Saturday, June 29, 2013

Insufficient endangerment instruction clear error

Lydia Krebs won in State v. Cummings, No. 102,527 (Kan. June 28, 2013), obtaining a new trial in a Sedgwick County misdemeanor manslaughter prosecution.  The state charged Ms. Cummings with a death occurring during the misdemeanor offense of child endangerment, which requires a showing that Ms. Cummings caused or permitted a child to be placed in a situation in which there was a reasonable probability that the child’s life, body or health would be injured or endangered.  The KSC reviewed its precedent on the child endangerment statute, where it had held that the child endangerment statute was constitutional only if it was construed to only if “the word ‘may’ ‘means something more than a faint or remote possibility; it means that there is a reasonable probability, a likelihood that harm to the child will result.’” It then applied this precedent to hold that the PIK instruction used in Ms. Cumming's case did not sufficiently convey that requirement:

Accordingly, we hold that, without further clarification, the term “reasonable probability” creates an ambiguity for the jury as to the level of risk that constitutes criminal conduct. The problem associated with this ambiguity is real; a defendant could be convicted based on the jury's misunderstanding of the level of culpability that our endangering a child statute requires. The severity of this problem increases because of hindsight bias and risk distortion. The pattern instruction given, therefore, was not legally appropriate.

The KSC directed that, in child endangerment prosecutions, the following limitation should be included in the jury instruction:

In determining if there was a reasonable probability that [the child's] life, body, or health would be injured or endangered, you should consider (1) the gravity of the threatened harm, (2) the legislature's or regulatory body's independent assessment that conduct is inherently perilous, and (3) the likelihood that harm to the child will result or that the child will be placed in imminent peril. “Likelihood” means more than a faint or remote possibility.

The KSC went on to hold that the insufficient instruction in the instant case was clear error and, therefore, reversed and remanded for a new trial.  In reaching this conclusion, the KSC included some nice discussion of jury risk distortion.

Here is coverage of this case in the Wichita Eagle.

This holding could be important in at least a couple of other areas.  First, the aggravated child endangerment statute does not even include unreasonable risk as a statutory element.  This case may bolster a vagueness challenge to that statute.


Second, there are other statutes that turn on sort of speculative possible outcomes, like aggravated battery where the conviction is based on contact “in any manner whereby great bodily harm, disfigurement or death can be inflicted.”  Practitioners may want to consider vagueness challenges to this statute and/or consider requesting instructions similar to those adopted in Cummings

Saturday, June 22, 2013

Closing courtroom violates Public Trial Clause

Rebecca L.Kurz won in State v. Cox, No.  103,674 (Kan.  June 21, 2013), obtaining a new trial in a Labette County aggravated criminal sodomy prosecution.  During the jury trial, the district court cleared the courtroom while photographs of the victim’s genitalia were displayed and discussed.  Defense counsel suggested that the district court’s concerns could be addressed by simply passing photographs to the jurors without closing the courtroom.  The KSC held that the district court’s procedure violated the Public Trial Clause:

The district judge's wholesale closure of the courtroom during the presentation of this evidence, in the absence of the State or the judge expressing any “overriding interest” combined with the lack of meaningful consideration of alternatives, violated Cox's Sixth Amendment right to a public trial.


The KSC reiterated that a Public Trial Clause violation cannot be harmless and also rejected the state’s attempt to have the case remanded to allow the district court to make some retrospective findings with regard to the need to completely close the courtroom.

Second time is a charm

Heather Cessna won in State v. Beye, No. 105,087 (Kan. App. June 21, 2013)(unpublished), obtaining reversal of a Wilson County drug conviction.  The COA had originally rejected Mr. Beye’s Fourth Amendment claim based on an intervening circumstance of discovery of an arrest warrant.  The KSC remanded the case for reconsideration in light of State v. Moralez (blogged about here), holding that discovery of an arrest warrant is of minimal importance in attenuating the taint of an illegal arrest.  After reconsideration, the COA  applied Moralez and held that there was  no significant temporal break.  The COA also held that the misconduct was flagrant:

Like the facts in Moralez, we find that by keeping Beye's driver's license with no reasonable suspicion of criminal activity, the stop was transformed to a suspicionless investigatory detention. Accordingly, Allen acted flagrantly by conducting the warrant check. Therefore, the third factor weighs slightly in favor of suppression here.


As a result, the COA held that the illegal detention required suppression.

