Friday, December 26, 2014

Cannot dilute jury nullification

Lydia Krebs and Samuel Schirer won in State v. Smith-Parker, No. 105,918 (Kan. Dec. 24, 2014), obtaining a new trial in a Saline County first-degree murder prosecution.  The case actually involves two different incidents that were joined for one trial.  The KSC rejected sufficiency, alternative means and consolidation claims, but agreed with several claims.

First, the KSC held that the district court improperly excluded some defense evidence under the Confrontation Clause, which is pretty straightforward since the Confrontation Clause only protects accused persons.  The KSC also held that the proffered statements were not admitted for the truth of the matter asserted and thus were not hearsay.

Next, the KSC held that the district court erred when a juror was dismissed, ostensibly because of his inability to understand English, and an alternate juror was seated.  Instead of telling the jury to begin deliberations anew, the district court merely told the jury to continue deliberations.

After conviction, the district court received a letter from the dismissed juror stating that he was actually dismissed because he had voted for the defendant in the jury room and that the presiding juror's claim regarding inability to understand English was a pretext.  The KSC agreed that, at least the dismissed juror and the presiding juror should have been recalled:
N.B.'s unsolicited letter contradicted at least the impression left, if not deliberate misinformation imparted, by the presiding juror during trial and in a posttrial affidavit. Although N.B.'s voir dire responses may also have contributed to a context ripe for misunderstanding by the district judge, they did not resolve the contradiction between his later letter and the presiding juror's later representations. Indeed, we see no way the contradiction could have been resolved short of calling N.B. and the presiding juror back into the courtroom to testify live about events during deliberations. Their competing versions of those events could then be fully explored, their credibility fully evaluated, and a factual determination made as to whether any jury misconduct occurred. This was what the defense sought, and it was entitled to it. Failure to recall at least N.B. and the presiding juror was error.
Last, the KSC agreed that a reasonable doubt instruction that told the jury that if it did not have a reasonable doubt, "you will enter a verdict of guilty" improperly stated the law.  While the KSC reiterated that a jury need not be instructed regarding nullification, the court's instruction should not interfere with that right:
Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge's instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification.  Both the wording of the instruction at issue in Lovelace—"must"—and the wording at issue here—"will"—fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.
The KSC held that together these issues required a new trial:
The State's evidence against Smith-Parker cannot be characterized as overwhelming. The evidence of Smith-Parker's premeditation in the murder of Mack was purely circumstantial. The evidence of exactly how Letourneau came to be shot in the head was conflicting, far from conclusive. The district judge's erroneous exclusion of Yanik-Ducharme's testimony about Letourneau's statement prevented Smith-Parker from presenting one of the few pieces of evidence he had to corroborate at least one of his versions of the events.
In addition, the three other errors we have identified are serious. Each calls into question the fairness of the trial that Smith-Parker received. The instruction error and the failure to tell the jury to begin its deliberations anew with the alternate juror incorrectly informed the jury about how to pursue its deliberations. The failure to recall N.B. and the presiding juror to testify live prevented a full investigation of whether jury misconduct occurred.
This last issue is particularly interesting to me.  Regardless of the evidence, a jury can always acquit.  Instructions (and arguments) that dilute that right must be improper.  This holding may also have some implications with regard to analysis of lesser-included offense instruction requests.

Sunday, December 21, 2014

Counterfeit bills are not written in your own name

Washburn student intern Ashley Green and I won in State v. Greathouse, No. 110,344 (Kan. App. Nov. 26, 2014)(unpublished), reversing an Atchison County making a false writing conviction.  The state alleged that Mr. Greathouse attempted to use some counterfeit bills to pay bail for another person.  The case turns on the difference between forgery and making a false writing:
Our Supreme Court has summarized the elements of forgery as requiring that “(1) [the defendant] made a writing, (2) so it appeared to have been made by another, and (3) with the intent to defraud.” As such, the two crimes have been construed in such a way that forgery requires a writing in the name of another while making false information is a writing in one's own name or concerning oneself. This distinction has been the source of some confusion over the years.
The COA agreed that counterfeit bills are not made in one's own name:
Here, the facts alleged by the State put this case in the same category as the facts alleged in Rios and Gotti. Greathouse was accused of making or distributing counterfeit bills to bail someone out of jail. Like in Rios and Gotti, the counterfeit instruments did not contain information related to the defendant's own business or concerns, nor were they made in the writer's own name. The instruments were simply counterfeit legal tender. These facts would support a conviction for forgery. Because forgery and making false information are mutually exclusive crimes, the State failed to present sufficient evidence to support a conviction of making false information.
[Update: the state did not file a PR and the mandate issued on January 30, 2014.]

Saturday, December 20, 2014

January 2015 KSC docket

Here are the criminal cases on the KSC docket for January 26-30, 2015.  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 at the appellate court website (here) and archived (here)if you would like to watch any of these arguments.
January 26--Monday--a.m.
Robert Dumler v. Kansas Dep't of Revenue, No. 106,748 (Russell)
Direct appeal (petition for review); DUI administrative
Michael S. Holland, II
[Rvd/rmd; Johnson; July 24, 2015]
  1. Denial of statutory right to consult counsel after breath test
State v. Samuel Reed, No. 106,807 (Sedgwick)
Direct appeal (petition for review); Attempted first-degree murder
Richard Ney
[Affd/Vacd; Beier; June 19, 2015]
  1. Public trial violation
  2. Improper vouching
  3. Improper admission of gang evidence
  4. Prosecutorial misconduct
State v. Michael Williams, No. 109,353 (Sedgwick)
Direct appeal; First-degree murder
Deborah Hughes (brief); Michelle A. Davis (argue)
[Affirmed; Stegall; January 8, 2016]
  1. Improper exclusion of victim's prior act of violence
  2. Failure to disclose exculpatory evidence
  3. Failure to give lesser-included offense instruction
  4. Prosecutorial misconduct
State v. David Moncla, No. 110,549 (Sedgwick)
Motion to correct illegal sentence
Carl Maughan
[Affirmed; Beier; March 6, 2015]
  1. Unconstitutional hard-40 sentence was illegal

January 27--Tuesday--a.m.

State v. Kaston Hudgins, No. 108,599 (Cherokee)
Direct appeal; Felony murder
Randall L. Hodgkinson
[Affirmed; Biles; April 3, 2015]
  1. Failure to change venue
  2. Improper judicial criticism of counsel
  3. Prosecutorial misconduct
  4. Improper exclusion of defense evidence of police pursuit policy
  5. DUI manslaughter more specific than felony murder
State v. Harold Ford, No. 109,806 (Johnson)
Motion to correct illegal sentence
Krystal L. Vokins (brief); Richard Ney (argue)
[Revd/Rmd; Luckert; July 31, 2015]
  1. Lack of jurisdiction due to incompetency to stand trial

January 28--Wednesday--a.m.

State v. Francisco Estrada-Vital, No. 107,324 (Finney)
Direct appeal (petition for review); Possession
Randall L. Hodgkinson
[Affirmed; Johnson; August 21, 2015]
  1. Fourth Amendment violation (exceeded scope of stop)
  2. Improper burden of proof instruction

January 29--Thursday--a.m.

State v. Kyree McClelland, No. 109,044 (Shawnee)
Direct appeal; Felony murder
Rachel L. Pickering (brief); Peter Maharrry (argue)\
[Affd/Vacd; Rosen; April 24, 2015]
  1. Insufficient evidence of alternative means
  2. Overbroad jury instruction
  3. Sentence violates "double-double" rule
State v. Gustin Brownlee, No. 110,262 (Wyandotte)
Direct appeal; First-degree murder
Michelle A. Davis
[Affirmed; Beier; August 7, 2015]
  1. Statutory speedy trial violation
  2. Failure to give lesser included offense instruction
  3. Prosecutorial misconduct
  4. Improper statements from state witnesses

January 30--Friday--a.m.

