Sunday, March 31, 2013

Introducing evidence of probation does not open door to details of underlying offense

Washburn student intern Aaron Freestone and I won in State v. Everett, No. 100,529 (Kan. March 29, 2013), obtaining a new trial in a Smith County manufacture prosecution.  There were several alleged errors in the case, but the KSC reversed based on improper introduction of evidence of details of prior crimes.

The state alleged, based on informant testimony, that Mr. Everett manufactured and then used the product during a two-month period (later a three-month period).  During the alleged time period, Mr. Everett was on probation and was taking periodic drug tests.  Mr. Everett introduced evidence that all of his drug tests were clean during the time period in question, casting doubt on the informant's story.  After this testimony, the state argued that defense counsel had "opened the door" to testimony regarding the details of the offense for which Mr. Everett was on probation--possession of manufacture paraphernalia.  Over defense objections, the district court allowed the cross-examination.  The KSC disagreed:
The only relevance articulated by the trial judge was the jurors' curiosity. Mere curiosity is not equivalent to materiality. The evidence must be material to the issues the jury must decide or to the rebuttal of the evidence the defense introduced.  In this case, the prior conviction is not an element of the offense, and it does not have a legitimate and effective bearing on the decision of whether Everett
unlawfully manufactured a controlled substance.

The only potential materiality of the prior conviction is to prove that Everett had the tools to manufacture methamphetamine in the past and probably manufactured methamphetamine this time, i.e., Everett had a propensity to commit the crime. This is precisely the harm K.S.A. 60-455 was designed to prevent, and Gunby clarified that evidence is not admissible if its only purpose is to establish a propensity to commit a crime. 

The evidence that Everett had been convicted of possession of drug paraphernalia with intent to manufacture methamphetamine was not material, and it was error to admit the evidence even in rebuttal. 

Some of the trial judge's comments suggest he had doubts about the admissibility of the evidence, even in rebuttal, but he felt any claim of error had been waived by the defense presenting information regarding the probation. We disagree. General information that a defendant has committed a previous crime is far different from evidence of the exact nature of the prior crime, at least under the specific facts of this case. Granted, the defense's evidence portrayed Everett in a bad light. But the State's rebuttal evidence went further and informed the jury that Everett had planned to manufacture methamphetamine on a prior occasion. This additional evidence was like putting a neon sign over Everett that read, "propensity to manufacture methamphetamine." The difference is significant, distinct, and more prejudicial than simply soiling Everett's character. For the same reasons, Everett's failure to object to the preliminary questions regarding the general nature of community corrections and the fact that Everett was on probation because he had committed an unspecified felony does not preclude our review of this question under K.S.A. 60-404.
As an aside on harmless error analysis, the KSC also noted that because the state had not argued the error was harmless, it had waived any such claim.

Saturday, March 30, 2013

April/May 2013 KSC Docket

Here are the criminal cases on the KSC docket for April 29-May 2, 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.

April 29--Monday--a.m.

State v. Katron Harris, No. 104,565 (Wyandotte)
Direct appeal; First-degree felony murder
Michelle A. Davis
  1. Insufficient evidence of underlying robbery
  2. Failure to grant mistrial after prosecutor's attack on defense counsel
  3. Insufficient evidence of alternative means
State v. Austin Jones, No. 105,420 (Sedgwick)
Direct appeal; First-degree felony murder
Randall L. Hodgkinson
  1. Stand Your Ground immunity
  2. Prosecutorial misconduct
State v. Jason Cruz, No. 104,847 (Sedgwick)
Direct appeal; First-degree murder (premeditated)
Shawn E. Minihan (brief); Joanna Labastida (argue)
[Affirmed; Johnson; Aug. 9, 2013]
  1. Improper consolidation
  2. Improper line-up identification
  3. Improper admission of gang evidence
  4. Improper eyewitness ID instruction
State v. Sergio Cervantes-Puentes, No. 104,020 (Sedgwick)
Direct appeal; Agg indecent liberties
Matthew J. Edge (brief); Michelle A. Davis (argue)
[Affirmed; Moritz; June 14, 2013]
  1. Improper photo array ID
  2. Imposed sentences are cruel and unusual punishment
  3. Life sentences are cruel and unusual punishment

April 30--Tuesday--a.m.

