretation. Stated more succinctly, the preceding unlawful detention does not taint the lawful arrest on the outstanding warrant, nor does it prevent the officer from conducting a safety search pursuant to that arrest; but it does taint any evidence discovered during the unlawful detention or during a search incident to the lawful arrest.

Were it otherwise, law enforcement officers could randomly stop and detain citizens, request identification, and run warrants checks despite the lack of any reasonable suspicion to support the detention, knowing that if the detention leads to discovery of an outstanding arrest warrant, any evidence discovered in the subsequent search will be admissible against the defendant in a criminal proceeding unrelated to the lawful arrest.

 In this regard, we agree with the conclusion of the Arizona Supreme Court in applying the second Brown factor: “[T]he subsequent discovery of a warrant is of minimal importance in attenuating the taint from an illegal detention upon evidence discovered during a search incident to an arrest on the warrant.”

Specifically with regard to the third Martin factor—flagrancy of the official misconduct, the KSC denounced law enforcement “fishing expeditions” :

when law enforcement officers approach random citizens, request identification, and run warrants checks for no apparent reason, the officers clearly are performing investigatory detentions designed and executed in the hope that something might turn up. Though some have understood us to condone this practice in Martin, we now expressly disapprove of any language in Martin that could be interpreted as holding or suggesting that “fishing expeditions” by law enforcement officers are generally acceptable as long as the detention is brief and the officers are courteous. See Martin, 285 Kan. at 1004, 179 P.3d 457. In fact, quite the opposite may be true. Regardless of whether a suspicionless detention to identify a citizen and check that citizen for outstanding arrest warrants is characterized as a standard practice, a field interview, a pedestrian check, or a “fishing expedition,” such a detention can, and often will, demonstrate at least some level of flagrant police conduct.

Applying the clarified factors, the KSC held that the taint was not purged in this case:

To summarize our conclusions regarding the attenuation analysis, we hold that the first factor—the short time between Moralez' initial contact with police and the discovery of the marijuana—weighs heavily in favor of Moralez, while the second factor—the presence of intervening circumstances—essentially is neutral under the circumstances of this case. Therefore, our conclusion regarding the third factor and the flagrancy of the officer's conduct tips the balance in favor of Moralez and requires application of the exclusionary rule in this case.

Sunday, May 05, 2013

Withholding treatment for gunshot contributes to coerced confession

Debra J. Wilson won in State v. Garcia, No. 104,998 (Kan. April 26, 2013), obtaining a new trial in a Shawnee County felony murder prosecution.  The KSC summarized the facts regarding interrogations as follows:
Initially, Garcia denied that he knew Fernandez or that he was involved in any robbery. He subsequently admitted knowing Fernandez and acknowledged that he was at the scene of the shooting. But for most of the interview he continued to deny any involvement in the robbery. Instead, Garcia's version of events was that he tried to intervene when he saw Vega attempting to abduct Buck into a van, but someone began shooting and wounded Garcia, prompting him to flee the scene. During the interview, Garcia requested medical attention a number of times, but the officers said that he would have to wait for medical treatment or pain medication [for a gunshot would] until the interrogation was complete and Garcia had done "what you know is the right thing to do." The law enforcement officers refused to accept that Garcia was rescuing Buck and repeatedly urged him to admit to participating in the robbery and to be a witness against Fernandez, the shooter, in order to avoid being charged with felony murder. At one point, an officer told Garcia that the district attorney was present outside of the interrogation room. The interrogating officer initially refused Garcia's request to see his girlfriend, Malkawi, saying that Garcia first needed to tell the truth about what happened in his own words. When Garcia would not give that statement, the officer brought Malkawi into the interrogation room to tell Garcia that he would not be booked for murder if he admitted to the robbery. Garcia immediately admitted to participating in the robbery, albeit he provided no details on how the robbery was planned or executed. The interview concluded shortly thereafter, and Garcia was booked into jail on charges of both felony murder and robbery.
The KSC held that under the totality of the circumstances, any statements were not voluntarily obtained:
We discern that certain things are patently obvious from the words and actions of the law enforcement officers conducting Garcia's interrogation. First, the officers knew that Garcia had been shot in the foot with a firearm; that he probably still had the bullet inside his body; that he had not received professional medical treatment for the wound; and that he was experiencing pain from the injury at the time of the interrogation. Next, Garcia was not going to be provided any medical attention or pain relieving medication until the officers had completed their questioning and took him to the hospital to retrieve the bullet for evidence. Further, the officers appeared unlikely to complete their questioning until Garcia gave them the statement that they believed to be true, which was that Garcia participated in the robbery.
. . . .
Even for an accused with Garcia's prior experience with the legal system, the withholding of medical attention until the completion of the interrogation had to influence the ultimate decision to tell the police what they were asking to be told. Even if Garcia did not confess solely to obtain medical treatment, the tactic of withholding requested relief for an obviously painful untreated gunshot wound over the course of a several-hours-long interrogation was inherently coercive and must play a significant role in our totality-of-the-circumstances test. Indeed, one of the purposes of the exclusionary rule is to prevent inhumane and unacceptable interrogation techniques.
The KSC also held that the interrogators improperly promised leniency:
The foregoing exchange did not stop short of promising a benefit to Garcia in return for his confession to robbery. The promised benefit was clearly stated: "They're not going to book you for murder." That was the same carrot that the officers had been unsuccessfully dangling in front of Garcia for hours. But this time, it was delivered by someone that Garcia trusted, and the result was immediate: "All right, man, I did, I did try to rob that guy."
The promise concerned action to be taken by a public official, i.e., the law enforcement officer who would process Garcia into jail. The promise was one that would likely cause the accused to make a false statement to obtain the promised benefit, i.e., the ability to make a murder charge and accompanying life sentence go away would be a strong motivator for prevarication. Finally, although the promise was verbalized by Malkawi, she was obviously referring to the conduct of the police. Sergeant Volle told Garcia that he had talked with Malkawi and then he brought her into the interrogation room, imploring her: "Go ahead, explain to him. Help me help him." After Malkawi stated that "they" were not going to book Garcia for murder, the sergeant did not correct the statement. To the contrary, after Malkawi left the room, he pointed out to Garcia that he had been telling the truth all along. Regardless of whether the DA had made a charging decision, the arresting officer clearly had the apparent authority to fulfill the promise not to book Garcia for murder. In short, the promise in this case fits within the parameters of those promises that may be deemed to have rendered a confession involuntary.
The KSC held that the state had not argued that the improper admission of the statements was harmless and, in any case, the admission was not harmless. So, it ordered a new trial.