State v. Jodi Laborde, No. 107,872 (Clay)
Direct appeal (petition for review); Theft
Randall L. Hodgkinson
[Reversed; per curiam; November 6, 2015]
  1. Insufficient evidence of theft by deception
State v. David Sprauge, No. 108,062 (Saline)
Direct appeal; First-degree murder
Heather R. Cessna
[Affd/Vacd; Stegall; December 4, 2015]
  1. Failure to give unanimity instruction
  2. Failure to investigate pro se motion claiming IAC
  3. Prosecutorial misconduct
  4. Insufficient evidence of aggravating factors for hard-50 

Sunday, December 14, 2014

Proof of prior violates Descamps

Patrick H. Dunn won in State v. Martinez, No. 110,186 (Kan. App. Nov. 21, 2014), obtaining a new sentencing hearing in a Sedgwick County failure to register prosecution.  The issue had to do with how to classify violations of Wichita city ordinance regarding failure to comply with bond conditions.  The district court had compared it to a state conviction for violation of a protective order.  The COA agreed that the offenses were comparable, but further held that such classification would violate Descamps (blogged about here):
Here, in order to avoid engaging in forbidden judicial factfinding, we must examine whether the elements of the prior offense at issue, Wichita Municipal Ordinance § 1.04.125, match the elements of the corresponding "generic" offense, K.S.A. 1996 Supp. 21-3843(a)(4). The State argues because the ordinance is a divisible one, the modified categorical approach applies. Martinez argues the ordinance is broader than the misdemeanor statute and the elements do not match. Martinez also argues another ordinance is much more analogous. 
We think it irrelevant that another ordinance may be more analogous to the misdemeanor statute in question. If the elements of the municipal ordinance match those in the misdemeanor statute, then Martinez' Sixth Amendment rights are satisfied and it matters not what another ordinance may state. When reviewing both, it would appear that although the municipal ordinance is broader, contained within the ordinance are elements which prohibit contact with a third person, appearing to match the elements contained in the statute and suggesting that the modified categorical approach is applicable. 
The operative language in the violation of a protective order statute, K.S.A. 1996 Supp. 21-3843(a)(4), "orders the person to refrain from having any direct or indirect contact with another person . . . ." In comparison, Wichita Municipal Ordinance § 1.04.125(1)(a) sets out alternative versions of the "Failure to Comply" crime under § 1.04.125(2). That is, the ordinance prohibits persons released from custody from knowingly violating or knowingly failing to comply with (a) "restrictions on [their] association (including no contact orders with the victim or others)" or (b) "place of abode." Alternative (a) matches the element in the misdemeanor statute, but alternative (b) does not. Therefore, in order to determine whether Martinez was convicted under alternative (a), we are permitted to examine in the record the appropriate extra-statutory materials. 
The COA concluded that in order to prove that the municipal conviction fell into the state statute, additional an improper judicial factfinding was required:
At sentencing, the prosecutor provided the court with documents relating to Martinez' three municipal convictions for failing to comply with bond restrictions. Significantly, we note the record reveals that Martinez had five other person misdemeanors which were converted for criminal history purposes; thus, only one of his convictions for failure to comply with bond restrictions needed to qualify as a person misdemeanor in order to place Martinez in criminal history category B. Our review of the documents in the record leaves us uncertain whether Martinez' 1997 failure to comply with bond restrictions involved prohibited third person contact; therefore, we must vacate the defendant's sentence and remand the matter to the district court for a further examination of the appropriate extra-statutory materials to explore this question.
[Update: the state did not file a PR and the mandate issued on December 29, 2014.]

Sunday, November 16, 2014

Statements obtained with poor translation are involuntary and hearsay

Branden A. Bell and Sarah G. Hess won in State v. Fernandez-Torres, No. 110,645 (Kan. App. Oct. 24, 2014) affirming Judge Kittel's suppression order in a Douglas County aggravated indecent liberties prosecution. 

Mr. Fernandez-Torres was not in custody and had received at least some (albeit somewhat unclear) Miranda warning, so the only issue was the voluntariness of his incriminating statements obtained when an officer was being used as a Spanish-translator during an interrogation.  The district court found that the statements were not the product of Mr. Fernandez-Torres free and independent will.  The COA held that evidence supported that finding:
The district court was particularly troubled by the last two enumerated factors: the fairness of the interrogation and Fernandez' fluency in English. We share that concern. In this case, the two factors are closely related, so we discuss them together.
Fluency in English typically comes into play when a suspect is literate in some other language but is interrogated in English.  Illustrating the seamlessness of the generically labeled factors, fluency would also be implicated if a suspect knew only English but his or her mental incapacity substantially impaired his or her ability to communicate. That situation might also bear on mental condition and, possibly, intellect. This case presents a variant because Brixius sought out a translator, so the interrogation could be conducted in Spanish—Fernandez' primary language, although Fernandez understands some spoken English. 
To be plain about it, Marino lacked the bilingual capacity and the training to function effectively as a translator in an extended interrogation about a sex crime against a child. The two experts agreed that Marino mistranslated both questions and answers and sometimes substantially paraphrased what was being said. The district court's expressed concern about whether Brixius and Fernandez were fully communicating in an effective way finds sufficient support in the record evidence.
 . . . .
Brixius' interrogation approach effectively informed Fernandez both that the police had irrefutable scientific evidence that he had touched A.L.G.'s vagina and that if he had done so only for a second his actions were "okay" and could be dealt with. The underlying message to Fernandez was this: We have overwhelming evidence against you, but if you tell us you did it just briefly, nothing much will happen to you. Brixius maneuvered Fernandez into a situation in which yielding to the suggestion would seem to carry a material benefit, though quite the reverse was true. An unwary or pliable subject—Fernandez, based on the district court's findings, fit that bill—could be induced to accede to the suggested version of events because it looked to be convenient, compliant, and advantageous. In that situation, a suspect may no longer be especially concerned about falsity of the statement. The interrogation strategy lures the subject in, snares him or her with representations about the strength of the evidence (that may or may not have any basis in fact), and then offers what appears to be a way out through admissions deliberately and incorrectly cast as significantly less legally and morally blameworthy than alternative explanations of the evidence.
. . . .
In this case, looking at the whole of the circumstances, we conclude, as did the district court, that the inculpatory statements Fernandez made to Brixius were sufficiently tainted by the interrogation process and Fernandez' vulnerability to be something less than freely given.
The COA also agreed that, because the district court could properly conclude that the statements were likely false, the statements were inadmissible hearsay under K.S.A. 60-460(f)(2)(B).

[Update: the state did not file a PR and the mandate issued on December 1, 2014.]

Saturday, November 15, 2014

Incriminating nature of Q-tips not apparent

Rick Kittel won in State v. Rice, No. 110,396 (Kan. App. Oct. 24, 2014)(unpublished), obtaining a suppression order in a Lyon County drug prosecution.  The case involved the seizure of some Q-tips seen in plain view after officers were given consent to enter an Emporia apartment as part of a DCF home check.  After the Q-tips tested positive for methamphetamine, officers obtained a warrant and discovered other evidence of drugs and paraphernalia.  The COA agreed that the Q-tips and the evidence derived from the Q-tips should have been suppressed:
The seizure of the Q-tips in this case cannot be upheld under the plain-view exception because their incriminating nature was not apparent without conducting some further search of the Q-tips, i.e ., seizing the Q-tips for further observation and field testing.  According to Officer Sage, at a glance, the Q-tips did not appear to be discolored. It was not until they were actually seized that a discoloration was observed. And it was not until the Q-tips were tested that it was clear they were contaminated with methamphetamine. Because of these facts, the plain-view exception does not apply.
Because none of the exceptions to a warrantless search and seizure existed at the time Officer Sage seized the Q-tips and had them tested, the warrantless seizure of the Q-tips was unconstitutional. Thus, the Q-tips found on the coffee table were inadmissible at trial under the exclusionary rule.
[Update: the state did not file a PR and the mandate issued on December 1, 2014].]

Sunday, November 09, 2014

Fifty-seven year payoff plan for forgery restitution an abuse of discretion

Reid T. Nelson won in State v. Herron, No. 110,047 (Kan. App. Oct. 24, 2014), obtaining a new restitution hearing in a Douglas County forgery case.  The only issue on appeal was whether the district court abused its discretion when it imposed a $6,864 restitution judgment.  The district court had questioned whether Ms. Herron could pay that amount of restitution, but deemed that, as a matter of law, it was unable to reduce or waive restitution upon a finding of inability to pay.  The COA majority disagreed:
Our court also has noted that "a defendant's ability to pay restitution is a relevant factor for a district court to consider in determining whether to order restitution and the proper amount."  That's consistent not only with Schulze, but also with Goeller, where the Kansas Supreme Court noted that it was the defendant's responsibility to come forward with evidence of his inability to pay. If a defendant's inability to pay wasn't intended to be a compelling circumstance that could justify excusing or reducing restitution payments, then the Supreme Court would not have explained that the defendant is responsible for introducing such evidence. If the ability to pay restitution didn't impact restitution, then the evidence Goeller was criticized for not introducing would not even have been relevant. 
We do not suggest that poverty alone is always a compelling circumstance that should relieve a defendant of the obligation to pay restitution, but poverty alone can justify a decision to not impose restitution or to reduce it. In assuming that it could not, the district court made an error of law and thus abused its discretion by not considering whether Herron's poverty made the amount of restitution she was ordered to pay unworkable.
The COA went on to analyze whether requiring the district court abused its discretion by holding that $6,864 restitution in this case was workable:
Herron's case is similar to Burke or Orcutt. Like in Burke, if Herron paid the $10 per month the State suggested, she would be making payments for 57 years—an inordinately long time compared to her 18-month probation. Herron was 33 years old at the time the court ordered restitution. While her probation could be extended (giving the court supervisory power over her until payments were made), it's not reasonable to keep someone under court supervision to make restitution payments for 57 years. By contrast, if Herron attempted to pay the restitution she owed during her 18-month probation, she would be paying $381.34 per month, which would constitute more than half of her total income—obviously an unworkable situation at her income level. 
The COA majority did not determine what would be workable, but simply held that the plan entered (requiring more than half of Ms. Herron's meager income) was an abuse of discretion.