State v. Rodney Turner, No. 102,478 (Wyandotte)
State appeal (petition for review)
James L. Eisenbrandt, Christina M. Birgensmith
  1. Improper dismissal of theft/false claim prosecution
State v. Sean Key, No. 104,651 (Ellis)
Sentencing appeal (petition for review)
Michael S. Holland, II
  1. Failure to consider challenge to predicate DUI offense

May 1--Wednesday--a.m.

State v. Christopher Lowrance, No. 101,458 (Montgomery)
Direct appeal; Capital murder
Sarah Ellen Johnson
  1. Prosecutorial misconduct
  2. Improper removal of juror without cause
  3. Improper admission of prejudicial evidence
  4. Improper admission of opinion of lay witness
  5. Insufficient evidence
State v. Stanton Holt, No. 105,854 (Geary)
Motion for new trial appeal
Sam S. Kepfield
  1. Denial of motion for new trial
State v. Christopher Brooks, No. 103,774 (Crawford)
Direct appeal (petition for review); Rape
Ryan Eddinger (brief); Samuel D. Schirer (argue)
[Rev/Rmd; Johnson; July 26, 2013]
  1. Ineffective assistance of counsel

May 2--Thursday--a.m.

State v. Anderson Cheffen, No. 105,384 (Wyandotte)
Direct appeal; First-degree felony murder
Matthew J. Edge (brief); Michelle A. Davis (argue)
[Affirmed; Biles; June 21, 2013]
  1. Failure to confirm jury verdict in court
  2. Insufficient evidence of alternative means
  3. Failure to give lesser included offenses of felony murder
State v. Rusty Sievers, No. 102,471 (Barton)
Direct appeal; Fleeing and eluding
Michelle A. Davis
  1. Statutory speedy trial violation
  2. Fleeing and eluding and reckless driving convictions multiplicitious
State v. Tabitha Adams, No. 104,068/104,432 (Ford)
K.S.A. 60-1507 appeal
Christina M. Kerls
[Affirmed; Moritz; June 21, 2013]
  1. Ineffective assistance of counsel
  2. Improper denial of motion to withdraw plea

Thursday, March 28, 2013

Oral notice of prohibition could violate Due Process Clause

Washburn student intern Amy Ahrens and I won in State v. O'Dell, No. 105,311 (Kan. App. Jan. 18, 2013), obtaining a new trial in a Stevens County trafficking in contraband in a correctional institution conviction.  The state had alleged that Ms. O'Dell had introduced some cigarettes and a lighter (which she had been orally instructed were prohibited) into the Steven County jail while serving a couple of weekend jail terms for another offense.  For this offense, the state charged Ms. O'Dell with a couple counts of trafficking in contraband in a correctional facility, the jury convicted, and the district court imposed a controlling 45-month prison sentence.

The issue on which the majority reversed involved an instructional error.  Although the state charged Ms. O'Dell with introducing cigarettes and a lighter to the jail, the jury instructions allowed prosecution by showing that Ms. O'Dell possessed the prohibited items in the jail.  The COA agreed that these instructions allowed Ms. O'Dell to be convicted of a crime she was not charged with and reversed and remanded for a new trial:
The terms “introduce,” “take/send,” “possession,” and “distribution” are not synonymous or superfluous terms. Focusing on the terms relevant to this case illustrates this point. “Introduce” is defined as “to lead or bring in esp. for the first time.” Webster's New Collegiate Dictionary 606 (1973). Whereas, “possession” is defined as “the act of having or taking into control” or “control or occupancy of property without regard to ownership.” Webster's New Collegiate Dictionary 897 (1973). But “distribute,” on the other hand, is defined as “to divide among several or many.” Webster's New Collegiate Dictionary 333 (1973). We conclude there was instructional error.
Ms. O'Dell also claimed that the prosecution in this case violated the Due Process Clause.  The trafficking in contraband statute allows the administrator of each jail to designate what items can be lawfully possessed in each jail.  In this case, the state did not introduce any written policy regarding prohibition of cigarettes and/or a lighter.  Although one jailer indicated that there was such a policy, the officer that booked Ms. O'Dell into jail was not aware of it and Ms. O'Dell had certainly never been given such a written policy.  The booking officer did indicate that Ms. O'Dell was told that cigarettes and lighters were not permitted in the jail.   Ms. O'Dell raised a claim that oral instructions that an otherwise lawful item is prohibited in a jail was insufficient to provide notice of the crime.