Friday, June 21, 2013

Misdemeanors are still misdemeanors

Janine Cox won in State v. Smith, No. 108,476 (Kan. App.  June 21, 2013)(unpublished), affirming Judge Sundby’s criminal history finding.  Judge Sundby had found that several juvenile misdemeanors had decayed and should not be included in criminal history.  The state argued that, because the misdemeanors had been aggregated and treated like a felony in a previous case, they could not decay.  The COA agreed with Judge Sundby:
Thus, because the nature of the prior offense never changes and because K.S.A. 21–6810 looks to the prior offense to determine whether an adjudication decays, when Smith committed the current crimes after he turned 25, his prior misdemeanor juvenile adjudications decayed under K.S.A. 21–6810(d)(4)(C) and cannot be used in the calculation of his criminal history score. It is irrelevant that the misdemeanor juvenile adjudications have, at some prior time, been converted to person felony adjudications for sentencing purposes.
[Update: the state did not file a PR and the mandate issued on July 25, 2013.]

Saturday, June 08, 2013

When case remanded for resentencing, it's not final

Elizabeth Seale Cateforis won in Baker v. State, No. 100,501 (Kan. June 7, 2013), reversing a summary denial of Mr. Baker’s habeas motion based on a one-year statute of limitations.  On June 9, 2006, the KSC affirmed Mr. Baker’s conviction, but remanded for resentencing .  On December 21, 2006, the district court  resentenced Mr. Baker, and Mr. Baker did not appeal from that resentencing.  On August 6, 2007, Mr. Baker filed a motion pursuant to K.S.A. 60-1507 claiming IAC of trial counsel.  The district court held that the motion was filed more than one year after the KSC affirmed the conviction and therefore was untimely.  Mr. Baker argued that the one-year time limit should run from the time of resentencing (and any possible direct appeal from that resentencing).  The COA and the KSC agreed with Mr. Baker:

After construing K.S.A. 60-1507 as a whole and in harmony with Supreme Court Rule 183, we hold that under the facts of this case, the 1-year time limitation in which to file a K.S.A. 60-1507 motion does not begin until the time to appeal from the resentencing expires. As discussed above, Rule 183(c)(2) prohibits pursuit of a motion under K.S.A. 60-1507 while an appeal is pending or during the time within which an appeal may be perfected.

Moreover, K.S.A. 60-1507(f)(1)(i) requires a motion to be filed within 1 year of "[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction." Since Baker still had the right to appeal from his resentencing there was not yet a "final order." The 1-year time limitation for filing a motion could not begin until after the time for appeal from resentencing expired.


So Mr. Baker gets consideration of his motion on the merits.

Sunday, June 02, 2013

September 2013 KSC Docket

Here are the criminal cases on the KSC docket for September 9-13, 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.

September 9--Monday--a.m.

Martin Miller v. State, No. 103,915 (Douglass)
K.S.A. 60-1507 appeal (petition for review)
Jessica R. Kunen
[Rvd/rmd; Biles; Feb. 14, 2014]
  1. Ineffective assistance of trial and appellate counsel
State v. Donald Dean, No. 105,625 (Meade)
Direct appeal; Rape
Ryan Eddinger (brief); Deborah L. Hughes (argue)
[Affd/Vacd; Moritz; Feb. 28, 2014]
  1. Improper admission of prior bad act evidence
  2. Erroneous limiting instruction re: prior bad act evidence
  3. Improper admission of official version of offense at sentencing
  4. Improper prosecutorial argument
  5. Life sentence is Cruel and Unusual Punishment
State v. Joshua Robertson, No. 105,882 (Butler)
Motion to correct illegal sentence appeal
Michael C. Brown
[Affirmed; Beier; Nov. 8, 2013]
  1. Improper denial of motion to correct illegal sentence
September 10--Tuesday--a.m.