[Update: the state filed a PR on November 20, 2014.]

[Further update: the KSC denied the state's PR and the mandate issued on January 16, 2015.]

Sunday, November 02, 2014

Public defender appointed as district judge

Here is the governor's press release announcing the appointment of Paul Hickman, Deputy Public Defender from the Salina Regional Public Defender's Office as district judge:
“I’d like to thank Paul for his willingness to serve his community in this capacity,” said Governor Brownback. “With his experience as both a prosecutor and a public defender, he will be an excellent asset to the 28th Judicial District.”
Congratulations and best wishes Paul!

[Here is coverage of Judge Hickman's investiture from the Salina Journal.]

Saturday, November 01, 2014

Defense attorneys must communicate with client regarding continuances

Michael P. Whalen won in Sola-Morales v. State, No. 104,288 (Kan. Oct. 24, 2014), obtaining an evidentiary hearing with regard to Mr. Sola-Morales' IAC claim.  Specifically, Mr. Sola-Morales claimed that his trial attorney had lied to him regarding continuances and that, as a result, he had lost his statutory right to a speedy trial.  The KSC recognized that for purposes of determining whether to have a hearing, the district court (and a reviewing court) have to assume that the allegations in the petition are true.  And when it did this, it determined that if trial counsel had lied to Mr. Sola-Morales regarding the continuance, he might have lost his ability to independently object to the continuances:
Here, because of trial counsel's alleged conduct, Sola-Morales appeared to have lost any opportunity to timely and "strenuously object" to continuances his counsel proposed and later received. See State v. Hines, [269 Kan. 698, 700 7 P.3d 1237 (2000)]. Sola-Morales also appeared to have lost any opportunity to "speak out against" the continuances, e.g., to advise the court of his opposition. See [State v. Arrocha, 30 Kan. App. 2d 120, 127, 39 P.3d 101 (2002)]. So he arguably may also have lost any opportunity to avail himself of the arguments, rationale, and holding in Hines, as corroborated in Arrocha. As Sola-Morales argues in his petition for review, counsel's lies—and other questionable conduct—seemingly prevented him from participating in his own defense.
The KSC recognizes that, under its own case law, communication with the client about continuances is necessary and, failure to communicate may result in a conflict of interest and ineffective assistance of counsel

December 2014 KSC docket

Here are the criminal cases on the KSC docket for December 8-12, 2014.  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 at the appellate court website (here) and archived (here)if you would like to watch any of these arguments.

December 8--Monday--a.m.

State v. William Barber, Jr., No. 106,911 (Cherokee)
Direct appeal (petition for review); Aggravated battery
Michelle A. Davis
[Affirmed; per curiam; July 10, 2015]
  1. Improper admission of bad acts evidence
  2. Erroneous limiting instruction on bad acts evidence
  3. Improper closing argument
  4. Improper acceptance of verdict without confirming accuracy
State v. Michelle Bolze-Sann, No. 105,297 (Shawnee)
Direct appeal (petition for review); Involuntary manslaughter
Rick Kittel
[Affirmed; Luckert; June 19, 2015]
  1. Insufficient evidence
  2. Failure to dismiss for failure to show mens rea
  3. Denial of right to be present and Public Trial in response to jury question
  4. Insufficient evidence of alternative means of involuntary manslaughter
  5. Failure to define "imminence"
  6. Failure to give instruction related to consideration of regulation
  7. Failure to grant mistrial after intimidation of witness
  8. Improper acceptance of verdict without confirming accuracy
State v. Mark Alexander, No. 107,410 (Shawnee)
Sentencing appeal (petition for review)
Christina M. Kerls
[Petition for review withdrawn Jan. 13, 2015]
  1. Improper sentencing to DOC rather than placement at LSH
December 9--Tuesday--a.m.

State v. Ramon Rodriguez, No. 106,731 (Johnson)
DNA testing appeal (petition for review)
Michael J. Bartee
[Affirmed; Nuss; June 5, 2015]
  1. Failure to make findings of fact and conclusions of law
  2. Failure to grant new trial based on new forensic DNA testing
State v. Daniel Parker, No. 111,044 (Riley)
Direct appeal; First-degree murder
Lydia Krebs (brief); Peter Maharry (argue)
[Affirmed; Rosen; March 6, 2015]
  1. Improper closing argument
State v. Jason Brammer, No. 106,696 (Marshall)
Direct appeal (petition for review); DUI manslaughter
Corrine E. Johnson
[Affirmed; Biles; Feb. 20, 2015]
  1. Insufficient evidence of alternative means
  2. Failure to instruct on proximate cause
  3. Erroneous lesser-included offense instructions
State v. Carl Vrabel, No. 108,930 (Johnson)
State appeal (petition for review)
Jonathan A. Bortnick
[Rvd/rmd; Johnson; April 24, 2015]
  1. Suppression of controlled buy by officer outside of jurisdiction
December 11--Thursday--a.m.

State v. Jerry Sellers, No. 109,080 (Harvey)
Direct appeal (petition for review); Agg indecent liberties
Michael P. Whalen
[Affirmed; Beier; March 6, 2015]
  1. Failure to grant motion for arrest of judgment
State v. Jerold Dunn, No. 106,586 (Labette)
Direct appeal (petition for review); Forgery/stalking
Rick Kittel
[Affirmed; July 15, 2016]
  1. Defective complaint (forgery)
  2. Insufficient evidence (stalking)
State v. Justin Dern, No. 106,406 (Pottawatomie)
Direct appeal (petition for review); Agg criminal sodomy
Heather R. Cessna
[Affd/Rvd; Stegall, Nov. 22, 2015]
  1. Improper admission of prior bad act evidence
  2. Failure to suppress confession
  3. Insufficient evidence of alternative means
  4. Insufficient evidence
  5. Improper burden of proof instruction
December 12--Friday--a.m.

State v. Tommy James, No. 106,083 (Franklin)
Direct appeal (petition for review); Possession with intent
Randall L. Hodgkinson
[Rvd/rmd; Stegall; May 8, 2015]
  1. Improper search of cell phone
  2. Improper admission of text messages
  3. Improper admission of officer testimony regarding text messages
  4. Improper prosecutorial comment
  5. Insufficient evidence of intent to distribute
State v. Larry Overman, No. 105,504 (Cherokee)
Direct appeal (petition for review); Manufacture
Matthew J. Edge (brief); Joanna Labastida (argue)
[Affirmed; Johnson; April 17, 2015]
  1. Failure to suppress evidence
State v. Cody Funk, No. 107,422 (Cloud)
Sentencing appeal (petition for review)
Gerald E. Wells
[Affirmed; Biles; May 15, 2015]
  1. Lifetime post-release is Cruel and Unusual

Friday, October 31, 2014

Hodgkinson inducted as Fellow in presigious appellate group

Randall Hodgkinson, creator and co-author of this blog, has been inducted as a Fellow in the American Academy of Appellate Lawyers (AAAL).  As explained here, induction into the AAAL is by invitation only and is limited to 500 members in the United States.  Academy Fellows must have been in appellate practice for at least 15 years, and only lawyers with a reputation for the highest excellence in appellate work and unblemished integrity are invited to membership. 

Randall is a Visiting Assistant Professor of Law at Washburn Law School, primarily teaching Criminal Appellate Advocacy.  He has been a teacher and mentor to many lawyers (including this blogger during my time at the ADO).  And this type of recognition and praise is certainly well deserved. 

Sunday, October 26, 2014

Insufficient evidence of "sudden quarrel" for voluntary manslaughter as lesser

Adam D. Stolte won in State v. Gooding, No. 110,352 (Kan. App. Oct. 3, 2014), obtaining reversal of a Sedgwick County voluntary manslaughter conviction.  The state charged Ms. Gooding  with premeditated first-degree murder, but a jury convicted of voluntary manslaughter as a lesser-included offense.  The appeal turned on whether there was sufficient evidence of a "sudden quarrel," which is an element of voluntary manslaughter.  The state did not argue that there was sufficient evidence, but did argue that Ms. Gooding had invited the error by requesting a lesser-included offense instruction or in the alternative, that the conviction should be upheld because evidence supported a greater offense.

