Saturday, September 21, 2013

Illegal traffic stop requires suppression of statements

Michael J. Bartee won in State v. Jefferson, No. 98,742 (Kan. Sept. 6, 2013) obtaining a new trial in a Wyandotte County felony murder prosecution.  The KSC held that officer had illegally stopped Mr. Jefferson's vehicle and that resulting statements were fruit of the poisonous tree.  First, the KSC held that, while officer did know some facts about Mr. Jefferson, the officers did not have probable cause to believe that the car had evidence of a homicide:
Thus, although Jefferson was a suspect in Jackson's shooting at the time the detectives seized his vehicle, there is simply no evidence in the record linking the shooting to Jefferson's vehicle. In fact, the evidence contradicts such a link. Detectives had recovered the van used in the shooting and had found no weapons in that vehicle. Moreover, the shooting occurred more than a month before detectives seized Jefferson's vehicle, making any potential link between Jefferson's vehicle and the shooting even more tenuous. Additionally, the detectives acted inconsistently with their later claim of probable cause when they went to Jefferson's apartment—not to search his vehicle—but only to talk with Jefferson. And finally, the detectives allowed Jefferson's car to remain unattended, with keys in the ignition and the engine running, while they chased Jefferson. The officers simply did not act in a manner indicating a fair probability that the vehicle contained contraband or evidence of the homicide.
Because Mr. Jefferson was illegally detained, the state had to prove that the statements obtained were sufficiently attenuated from the illegal conduct.  The KSC held that
the detectives exploited their illegal seizure of Jefferson's car to obtain his incriminating statements. And the State has failed to establish under the totality of the circumstances that Jefferson's statements are sufficiently attenuated from the preceding illegal seizure.
The KSC did hold that sufficient evidence (including the illegally obtained evidence) supported the convictions and therefore remanded for a new trial without the incriminating statements.  Justice Beier wrote a concurring opinion noting that there is a colorable argument that such a sufficiency analysis should not include evidence obtained in violation of the constitution:
there is at least a colorable argument that [Lockhart v. Nelson, 488 U.S. 33, 41 (1988)] should be distinguished when exclusion arises from constitutional error. There is also a colorable argument that Kansas does or should do more to ensure that a constitutional right is not cheapened by allowing retrial when the evidence admitted in the original trial minus the portion that should have been excluded would not have proved the State's case. Virginia has adopted such an approach.
So practitioners that are presenting suppression and sufficiency issues should consider arguing regarding the application of Lockhart in cases involving constitutional violations.

Tuesday, September 10, 2013

October 2013 KSC Docket

Here are the criminal cases on the KSC docket for October 21-24, 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 on any of these arguments.

October 21--Monday--a.m.

State v. Michael Maestas, No. 106,214 (Stevens)
Direct appeal; First-degree murder
Christina M. Kerls
[Affirmed; Biles; January 24, 2014]
  1. Prosecutorial misconduct
  2. Failure to give lesser included offense for reckless second-degree murder
  3. Failure to allow full cross-examination
  4. Failure to find defendant mentally retarded
  5. Error in not ordering defendant to serve sentence in DOC
State v. James Simpson, No. 105,182 (Jefferson)
State appeal
John R. Kurth
  1. Witness incompetency
October 22, 2013--Tuesday--a.m.

State v. Dustin B. Hilt, No. 105,057 (Johnson)
Direct appeal; First-degree murder
Joanna Labastida
[Affd/Vacd/Rmd; Beier; April 18, 2014]
  1. Failure to supplement aiding and abetting instruction
  2. Improper dismissal of juror
  3. Improper admission of prejudicial evidence
  4. Improper testimony regarding spatter experiment
  5. Failure to give voluntary intoxication instruction
  6. Failure to give lesser included offense for voluntary manslaughter
  7. Admission of gruesome photographs
  8. Prosecutorial misconduct
  9. Hard-50 sentence unconstitutional
State v. DeWhite Cameron, 105,828 (Sedgwick)
Direct appeal; Felony murder
Randall L. Hodgkinson
[Affirmed; Rosen; July 25, 2014]
  1. Failure to give lesser included offense for involuntary manslaughter
  2. Failure to give lesser for reckless agg battery
  3. Improper admission of out-of-court statements when not available for cross-examination
  4. Improper instruction directing jury to determine whether defendant not guilty
  5. No evidence that death occurred during commission of child abuse
  6. Prosecutorial misconduct
State v. Thomas Remmert, No. 105,091 (Butler)
Direct appeal; Agg criminal sodomy
Joanna Labastida (brief), Korey Kaul (argue)
[Affirmed; Rosen; January 17, 2014]
  1. Improper admission of prior bad act evidence
  2. Insufficient evidence
  3. Failure to grant downward departure
State v. Francis Smith, No. 104,245 (Bourbon)
Direct appeal; Agg indecent liberties with a child
Meryl Carver-Allmond
[Affd/Vacd; Biles; June 27, 2014]
  1. Improper admission of prior bad act evidence
  2. Improper admission of pornography evidence
  3. Improper instruction that defendant not guilty "until" proved guilty
State v. Terrence Kelly, No. 105,934 (Johnson)
Sentencing appeal
Carl Folsom, III
[Affirmed; Biles; February 21, 2014]
  1. Denial of motion to withdraw plea
  2. Improper counting of priors used to certify for adult prosecution
October 23--Wednesday--a.m.

State v. Ryan Dull, No. 105,115 (Sedgwick)
Direct appeal; Agg criminal sodomy/rape
David Phillip Leon
[Affirmed; Beier; January 31, 2014]
  1. Prosecutorial misconduct
  2. Improper admission of prejudicial evidence
  3. Ineffective assistance of counsel
  4. Failure to grant downward departure
  5. Insufficient evidence
State v. Kedrin Littlejohn, No. 105,872 (Sedgwick)
Direct appeal; Felony murder
Carl Maughan
[Affirmed; Rosen; January 17, 2014]
  1. Failure to give lesser included offense instruction
  2. Improper alternative means instruction
  3. Improper aiding and abetting instruction
  4. Failure to give compulsion instruction
  5. Failure to grant motion to suppress
  6. Insufficient evidence
State v. Marlin Williams, No. 102,036 (Sedgwick)
Direct appeal (petition for review); Agg trafficking
Michelle A. Davis
[Affirmed; Luckert; June 27, 2014]
  1. Agg trafficking statute is overbroad
  2. Agg trafficking statute is vague
  3. Prosecutorial misconduct
  4. Failure to give lesser sentence for identical offense of promoting prostitution
  5. Failure to sentence for more specific offense of promoting prostitution
State v. Todd Schumacher, 106,103 (Wichita)
Direct appeal; First-degree murder
William K. Rork
[Affirmed; Mortiz; March 7, 2014]
  1. Insufficient evidence
  2. Prosecutorial misconduct
October 24--Thursday--a.m.

State v. Tony Lewis, No. 106,093 (Riley)
Direct appeal; Rape/Agg kidnapping
Rachel L. Pickering
[Affd/Vacd; June 13, 2014]
  1. Improper response to jury question regarding hung jury
  2. Prosecutorial misconduct
  3. Failure to suppress statements
  4. Failure to suppress photo ID
  5. Improper alternative means rape instruction
  6. Improper finding of agg habitual sex offender
State v. Tyjuna Sharkey, No. 106,150 (Sedgwick)
Direct appeal; Agg indecent liberties
Michelle A. Davis
[Affd/Rvd/Rmd; Luckert; April 11, 2014]
  1. Ineffective assistance of counsel
  2. Improper alternative means agg indecent liberties instruction