Saturday, October 26, 2013

December 2013 KSC Docket

Here are the criminal cases on the KSC docket for December 9-12, 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.
December 9--Monday--a.m.
State v. Matthew Astorga, No. 103,083 (Leavenworth)
Remand from United States Supreme Court
Randall L. Hodgkinson
[Affd/Rvd/Vacd; Mortiz; May 23, 2014]
  1. Hard-50 sentence violates Alleyne
State v. Robert Stevenson, No. 104,115 (Sedgwick)
Direct appeal (petition for review); Possession
Rick Kittel
  1. Failure to suppress evidence
State v. Sharon Huddleston, No. 106,273 (Sedgwick)
Direct appeal; First-degree murder
Meryl Carver-Allmond
[Affirmed; Luckert; Feburary 14, 2014]
  1. Prosecutorial misconduct
  2. Improper admission of jailhouse letters
State v. Jimmy Murdock, No. 104,533 (Shawnee)
Sentencing appeal (petition for review)
Ryan Eddinger (brief); Patrick H. Dunn (argue)
[Rvd/Rmd; Biles; May 2, 2014]
  1. Improper scoring of priors as person felonies
December 10--Tuesday--a.m.
State v. Kelvin Gibson, No. 106,646 (Wyandotte)
Direct appeal; First-degree murder
Michael J. Nichols
[Affirmed; Biles; April 18, 2014]
  1. Denial of motion to suppress statements
  2. Failure to allow defendant to testify at suppression hearing
State v. Juan Lopez, No. 105,601 (Wyandotte)
Direct appeal; First-degree murder
Michael G. Highland
[Affirmed; Johnson; May 9, 2014]
  1. Insufficient evidence
  2. Improper use of prior acquittal for sentencing
  3. Improper weighing of aggravating and mitigating factors for hard-50
State v. Delbert McBroom, No. 106,689 (Osborne)
Direct appeal; First-degree murder
Gerald E. Wells
[Affirmed; Rosen; June 6, 2014]
  1. Failure to change venue
  2. Insufficient evidence
State v. Robert Clark, No. 105,613 (Shawnee)
Direct appeal; Agg indecent liberties
Rachel L. Pickering
[Affd/Vacd/Rmd; Luckert; Feburary 7, 2014]
  1. Insufficient evidence of intent
State v. Eldier Molina, No. 105,228 (Wyandotte)
Direct appeal; First-degree murder
Michelle A. Davis
[Affd/Vacd; Moritz; May 30, 2014]
  1. Failure to give limiting instruction (bad acts)
  2. Failure to give lesser-included offense on voluntary manslaughter
  3. Improper consecutive sentences
  4. Improper weighing of aggravating and mitigating factors for hard-50
December 11--Wednesday--a.m.
State v. Michael Hensley, No. 102,421 (Seward)
Direct appeal (petition for review); Criminal restraint
Randall L. Hodgkinson
[Affirmed; Johnson; April 25, 2014]
  1. Whether criminal restraint is a lesser of kidnapping
State v. Gary Morningstar, No. 103,433 (Sumner)
Resentencing appeal (petition for review)
Elaine M. Esparza
[Affimed; Biles; July 18, 2014]
  1. Improper resentence to consecutive sentences on remand
  2. Whether agg battery is a lesser included offense of child abuse

Sunday, October 13, 2013

Continued detention not a voluntary encounter

Michael C. Hayes won in State v. Kantor, No. 109,057 (Kan. App. Sept. 20, 2013)(unpublished), affirming Judge Nafziger's suppression order in a Jefferson drug prosecution.  Evidence was obtained after officers stopped and detained a driver.  The COA majority agreed with Judge Nafziger (1) that it was a detention and not a voluntary encounter, (2) that the officers improperly extended the stop, and (3) that officers lacked reasonable suspicion or voluntary consent for the extended detention:
Here, Clark returned Kantor's driver's license and insurance card before they exited the patrol car. Clark lawfully extended the traffic stop by asking Kantor to stand 10 feet in front of his vehicle during the interference with law enforcement investigation. Clark removed Martynowicz from Kantor's vehicle before approaching Kantor, who was standing alone in a ditch beside a rural road at nighttime. At that point, Clark had no reasonable suspicion of criminal activity as to Kantor. Clark was walking toward and shining his flashlight on Kantor when he told him he was “not in any trouble” and was “free to go.” In the same breath, and without any physical disengagement, Clark asked Kantor if there was “anything illegal in the car” and if he could “search it real fast.” Clark was blocking Kantor's path to his vehicle when he asked these questions. Finally, Clark was not the only officer present and the other officer's emergency lights were flashing.
These factors establish that the encounter was an extension of the seizure and Kantor's consent was involuntarily given. The strongest factor is Clark's complete failure to temporally or physically disengage from Kantor. A reasonable person would not have felt free to disregard Clark's questions, get in his or her car, and drive away.
[Update: the state filed a PR on October 21, 2013.]

[Further update: the KSC denied the state's PR and the mandate issued on December 30, 2013.]

Sunday, October 06, 2013

New Kansas Federal Defender Blog

The Federal Public Defender for the District of Kansas has launched a new blog, available at .  According to the blog's first post, the "contributors will include Melody Evans, the new Federal Public defender for Kansas, the erudite if wordy Tom Bartee, Kirk Redmond, Tim Henry, Sandy Schnack, and all the guest bloggers we can rope into contributing." 

The blog's aim will be "to present an active discussion of issues including the sentencing guidelines, substantive criminal law, evidence, the Bureau of Prisons, and developing intersections between technology and the law, with perhaps a dash of neuroscience thrown in."  Similar to the old blog, it should be a helpful resource for anyone wanting to stay up to date on federal criminal defense issues in the district.