The COA noted that Ms. Gooding had not requested "sudden quarrel" voluntary manslaughter, but had only requested "heat of passion" voluntary manslaughter, which was not given. The COA went on to review KSC precedent defining sufficient provocation and noting that mere words and gestures cannot suffice, but must constitute "severe" provocation.  Reviewing the record, the COA held that the state had not introduced evidence of such provocation:
Gooding's argument with Mills, by all accounts, consisted of angry words, cursing, and gestures stemming from Mills' belief that Gooding wrongfully left him behind. Through it all, Gooding maintained that she stayed calm and tried to get away from the situation. Our Supreme Court has repeatedly held that mere words or gestures, however insulting, do not constitute adequate provocation to support a conviction of voluntary manslaughter. Even when considered in a light most favorable to the State, the evidence presented concerning Gooding's argument with Mills failed to establish provocation sufficient to cause an ordinary person to lose control of his or her actions and reasons.
Finally, the COA considered the state's argument that the conviction should be upheld because evidence supported a conviction of a greater offense.  The COA either rejected or distinguished previous cases that had upheld convictions for voluntary manslaughter:
The decision in Harris did not address the language in Kansas Supreme Court decisions stating that the rule applies only when all the elements in the lesser offense are included in the greater offense.
Even if Harris was correctly decided at the time, subsequent legislative changes have negated the court's holding. When Harris was decided, there was no distinction under the criminal code between an intentional act and a knowing act. As Gooding points out, the terms "intentionally" and "knowingly" now are separated and ranked by degree, with "intentionally" being ranked as a higher degree of culpability than "knowingly." Second-degree murder is still defined as the killing of a human being committed intentionally. Voluntary manslaughter is now defined as the knowing killing of a human being committed upon a sudden quarrel or in the heat of passion.
When Harris was decided, the sole distinction between intentional second-degree murder and voluntary manslaughter was the presence of mitigating circumstances, i.e., sudden quarrel or heat of passion. So when Harris was decided, if the defendant was found guilty of voluntary manslaughter but it was later determined that there was insufficient evidence to instruct the jury on sudden quarrel or heat of passion, an appellate court could still conclude, without engaging in any judicial fact-finding, that the evidence was sufficient to convict the defendant of the greater offense of intentional second-degree murder. Any error in instructing the jury on voluntary manslaughter was harmless and worked in the defendant's favor. 
Now if a defendant is found guilty of voluntary manslaughter but there was insufficient evidence to instruct the jury on sudden quarrel or heat of passion, it does not necessarily follow that the evidence was sufficient to convict the defendant of the greater offense of intentional second-degree murder. The premise of the Harris rule is that a voluntary manslaughter conviction will stand absent evidence of sudden quarrel or heat of passion, "as long as evidence was sufficient to convict the defendant of second-degree intentional murder."
Because insufficient evidence supported the voluntary manslaughter conviction, the COA reversed and remanded with directions to discharge.

[Update: the state filed a PR on October 24, 2014.]

[Further update: the KSC denied the state's PR and the mandate issued on January 16, 2015.]

Saturday, October 25, 2014

Failure to instruct on defense and improper argument combine to require new trial

Washburn intern Jessica Dotter and I won in State v. Ortega, No. 106,210 (Kan. Oct. 3, 2014), obtaining a new trial in a Finney County attempted aggravated interference with parental custody prosecution stemming from Ms. Ortega's attempt to take custody of her children from a school after SRS had taken custody of them.  The COA had already ruled that the district court erred by failing to give instructions on mistake of fact (i.e. Ms. Ortega did not know that she could not take custody of her own children), by failing to give a lesser-included offense instruction on attempted interference with parental custody, and for improper argument related to Ms. Ortega's mistake of fact.  A majority of the COA had held that these errors were harmless.  The KSC agreed with Chief Judge Malone, who had dissented, and held that a new trial was required.  In particular, because the instructions entirely failed to inform the jury regarding the effect of a mistake of fact, the jury was left without guidance, notwithstanding the defense ability to present evidence and argue the point:
Significantly, nothing in the trial informed the jury that Ortega's mistaken belief could be a valid defense. Contrary to the panel's conclusions and State's arguments, the elements instruction for attempted aggravated interference with parental custody did not provide this information—it simply instructed that intent was an element. Further, defense counsel's ability to present evidence and argue regarding the defense provided only part of what the jury needed. Without an instruction, the jury had no directions from the court about how to consider the information. Consequently, the only direction the jury received was misdirection in the form of the prosecutor's statement that the lack of notice was irrelevant and did not matter.

Because of the compounding effect of the errors in this case, the KSC applied a constitutional harmless error test and held that the state failed to prove beyond a reasonable doubt that the errors were harmless.

[Update: on remand, the prosecutor elected to not retry Ms. Ortega on the charge of attempted aggravated interference with parental custody and dismissed that charge.]

Sunday, October 12, 2014

Texas conviction for evading arrest is a nonperson offense

Samuel Schirer won in State v. Long, No. 110,852 (Kan. App. Sept. 19, 2014)(unpublished), obtaining a new sentencing hearing in a Shawnee County aggravated battery prosecution.  The only issue was the proper person/nonperson classification for a Texas conviction for evading arrest.  The answer to the question depended on which subsection of the Kansas offense of fleeing and eluding was most comparable:
As Long contends, K.S.A. 8–1568(a) covers the same criminal conduct as Tex. Penal Code Ann. § 38.04(b)(1) (Vernon 2001); both statutes prohibit a person from using a motor vehicle to flee from or evade a known police officer who is attempting to detain that person. A violation of K.S.A. 8–1568(b) requires additional conduct that is not included in the Texas statute.
The court looks to the most comparable Kansas offense to determine whether the conviction is classified as a person or nonperson crime.  Therefore, although K.S.A. 8–1568(b) may cover similar conduct as the Texas statute, K.S.A. 8–1568(a) is more comparable as it does not require additional actions beyond those required by the Texas statute. Accordingly, the district court should have classified Long's Texas conviction as a nonperson offense since a first conviction of K.S.A. 8–1568(a) is a nonperson offense.
[Update: the state did not file a PR and the mandate issued on October 23, 2014.]

Saturday, October 11, 2014

Evidence of later homicide is improper bad acts evidence

Joseph A. Desch won in State v. Macomber, No. 108,301 (Kan. App. Sept. 19, 2014)(unpublished), obtaining a new trial in a Shawnee County second-degree murder prosecution.  Mr. Macomber was accused of several crimes in three separate prosecutions.  In one prosecution, a jury had convicted him of attempted first-degree murder, criminal possession of a firearm, and other charges in Marshall County.   In another Marshall County prosecution, a jury convicted Mr. Macomber of kidnapping, aggravated burglary, criminal possession of a firearm, and other charges.  All of these offenses were alleged to have happened after Mr. Macomber fled from crimes committed in Shawnee County, the instant appeal.  In a third trial in Shawnee County, the state charged Mr. Macomber with first-degree murder and criminal possession of a firearm; a jury convicted Mr. Macomber of criminal possession of a firearm and second-degree murder, given as a lesser.

On appeal, Mr. Macomber claimed the Shawnee County criminal possession of a firearm prosecution violated the Double Jeopardy Clause.  The COA agreed:
Macomber's possession of a firearm consists of a unitary course of conduct, and because the legislature intended that the minimum unit of prosecution for violating K.S.A. 21–4204 is a single continuous act of possession, Macomber was subject to double jeopardy in this case and his conviction for criminal possession a firearm must be reversed.
During trial, the district court admitted evidence of the Marshall County homicide hours after the Shawnee County incident ostensibly to show the gun  in question worked.   The COA also agreed with Mr. Macomber that such evidence was irrelevant:
Here, we have no difficulty concluding that virtually none of the evidence presented to the jury concerning the encounter between Macomber and Salcedo was relevant to proving the particular disputed material fact—i.e., whether Macomber's gun was susceptible to an accidental discharge. Salcedo's professional history, Macomber's speeding, the ensuing chase, Macomber's aggressive assault and eventual shooting of Salcedo in the back, the damaged bulletproof vest, and Salcedo's lengthy recovery—none of this has any bearing whatsoever on the mechanical state of Macomber's gun.
Even if there was some vestigial relevance of the bare fact that the gun was discharged properly within a few hours of the Lofton shooting, when it is shorn of the irrelevant context, the evidentiary value of that fact approaches zero. As such, the evidence had virtually no probative value. On the other hand, it was highly prejudicial in character. The State presented evidence that Macomber pointed a gun at the head of a sympathetic young police officer (who thought he might die), forced him onto the ground, and shot the officer twice, once in the back. As such, the district court abused its discretion when it determined that the probative value of the evidence outweighed its potential for undue prejudice.
The COA held that because of the nature of the evidence and the repeated emphasis on that evidence, the error was not harmless and reversed the second-degree murder conviction and remanded for a new trial.

[Update: the state did not file a PR and the mandate issued on October 23, 2014.]

There's no place like home!