The COA majority held that this issue was not raised below and refused to reach the issue for the first time on appeal.  Judge Atcheson dissented from this part, holding that the issue was sufficiently raised on appeal and should have been reached by the court:
On appeal, Odell submitted the notice lacked both “adequate [constitutional] safeguards” and failed to fairly inform her that possession of the cigarettes and the lighter would subject her to criminal penalties as opposed to merely administrative sanctions within the jail. Odell generally characterized the shortcomings as due process violations without offering additional labels. The thrust of Odell's argument rested on the constitutional insufficiency of oral notice alone in giving sufficient warning of conduct the State has chosen to criminalize—what she terms “nondeceptive notice.” In its brief, the State counters that Odell received actual oral notice that she could not have cigarettes or a lighter in the jail. According to the State, the oral notice fully satisfied Odell's due process rights. So sufficiency of oral notice as a matter of constitutional due process has been joined and ought to be considered. 

My analysis is not somehow judicially improper because it explores aspects of the issue from perspectives or using terminology the parties avoided. An appellate court may look beyond the precise arguments presented in the briefing of an issue, especially if those arguments are legally unsatisfactory. The briefs merely reflect the parties' assessments of the best advocacy for their respective positions—not the universe of every rationale for a given result. Appellate courts decide issues; they do not arbitrate or grade arguments. So the judicial resolution of an issue need not be rendered in lockstep with the argument or the terminology of one side or the other.


Judge Atcheson went on to indicate that he would have held that oral notificiation of a prohibited item is insufficient to satisfy the Due Process Clause:
Written notice of what conduct will subject persons to criminal punishment straddles substantive and procedural due process and properly fits within both spheres. The history and tradition runs deep. Hammurabi remains one of the world's great law givers because, nearly 4,000 years ago, he authored a legal code. While some of the substantive provisions Hammurabi recorded were notable, the code's epochal significance lay in the very idea that the law should be written and, thus, both fixed and knowable. See Clorox Co. v. Chromium Corp., 158 F.R.D. 120, 125 (N.D.Ill. 1994) (“From the code of Hammurabi to the code of the United States, our judicial foundation have been embedded in the principle that law must be manifested in a written form.”). The virtue of fixed, knowable law infuses the jurisprudence of this country. And it is both implicit and explicit in constitutionally protected rights.

The Sixth Amendment to the United States Constitution, for example, requires that those accused of crimes be afforded notice of the particular charges against them. The right has always been construed to require written notice. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 167 (1963) (notice required under Sixth Amendment includes the right to indictment, a written statement of the charges).  An accused's right to such constitutional notice of the charges extends to state prosecutions.

In [Cole v. Arkansas, 333 U.S. 196, 201–02 (1948)], the defendants were charged in an information—a written statement of the alleged crime—with one offense upon which the jury was instructed and then convicted them. On appeal, however, the Arkansas Supreme Court found the defendants guilty of a related, though more serious, charge. The United States Supreme Court, in an opinion Justice Hugo Black authored, reversed the decision, recognizing that “[n]o principle of procedural due process is more clearly established than [a defendant be given] notice of the specific charge.” 333 U.S. at 201.  Later in the opinion, Justice Black described the constitutional defect in terms characteristic of a breach of substantive due process rights afforded criminal defendants. As a result of the Arkansas Supreme Court's ruling, the defendants in that case were “denied safeguards guaranteed by due process of law—safeguards essential to liberty in a government dedicated to justice under law.”  333 U.S. at 202.

In short, a person accused of a crime must be given written notice of that accusation to comport with a fundamental right recognized as a necessary ingredient of basic fairness. If that be so—and it most certainly must in light of decisions such as Cole—then a fortiori, citizens have at least an equally compelling and fundamental right to be informed in writing as to what conduct may cause them to be accused in the first place. Any sensible conception of fair notice requires nothing less. And simple logic defies the notion that general notice of criminal conduct might be imparted orally to the citizenry as a whole while an alleged transgressor would then be entitled to written notice only when being charged with a purported transgression.


So, one COA judge found conviction under this statute to violate the Due Process Clause.  The other two didn't disagree, they simply failed to reach the issue.  If you have a prosecution for trafficking in contraband in a correctional institution based on an oral prohibition, you can should file a motion to dismiss attaching Judge Atcheson's dissenting opinion.

[Update:  neither party filed a petition for review and the mandate issued on February 26, 2013.]