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

Saturday, May 04, 2013

Plea agreement precluded later charges

Patrick H. Dunn won in State v. Hutchens, No. 107,457 (Kan. App. April 12, 2013)(unpublished) affirming Judge Noland's dismissal order regarding a Crawford County criminal sodomy prosecution.  Judge Noland dismissed the charges pursuant to a previous plea agreement in which Mr. Hutchens had pleaded guilty to amended charges of sexual exploitation of a child and aggravated endangering of a child and in exchange the state also agreed to dismiss with prejudice "any other charge related to these facts that is not the subject of a plea under this Agreement."  After the state filed additional criminal sodomy charges, Judge Noland dismissed under this provision of the plea agreement.

The COA noted that, while it is not bound by a district court's interpretation of a written plea agreement, it agreed with Judge Noland in this case:
The State argues the district court has misinterpreted the language of the plea agreement in case No.2010–CR–113G. First, the State contends the plea agreement applied to charges “related to these facts” and the court improperly expanded the words of the plea agreement to mean “related to this investigation.” Second, the facts of the plea agreement involved K.G. and M.G. and not W.G.—W.G. was not a victim in case No.2010–CR–113G. Third, the State insists that although W.G. was part of the investigation in case No.2010–CR–l 13G, he was not a victim and did not disclose to authorities that Hutchens sexually abused him until after the plea agreement was entered. The State asks us to find that the plea agreement did not give Hutchens immunity for any other crime he committed other than against K.G. and M.G.
The criminal sodomy charges in the present case arose out of the same investigation and the same facts as those in case No.2010–CR–113G. We find the State's argument on the words “facts” and “investigation” to be one of semantics and, in this case, words without a difference. W.G. was interviewed multiple times during the investigation of the sexual abuse allegations involving his brothers K.G. and M.G. Knowledge of possible sexual abuse against W.G. was known by the State at the time of the plea agreement. The State had a witness who saw Hutchens on top of W.G. in Hutchens' bed. The fact that W.G. denied that Hutchens had sexually abused him at that time does not the negate the fact that allegations of sexual abuse against Hutchens involving W.G. were a possibility. The facts surrounding the sexual abuse against W.G. were discovered during the same time the facts surrounding sexual abuse of K.G. and M.G. arose. The State chose not to pursue charges involving W.G. most likely because W.G. had denied the allegations. The State was aware of the facts surrounding the abuse of W.G. at the time it entered the plea in case No.2010–CR–113G.
[Update: the state did not file a PR and the mandate issued on May 16, 2013.]