Just a quick post to note that Kansas Defender Carl Folsom returned to Kansas at the beginning of October.  Carl has spent a couple of years in the Muskogee office of the federal public defender office, first as a writing and research specialist and later as an assistant public defender.  Carl has taken a position in the Topeka office of the federal public defender office, so he'll be doing the same work, but back in Kansas, where he belongs!  Welcome back, Carl!

Friday, September 26, 2014

Pervasive Fifth Amendment violations support dismissal of grand jury indictment

James L. Eisenbrandt and Christina M. DiGirolamo, won in State v. Turner, No. 102,478 (Kan. Sept. 5, 2014), affirming Judge Lively's dismissal of a Wyandotte County indictment and prosecution for theft and presenting false claims stemming from a citizen-initiated grand jury proceeding.  Judge Lively dismissed the indictment after finding that the prosecutor improperly and repeatedly questioned Mr. Turner in the face of his repeated exercise of his privilege against self-incrimination, that the investigator improperly commented about Mr. Turner's exercise of his right, and that the investigator commented on an unrelated criminal matter.  The KSC agreed with Judge Lively.  The appellate case includes a primer on the constitutional privilege against self-incrimination.  It also includes a lot of information about grand jury practice (and contrasting inquisition practice). 
Granted, a grand jury does not determine the guilt or innocence of a defendant, like a petit jury, but the consequences of a grand jury indictment are serious. See K.S.A. 22-3011(3) ("Indictments found by the grand jury shall be presented by its presiding juror, in the jury's presence, to the court and shall be filed and remain as records of the court."). Moreover, the need to protect an accused individual's constitutional rights before factfinders who are not trained in the law and consequently do not know and understand those constitutional rights is precisely the same with a grand jury as it is with a petit jury.

The KSC concluded that the prosecutor's pervasive and repeated questioning in the face of invocation of the privilege and express commentary on that exercise violated the Fifth Amendment, even in the light of admonition from the district court.  The KSC concluded that targets of grand jury proceedings are entitled to due process and that introduction of extraneous matters violates due process:

[O]ur statutes contemplate that due process mandates that a Kansas grand jury should only issue an indictment based on legal evidence, rather than suspicion or conjecture.
As a result, the KSC agreed that dismissal of the indictment was an appropriate disposition in this case.  Importantly, the KSC held that the state has the burden of proving any constitutional grand jury defect harmless.  When applying a proper harmless error burden, the KSC affirmed the district court:
In sum, the only evidence supporting the indictment was Turner's unitemized bills, testimony from certain individuals who were unaware of the specific nature of work Turner did for BPU, and witnesses who refused to breach the attorney/client privilege in order to answer the grand jury's questions about what work was performed. Contrary to the Court of Appeals' belief, such equivocal nonproof testimony does not cure or trump the egregious errors visited upon these proceedings that polluted the process and denied fundamental fairness.
This may be more important in future Kansas cases with a more robust statutory grand jury procedure in use in some counties.

Searches incident to arrest from 2009 to 2011 probably violate statute

Gregory D. Bell won in State v. Julian, No. 105,695 (Kan. Sept. 5, 2014), upholding Judge Svaty's suppression order in a Rice County drug prosecution.  The case includes a nice primer on the law of searches incident to arrest.  This case turned on the former statute governing searches incident to arrest, which was repealed in its entirety effective July 1, 2011.  Because the search took place before that date, the statute applied.

The KSC observed that it has held that a 2006 amendment to K.S.A. 22-2501(c), which allowed for searches incident to arrest for evidence of "a" crime was facially unconstitutional after Arizona v. Gant in 2009.  As a result, the only constitutional purposes for a search incident to arrest pursuant to the statute after Gant was for protecting officer safety and preventing escape.  The search in Julian did not fall under those categories:
This was a warrantless search of a vehicle for evidence incident to arrest, conducted at a time when searches incident to arrest were governed in Kansas by statute, and the statute in effect at the time did not authorize searches for the purpose of discovering evidence. The search of Julian's vehicle was therefore illegal.

As a result, the KSC affirmed the suppression order.  The practical impact of this decision appears to be that from the time of the issuance of Gant (April 21, 2009) until the statute's repeal (July 1, 2011), any searches incident to arrest for the purposes of discovering evidence (which is most of them) were illegal and the fruits of those searches should be suppressed.

Saturday, September 20, 2014

No reasonable suspicion that assault rifle in small bag

Douglas L. Adams won in State v. White, No. 109,118 (Kan. App. Aug. 29, 2014)(unpublished), obtaining a suppression order in a Geary County drug prosecution.  The COA held that the record supported a finding that an investigatory stop was justified, that it was not improperly prolonged by a canine sniff, and that officers articulated a basis for searching the truck for weapons.  But it went on to reject any claim of voluntary consent and hold that the officer exceeded the proper scope of that investigatory stop:
As we have stated, the police officers had probable cause to search the Ram for a loaded handgun which was illegal to have in the vehicle. An officer thought he had seen the handle of a weapon when White first opened the glove compartment. That probable cause was enhanced and also further defined once the officers found that the item actually was a magazine for an AK–47 assault type rifle that contained live ammunition.
The bag in which the cocaine in this case was found appears to be approximately 8″ by 6″ in size. Obviously, it could not contain an assault rifle. Perhaps it could possibly contain a very small handgun but that is not what the officers had probable cause to search for since the item that gave rise to that probable cause was indicative of a much larger weapon. Moreover, even if probable cause existed to search for a small handgun, once officers lifted and held the bag, it had to be obvious by its light weight and the fact it apparently did not contain any hard objects that there was no handgun inside of it.
The State argues the police officers were also searching for other ammunition and that allowed them to search the bag. However, ammunition was not the direct object of the search. The State cites us to no law that makes it illegal to possess ammunition separate and apart from a weapon or how such possession could lead to discovery of the item that is illegal, namely a loaded firearm. Officers already had the requisite probable cause to search for a loaded weapon in the vehicle. They simply had no justifiable need or reason to search any small container within the vehicle for more ammunition in order to determine whether White possessed a loaded firearm in violation of city ordinance.
As a result, the COA reversed and ordered suppression of the fruits of the illegal search.

[Update: the state did not file a PR and the mandate issued on October 2, 2014.]

Stegall appointed to Kansas Supreme Court

Here is a Topeka Capital-Journal article announcing that Governor Brownback has appointed Caleb Stegall to fill the vacancy on the Kansas Supreme Court created by Nancy Moritz' appointment to the Tenth Circuit.  Here is the governor's press release regarding the appointment.  Judge Stegall has been on the Kansas Court of Appeals since 2013, so we have not yet seen much of his judicial work to this point.  Judge Stegall's appointment to the Kansas Supreme Court will create a vacancy on the Kansas Court of Appeals as well, so we will see even more changes in the Kansas judiciary soon.

[Update: here is a Kansas Supreme Court press release announcing that Judge Stegall will be sworn in on the Kansas Supreme Court on December 5, 2014.]

Friday, September 19, 2014

Limited DUI lookback applies to all sentencing after July 1, 2011

Jay Norton won in State v. Reese, No. 106,703 (Kan. August 29, 2014), obtaining a new sentencing proceeding in a Johnson County DUI prosecution.  At issue was an amended DUI statute--effective July 1, 2011--which provides that the sentencing court is to take into account only those prior driving under the influence (DUI) convictions that occurred on or after July 1, 2001 for enhancement purposes.  Before this statute (and at the time of Mr. Reese's offense), Kansas statute provided for a lifetime lookback for enhancement purposes.  The question was whether that amended statute applied to all cases sentenced after July 1, 2011 (the effective date of the amended statute) or only to cases where the offense occurred after July 1, 2011.  The Kansas Supreme Court made a pretty exhaustive historical review of the DUI statutes in Kansas and adopted the former interpretation:
we find that K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into account prior DUI convictions occurring during the limited look-back period and determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Accordingly, a prospective application of the amended statute would be to apply its provisions to every DUI sentencing that occurs on or after July 1, 2011, the statute's effective date.
This appears to be pretty important--often the difference between a felony and a misdemeanor--for any persons who were sentenced for DUI after July 1, 2011.