Jorge Prado, No. 105,401 (Johnson)
Sentencing appeal
Matthew J. Edge (brief); Lydia Krebs (argue)
[Rvd/Vacd; Mortiz; July 18, 2014]
  1. Failure to inquire into dissatisfaction with counsel
  2. Improper denial of motion for substitute counsel
State v. Antonio Armstrong, No. 103,120 (Shawnee)
Direct appeal; First-degree (premeditated) murder
Shawn E. Minihan (brief); Heather R. Cessna (argue)
[Affirmed; Luckert; May 23, 2014]
  1. Prosecutorial misconduct
  2. Failure to instruct on reckless second-degree murder
  3. Improper instruction on voluntary manslaughter
  4. Failure to grant mistrial (sleeping jurors)
  5. Lack of jurisdiction to grant restitution after sentencing
State v. Corky Williams, No. 103,785 (Shawnee)
Direct appeal; First-degree (premeditated) murder
Bonnie Boryca (brief); Michael P. Whalen (argue)
[Affirmed; Luckert; May 23, 2014]
  1. Insufficient evidence of premeditation and conspiracy
  2. Improper denial of Batson challenge
  3. Improper prosecutorial argument
  4. Improper admission of defendant's statements
  5. Failure to grant mistrial after violation of in limine order
  6. Improper instruction on constructive possession of firearm
  7. Juror misconduct
  8. Improper admission of rebuttal evidence
State v. Drake Kettler, No. 103,272 (Shawnee)
Direct appeal; First-degree (premeditated) murder
Nancy Ogle
[Affirmed; Luckert; May 23, 2014]
  1. Improper denial of Batson challenge
  2. Improper prosecutorial argument
  3. Insufficient evidence of premeditation and conspiracy
State v. Kelvin Phillips, No. 103,399 (Shawnee)
Direct appeal; First-degree (premeditated) murder
Gerald E. Wells
[Affirmed; Luckert; May 23, 2014]
  1. Double Jeopardy violation (failure to declare mistrial in first trial)
  2. Improper prosecutorial argument
  3. Insufficient evidence
September 11--Wednesday--a.m.

State v. Melvin Frierson, No. 103,304 (Sedgwick)
Direct appeal (petition for review); Agg robbery
Heather R. Cessna
[Affirmed; Beier; Feb. 28, 2014]
  1. Insufficient evidence of alternative means
  2. Improper denial of motion in limine
  3. Failure to instruct on battery as lesser of robbery
  4. Improper modification of restitution award
State v. Calvin Charles, No. 102,981 (Reno)
Direct appeal (petition for review); Agg burglary
Meryl Carver-Allmond
[Affd/Vacd; Beier; Feb. 28, 2014]
  1. Insufficient evidence of alternative means
  2. Insufficient evidence of theft convictions
  3. Improper modification and determination of restitution award
State v. Anthony Hall, No. 102,495 (Shawnee)
Sentencing appeal (petition for review)
Jennifer E. Bazin (brief); Jonathan B. Phelps (argue)
[Affirmed; Beier; Feb. 28, 2014]
  1. No jurisdiction to impose restitution after sentencing
  2. Improper calculation of restitution
State v. Ira Flynn, No. 103,566 (Sumner)
Direct appeal (petition for review); Rape
Heather R. Cessna
[Rev/Rmd; Moritz; July 11, 2014]
  1. Improper failure to give Bunyard instruction
September 12--Thursday--a.m.

State v. George Brooks, No. 102,452 (Shawnee)
Direct appeal (petition for review); Rape
Lydia Krebs
[Affirmed; Rosen; Jan. 24, 2014]
  1. Insufficient evidence of rape
  2. Insufficient evidence of breach of privacy
State v. Armando Nunez, No. 102,377 (Finney)
Direct appeal (petition for review); Rape
Ryan Eddinger (brief); Deborah L. Hughes (argue)
[Affirmed; Rosen; Jan. 24, 2014]
  1. Insufficient evidence of alternative means
  2. Improper admission of defendant's statements
State v. Daniel Brown, No. 105,678 (Atchison)
Direct appeal; Rape
Rachel L. Pickering
[Affd/Vacd; Johnson; Feb. 28, 2014]
  1. Improper acceptance of jury verdict
  2. Failure to instruct on essential element of offense
  3. Insufficient evidence
  4. Improper prosecutorial argument
September 13--Friday--a.m.

State v. Michael Akins, No. 105,809 (McPherson)
Direct appeal; Agg Indecent Liberties
Daniel E. Monnat
[Rvd/rmd; Nuss; Jan. 10, 2014]
  1. Prosecutorial misconduct
  2. Improper exclusion of prior false allegations
  3. Failure to give written unanimity instruction
  4. Failure to poll jury
  5. Disproportionate sentence
State v. Christy Owen, No. 102,814 (Sedgwick)
Direct appeal (petition for review); Forgery
Meryl Carver-Allmond
  1. Insufficient evidence of alternative means of forgery
  2. Insufficient evidence of identity theft
State v. Stephen Foster, No. 104,083 (Shawnee)
Direct appeal (petition for review); Forgery
Heather R. Cessna
[Affirmed; Johnson; Nov. 15, 2013]
  1. Insufficient evidence of forgery
State v. Ryan Powell, No. 102,749 (Greenwood)
Direct appeal (petition for review); Felony theft
Korey A. Kaul
[Rvd/Rmd; Biles; June 6, 2014]
  1. Improper application of good-faith exception
  2. Statute does not authorize warrant for blood