Erratic driving and a plastic baggie do not make reasonable suspicion

Therese Marie Hartnett won in State v. Kala Jones, No. 106,605 (Kan. August 29, 2014), upholding Judge Quint's suppression order in a Finney County drug prosecution.  Judge Quint had suppressed evidence due to the pretextual nature of a stop.  The COA and the KSC agreed with the state that this was an improper basis for suppression, but also agreed with Ms. Jones that suppression was appropriate due to lack of reasonable suspicion to search.  The KSC agreed with the dissenting COA judge that it would be inappropriate to decide contested facts on appeal.  But the KSC agreed with the COA majority that it could decide the legal impact of uncontested facts on appeal and, when doing so, the record revealed a lack of reasonable suspicion:
Applying these principles to this case, as a matter of common sense, driving in an unusual travel pattern cannot by itself be a license to search a vehicle; if it was, the Fourth Amendment would offer no protection to a driver who is driving in an unfamiliar area and approaches an address from different directions in an attempt to spot a particular house number.
Adding the officer's observation of the clear, empty plastic baggie does not significantly add to the suspicion. Common sense suggests that if the bag had been used to package illegal substances, Jones or her companions would have hidden the bag along with its contents. There is no evidence of an attempt to do so before, during, or after the stop. Furthermore, as the Court of Appeals majority observed, there are a multitude of innocent uses for clear plastic bags and the presence of such a bag is not suspicious, at least by itself.
Granted, suspicion might arise if the corner of the baggie had been cut off in a manner often used for packaging illegal substances or the bag had been tied in a knot. Here, at one point in the officer's testimony before the district judge, he described what he observed as the corner of a baggie. When that description was challenged, however, the officer admitted he could not recall the specific appearance and could not say that it was just a corner. Instead, the officer continued to refer to the clear plastic baggie. Thus, all the record establishes is that there was a clear plastic baggie, an article commonly possessed by law abiding citizens.
Even when the totality of these circumstances is considered, we agree with the district judge that the officer acted on a hunch, not reasonable suspicion.
Therefore, the KSC affirmed Judge Quint's suppression order, albeit for a different legal reason.

Saturday, September 13, 2014

October 2014 Special KSC Docket (Kansas City)

Here are the criminal cases on the KSC docket for October 29, 2014, held in Kansas City, Kansas. This is a special setting of the KSC at the Kansas City Kansas Community College.  For the travelling docket, the KSC has published this information page, including briefs in each of the cases.
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) and archived (here) if you would like to listen in to any of these arguments.

October 29--Wednesday--a.m.

State v. Michael Lewis, No. 108,310 (Johnson)
Direct appeal; Felony murder
Rachel L. Pickering (brief); Kimberly Streit Vogelsberg (argue)
[Affd/Vacd; Rosen; Feb. 20, 2015]
  1. Insufficient evidence of underlying felony
  2. No voluntary waiver of jury trial
  3. Failure to dismiss after destruction of possibly exculpatory evidence
State v. Daren Knox, No. 104,266 (Wyandotte)
Direct appeal; First-degree murder
Rachel L. Pickering
[Affirmed; Luckert; April 10, 2015]
  1. Failure to give lesser-included offense instruction
  2. Improper closing argument
  3. Improper exclusion of defense evidence
  4. Failure to give self-defense instruction
  5. Improper limitation of defense cross-examination

Sunday, September 07, 2014

Puppy dog look is insufficient to detain

Catherine A. Zigtema won in State v. Wilburn, No. 110,250 (Kan. App. Aug. 15, 2014) affirming Judges Welch's suppression orders in a Johnson County fraud case.

I won't try to summarize facts in this case that the district court described as "a pit full of snakes that are swirling around with one another" combined with "a law school final in criminal procedure."  But the detention that led to evidence used in the prosecution was premised on a hunch:
At the time of the stop, the officers had no reasonable and articulable suspicion that Wilburn or Curtis had committed any crime. Pierce testified that the sole basis for the stop was the puppy dog "look." We have no trouble concluding that a puppy dog look is insufficient to establish a reasonable and articulable suspicion of criminal activity. This was nothing more than a hunch. "[A] hunch has never been the benchmark of a proper police seizure." The hunch resulted in Wilburn's arrest and subsequently in Pierce answering Wilburn's phone, which he had seized. Still based upon his hunch, Pierce proceeded to the Chick-fil-A where the whole case started to come together.
The state argued that Mr. Wilburn lacked standing to contest a subsequent search of a car that he did not own.  But the COA held that under the "fruit of the poisonous tree" doctrine," Mr. Wilburn did have standing:
Although Epperson and Olivares-Rangel involve slightly different fact patterns than those at issue here, the principle guiding those cases—namely, that a defendant may challenge derivative evidence from an illegal seizure of his or her person regardless of his or her interest (or lack of interest) in that evidence—is sound when applied to the facts of this case. This case, like Mosley, revolves around an illegal stop and detention, not the search of an automobile. Pierce and Jordan lacked reasonable suspicion to stop Wilburn; as a result of their illegal actions, a string of events unraveled, ultimately leading the detectives to the Kia and the evidence within. The illegality of that stop is unaffected by Wilburn's lack of possessory or ownership interest in the Kia, and the violation of his rights is not somehow cured by this lack of interest. The evidence was uncovered as a result of that initial illegal act and must therefore remain suppressed.
The COA also rejected the state's inevitable discovery theory as too speculative and thus affirmed Judge Welch.

[Update: the state filed a PR on September 15, 2014.]

Saturday, September 06, 2014

October 2014 KSC docket

Here are the criminal cases on the KSC docket for October 21-24, 2014.  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) and archived (here)if you would like to watch any of these arguments.

October 21--Tuesday--a.m.

State v. Luis Aguirre, No. 108,570 (Riley)
Direct appeal; Capital murder
Debra J. Wilson
[Rvd/rmd; Johnson; May 15, 2015]
  1. Failure to suppress statements (Miranda)
  2. Failure to suppress statements (involuntary)
  3. Improper argument
State v. Domingo Soto, No. 109,374 (Riley)
Direct appeal; First-degree murder
Michelle A. Davis
[Affirmed; Malone; May 15, 2015]
  1. Failure to disclose that defense witness available
  2. Failure to give lesser-included offense instruction
October 22--Wednesday--a.m.

State v. Deborah Meeks, No. 106,107 (Wyandotte)
Direct appeal (petition for review); Second-degree (intentional) murder
Ryan Eddinger (brief); Samuel D. Schirer (argue)
[Affirmed; Johnson; Dec. 19, 2014]
  1. Improper exclusion of battered spouse evidence
  2. Improper exclusion of prior violent acts of decedent
October 23--Thursday--a.m.

State v. Brandon Castleberry, No. 106,600 (Lyon)
Direct appeal (petition for review); Distribution
Heather R. Cessna
[Affirmed; Johnson; Dec. 24, 2014]
  1. Insufficient evidence
  2. Failure to instruct on moving violations
  3. Failure to give unanimity instruction
State v. William Jolly, No. 106,680 (Saline)
State's appeal (petition for review)
Janine A. Cox
[Affirmed; Malone; Feb. 20, 2015]
  1. Whether downward departure supported
State v. Brenton Hobbs, No. 107,667 (Lyon)
Direct appeal (petition for review); Aggravated battery
Meryl Carver-Allmond
[Affirmed; Beier; Jan. 16, 2015]
  1. Insufficient evidence of knowingly causing great bodily harm
State v. Joshua Quested, No. 106,805 (Saline)
Motion to correct illegal sentence (petition for review)
Michelle A. Davis
[Affirmed; Luckert; June 26, 2015]
  1. No statutory authority to impose consecutive sentences

Sunday, August 31, 2014

Fist fight with attorney in front of jury irreparably effected defense counsel's performance

Korey A. Kaul won in State v. Mullendore, No. 109,581 (Kan. App. Aug. 8, 2014)(unpublished), obtaining a new trial in a Harper County statutory rape prosecution.  The COA described the unusual circumstances occurring just before the complaining witness testified:
Mullendore interrupted: “Your Honor, I got something to say. I'm trying to plead guilty. I wish you'd just leave me alone.” The district court asked the jury to leave the courtroom, but Mullendore kept speaking. Apparently at this point, [defense counsel] attempted to physically subdue Mullendore. Their entire verbal exchange is not reflected in the trial transcript, but on appeal, the parties agree [defense counsel] told Mullendore he would “ ‘beat the shit out of him.’ “ Mullendore continued: “You're going to beat the shit out of me? Why? Why did you say you're going to beat the shit out of me? ... That's crazy.” The district court again asked the jury to leave the courtroom, and Mullendore expressed dissatisfaction with Brown and asserted he would not let CM. take the stand.
Defense counsel moved for a mistrial, but the district court held that a defendant cannot get a mistrial based on his own misconduct.  Instead, the district court admonished the jurors to put the incident out of their minds.  The COA agreed that the outburst was inappropriate, but agreed with Mr. Mullendore that it did not end the analysis:
Mullendore's outbursts during the trial were inappropriate, but defense counsel's response and the ensuing argument brought to the court's attention the potential conflict between Mullendore and Brown. Mullendore argues the district court failed to fully inquire about the conflict it witnessed between Mullendore and Brown, further characterizing Brown's actions as potentially criminal. The State argues a defendant cannot be allowed to create conflict with bad behavior to justify reversal.
The problem here is more than just Mullendore's bad behavior. It is about the duty of the district court to inquire further when it has actual notice of potential attorney/client conflicts.
If the defendant's description of his or her concerns reflects the existence of circumstances that demonstrate the possibility of an irreconcilable conflict between the defendant and his or her counsel, the district court should inquire further.
The COA held that, on the state of the record, Mr. Mullendore had been deprived of conflict-free counsel:
The record reflects this discord affected [defense counsel's] performance. The outburst and altercation between Mullendore and [defense counsel] occurred in front of all or some of the jury. This outburst, by the very nature of what was said, affected [defense counsel's] credibility as an attorney to continue representing Mullendore in front of the jury. The jury observed a serious disagreement between Mullendore and [defense counsel] regarding how to handle the case, including whether Mullendore was innocent or guilty. When a lawyer and client are yelling and fighting, resulting in a physical altercation in front of the jury, that clearly affects the jury's perception of the lawyer's credibility, even though the district court instructed the jury to disregard what it saw and heard and to decide the case on the evidence. The actions between Mullendore and [defense counsel] clearly “undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” All of this activity between Mullendore and [defense counsel] irreparably impaired [defense counsel's] ability to represent Mullendore before the jury, especially when one considers the next witness to testify was Mullendore's daughter.
The deteriorated state of Mullendore and [defense counsel's] relationship was also shown by Mullendore's posttrial motion to replace [defense counsel] as his attorney because of their altercation during the trial. [Defense counsel] agreed there was a conflict and the district court granted the motion providing Mullendore with new counsel for sentencing.
We reverse Mullendore's convictions and remand for a new trial. With the district court's failure to fully investigate on the record the apparent attorney/client conflict and the negative effect it created on [defense counsel's] performance before the jury, we cannot conclude the jury witnessing this conflict did not affect the outcome of the trial.
[Update: the state did not file a PR and the mandate issued on September 11, 2014.]

Saturday, August 30, 2014

Violation of extended juvenile juridiction terms does not mandate adult sentence

Michael J. Bartee won in In re A.M.M.-H., No. 109,355 (Kan. Aug. 8, 2014), reversing the imposition of an adult sentence in a Johnson County extended juvenile jurisdiction prosecution.  The KSC confronted two questions:  (1) does violation of a conditional release contract imposed by KJCC equivalent of a violation of the juvenile sentence and (2) does such a violation require mandatory imposition of the adult sentence?  The KSC answered the first question in the affirmative but that answer led it to find that the statute should not be interpreted to require mandatory imposition of the adult sentence (as had been found by the COA in another case):
The first sentence of the governing statutory subsection is permissive. When an extended jurisdiction juvenile has violated a condition of his or her sentence, a district judge "may revoke" the stay without notice and "direct that the juvenile offender be immediately taken into custody and delivered to the secretary of corrections." Once notice of the allegations supporting revocation are served on the juvenile and the juvenile's attorney of record, the juvenile may challenge the allegations. If no challenge is asserted, the statute is silent. If a challenge is asserted, a hearing is held. After such a hearing, if the district judge finds by a preponderance of the evidence that the juvenile violated a condition of his or her sentence, then the punishment for the violation is no longer permissive. Rather, the district judge "shall revoke" the stay of the adult sentence originally pronounced unless the State and the defense agree to a modification of that sentence. Under the plain language of the statute, the preponderance finding triggers automatic termination of the extended jurisdiction of the juvenile court and endows the adult court with ongoing jurisdiction for any adult sanction other than prison.
In short, K.S.A. 2013 Supp. 38-2364(b) requires a mandatory execution of the adult sentence only if the juvenile has requested a hearing and the court has found a violation by a preponderance of the evidence. The statute does not specifically address the situation before us here, where the district judge apparently scheduled a hearing on the State's motion to revoke before the juvenile asserted any challenge to the allegations of violation. We hold that in such a situation, the district judge retains discretion to determine whether a particular violation warrants revocation of the stay of the adult sentence just as he or she does if no notice has been provided to the juvenile at all.

Because the district court thought it had to impose the adult sentence, the KSC remanded for reconsideration.

Saturday, August 16, 2014

Coercive tactics and failure to provide translator render statements involuntary

Christopher M. Brennan and Megan L. Harrington won in State v. Prieto-Hernandez, No. 109,696 (Kan. App. July 25, 2014)(unpublished) obtaining a new trial in a Wyandotte County statutory rape case.  The primary issue requiring reversal was introduction of several inculpatory statements.  Mr. Prieto-Hernandez had not claimed a Miranda violation.  But he did claim the statements were involuntary because of lack of English proficiency and "misleading and coercive" police tactics.

The COA noted that, pursuant to K.S.A. 75-4351(e) requires provision of a translator "prior to any attempt to interrogate or take a statement from a person who is arrested for an alleged violation of a criminal law of the state or any city ordinance," and while not dispositive, the failure to provide a translator in light of limited understanding, was part of the circumstances of the case.

The COA observed several coercive tactics on the videotaped interview:
The interview was continued past midnight, and the entire interrogation consisted of leading and suggestive questioning by Glaspie. For much of the interrogation, Prieto–Hernandez repeatedly denied any inappropriate contact with E.V. It was Glaspie who initially suggested that Prieto–Hernandez penetrated E.V. with his fingers during the spanking. Glaspie suggested that Prieto–Hernandez was lying many times during the interview. He also told him that E.V. would not lie and she was not trying to get him into trouble. On three different occasions, Glaspie suggested to Prieto–Hernandez that as a Christian, he needed to tell the truth. Glaspie told Prieto–Hernandez that if he continued to deny the allegations, E.V. would have to undergo expensive tests in order to find out why she was bleeding.
At least a dozen times during the interview, Glaspie told Prieto–Hernandez that the doctors would know exactly what happened once they examined E.V., so the interview was his one chance to tell the truth. He told him that if no sex occurred, it was not a “big deal.” Glaspie explained to him that “sex” meant putting his penis into E.V.'s private parts, and he repeatedly assured him that he knew that no sex had occurred. Glaspie informed Prieto–Hernandez that it would be “better” if he only used his finger and not his penis. He suggested to Prieto–Hernandez that he probably did not mean to do it and as long as he said it would not happen again, “we're good.”
The COA reviewed this record and concluded that the record did not support a finding of voluntariness:
Here, when you combine the issue about Prieto–Hernandez' lack of proficiency with the English language and the overall leading and suggestive nature in which the interview was conducted, we have grave concerns about the voluntary nature of his statement. Glaspie's most misleading tactic was repeatedly informing Prieto–Hernandez that no sex was involved if he only used his fingers and not his penis. Glaspie told Prieto–Hernandez that if no sex occurred, it was not a “big deal,” and that if he said it would not happen again, “we're good.” A close examination of the interrogation reveals that Prieto–Hernandez did not volunteer facts, but rather he adopted facts as they were suggested to him by Glaspie. Prieto–Hernandez ultimately relented to Glaspie's version of what took place during the spanking after Glaspie made it clear that was the only version he would accept.
The COA held the statements were not harmless and therefore reversed.  The COA also noted some errors with application of the rape-shield statute that had excluded some defense testimony, but left that question more for the district court on remand.

[Update: the state did not file a PR and the mandate issued on August 28, 2014.]

Short list for KSC

Here is the press release announcing the three names forwarded from the Supreme Court Nominating Commission to the Governor to fill the vacancy on the Kansas Supreme Court created by the appointment of Nancy Moritz to the Tenth Circuit Court of Appeals.  The Commission nominated Court of Appeals Judges Karen Arnold-Burger, Caleb Stegall, and District Court Judge Merlin Wheeler.  The Governor has sixty days to act on this nomination.

Here is a Topeka Capital-Journal article reporting on the interviews for this position.

Saturday, August 09, 2014

District court must follow appellate mandate

Korey A. Kaul won in State v. Pritchard, No. 110,720 (Kan. App. July 18, 2014)(unpublished), returning a Reno County aggravated endangerment case to the district court for the third time for resentencing.  Mr. Pritchard's case had been before the COA in 2010 and 2011.  In 2010, the COA reversed an upward durational depature because of failure to disclose evidence of the aggravating factor.  The district court resentenced Mr. Pritchard and, relying on another aggravating factor, gave him the same sentence.  In 2011, the COA held that, because the district court had not actually doubled the base sentence, the sentence imposed violated the double-rule.  As a result, the COA reversed and remanded  "with instructions to adhere to K.S.A. 21–4720(b)(4) and limit Pritchard's total sentence to twice his base sentence, additionally warning that the holding from Guder prevented modification of sentences that were only vacated on appeal without reversal of the underlying conviction."

On remand, the district court doubled the base sentence and imposed a sentence slightly shorter than the original sentence, but still reflecting an upward durational departure.  The COA held that the district court had failed to follow its mandate from the second appeal:
Although, the district court attempted to impose additional prison time, by departing, its error in the original sentence, as found by the prior panel, precluded the subsequent attempt to impose a departure sentence. Pritchard II explicitly states Guder applies to this case, as Pritchard's underlying convictions were never reversed. While another panel's decision is not binding on this panel, the doctrine of the law of the case indicates the current panel should not reopen an area of litigation that has been thoroughly considered within the same case. The decision of the panel in Pritchard II that at Pritchard's original sentencing hearing the district court failed to impose a proper departure sentence is the law of this case regardless of whether we agree with the panel's analysis.
Based on the mandate of Pritchard II and the supporting caselaw of Guder, the district court's departure sentence was in error because the original sentencing court failed to properly impose an upward departure. While the total sentence length did not violate K.S.A. 21–4720(b)(4), the departure itself was an illegal modification on remand.  The case is remanded to the district court with instructions to impose grid sentences, as it has previously done, to be run concurrently or consecutively.
[Update: the state did not file a PR and the mandate issued on August 24, 2014.]

[Further update: here is a Hutchinson News article regarding the appeal and the third resentencing.]

Mortiz joins the Tenth Circuit

Here is the Tenth Circuit press release announcing the appointment of Nancy Moritz to the Tenth Circuit.  She took the oath of office on July 30, 2014, creating a vacancy on the Kansas Supreme Court.  Here is a Washburn Law article about the appointment, including photos of Judge Moritz taking the oath of office. Good luck Judge Moritz!

[Update: here is a Tenth Circuit press release regarding Judge Moritz' investiture ceremony held at her alma mater, Washburn University on October 17, 2014.]

Saturday, August 02, 2014

Bunyard overruled, but pattern rape instruction still insufficient

Heather R. Cessna won in State v. Flynn, No. 103,566 (July 11, 2014), obtaining a new trial in a Sumner County rape prosecution.  Mr. Flynn had obtained a new trial under State v. Bunyard (blogged about here) because the district court failed to instruct the jury that "the defendant should be entitled to a reasonable time in which to act after consent is withdrawn and communicated to the defendant." The KSC revisited the question and held that the Bunyard Court's decision regarding a "reasonable time to withdraw" was contrary to the statute and disapproved the case.

But the KSC still held that the pattern rape instruction was insufficient:
despite our disapproval of Bunyard's "reasonable time to withdraw" language and its definition of "reasonable time," we reaffirm its conclusion that when evidence is presented involving post-penetration withdrawal of consent, the trial court must do more than simply instruct the jury on the statutory elements of rape. Instead, in such cases, in addition to the rape elements instruction, the trial court must instruct the jury that rape may occur even though consent was given to the initial penetration, but only if the consent is withdrawn, that withdrawal is communicated to the defendant, and the sexual intercourse continues when the victim is overcome by force or fear.
Because the jury had not been informed of these requirements and because the KSC held that the absence of these requirements was not harmless, it reversed and remanded for a new trial.

Saturday, July 26, 2014

September 2014 KSC Docket

Here are the criminal cases on the KSC docket for September 8-12, 2014.  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.
September 8--Monday--a.m.
State v. Leonard Charles, No. 105,148 (Sedgwick)
Direct appeal (petition for review); Aggravated battery
Randall L. Hodgkinson
[Affd/rvd; per curiam; April 22, 2016]
  1. Overbroad jury instruction
  2. Insufficient evidence of alternative means
  3. Improper closing argument
  4. Failure to give limiting instruction
  5. Improper judicial finding requiring registration
State v. Bryce Dull, No. 106,437 (Sedgwick)
Sentencing appeal (petition for review)
Joanna Labastida
[Rvd/rmd; Malone; June 5, 2015]
  1. Lifetime postrelease is cruel and unusual
  2. Improper consecutive sentences
State v. Eli Betancourt, No. 108,944 (Sedgwick)
Direct appeal; First-degree murder
Carl F. A. Maughan
[Affirmed; Luckert; Feb. 13, 2015]
  1. Failure to suppress statements
  2. Improper admission of hearsay of co-defendants
  3. Failure to give cautionary eyewitness ID instruction
  4. Insufficient evidence
  5. Ineffective assistance of counsel
September 9--Tuesday--a.m.
State v. Olin Coones, No. 107,180 (Wyandotte)
Direct appeal; First-degree murder
Joanna Labastida
[Affd/Rmd; Biles; Dec. 12, 2014]
  1. Ineffective assistance of counsel
  2. Improper admission of hearsay evidence
  3. Improper closing argument
  4. Improper imposition of hard-50 sentence
State v. Trevejon Killings, No. 108,021 (Shawnee)
Direct appeal; First-degree murder
Christina M. Kerls
[Affd/Vacd; Jan. 16, 2015; Rosen]
  1. Failure to give lesser-included offense instruction
  2. Improper closing argument
  3. Denial of right to be present
  4. Improper imposition of hard-50 sentence
September 10--Wednesday--a.m.
State v. Cyrus Talkington, No. 107,596 (Lyon)
State appeal (petition for review)
Steven J. Atherton
[Affirmed; Malone; March 6, 2015]
  1. Whether backyard qualified as curtilage
  2. Whether improper entry into back yard attenuated
State v. Adam Longoria, No. 108,333 (Barton)
Direct appeal; Capital murder
Reid T. Nelson
[Affirmed; Luckert; March 6, 2015]
  1. Failure to change venue
  2. Failure to give lesser-included offense instruction
  3. Improper admission of photograph
  4. Improper admission of video of defendant being arrested
  5. Improper closing argument'
  6. Juror misconduct
  7. Insufficient evidence of capital murder
September 11--Thursday--a.m.
Doe v. Thompson, No. 110,318 (Shawnee)
State appeal
Christopher M. Joseph
[Affirmed; Johnson; April 22, 2016]
  1. Retroactive application of KORA amendments violates Ex Post Facto Clause
State v. Promise Redmond, No. 110,280 (Shawnee)
State appeal
Jeffrey G. Dazey
[Affirmed; Johnson; April 22, 2016]
  1. Retroactive application of KORA amendments violates Ex Post Facto Clause
State v. Joseph Buser, No. 105,982 (Mitchell)
Sentencing appeal (petition for review)
Meryl Carver-Allmond
[Reversed; Johnson; April 22, 2016]
  1. Lifetime postrelease is cruel and unusual
  2. Improper use of juvenile adjudication as conviction for KORA
  3. Improper collection fee not authorized by statute
September 12--Friday--a.m.
State v. Scott Cheever, No. 99,988 (Greenwood)
Direct appeal; Capital murder
Debra J. Wilson
[Affirmed; Rosen; July 22, 2016]
  1. On remand from United States Supreme Court
State v. Willie Smith-Parker, No. 105,918 (Saline)
Direct appeal; First-degree murder
Lydia Krebs
[Rvd/rmd; Beier; Dec. 24, 2014]
  1. Insufficient evidence
  2. Insufficient evidence of alternative means
  3. Improper consolidation
  4. Improper exclusion of defense evidence as hearsay
  5. Improper burden of proof instruction
  6. Improper instruction after substitution of juror

Saturday, July 19, 2014

Failure to develop record dooms state's appeal

John R. Kurth won in State v. Simpson, No. 105,182 (Kan. June 27, 2014), affirming Judge Nafziger's in limine order suppressing testimony in a Jefferson County aggravated indecent liberties prosecution.  The state appealed the suppression order.  In its brief, the state claimed that the trial court abused its discretion "when it deemed the witness to be incompetent and suppressed the testimony of that witness" even though "the Defendant introduced no evidence that tended to establish one of the two alternative standards for witness incompetency pursuant to K.S.A. 60-417." The KSC faulted the COA for reaching beyond this narrow issue and reversing the district court on other grounds.  Instead, the KSC held that the record did not support the state's claims on appeal:
the record does not support the State's contention that the district court based its ruling solely on a determination that K.S. was incompetent to testify. While the State repeatedly urged the district court to conduct a hearing to determine K.S.'s competency, the court failed to focus on any particular concern in its orders related to the motion to compel or during any of the proceedings generated by the motion. For instance, in the journal entry formalizing the court's limine order, the district court indicated it based its ruling on "the previous rulings and Orders of the court" and "the non party [sic], natural mother's, failure to consent to the evaluation of the alleged victim and consequential failure to comply with the previously ordered evaluation/examination." This language seems to suggest, as Simpson contends, that the court suppressed K.S.'s testimony as a sanction for her mother's refusal to comply with the evaluation order.
The KSC noted the familiar rule that the appellant has the burden to provide a record on appeal to support its claims and, applying that rule, held that the failure in this case required affirmance of the district court:
Although ultimately unsuccessful, we will respect the State's strategic decision to narrowly frame its issue. Because the State asked the Court of Appeals only to review whether the district court abused its discretion in making a competency determination, we must find the record and the district court's rulings inadequate to answer this question.
This case highlights the importance of (1) making your record when you are an appellant, (2) holding the state (and court) to this standard when the state appeals, (3) being careful not to fill in the record on appeal for the state when it fails to do so.

Wednesday, July 09, 2014

Combining Murdock and Brooks could really help some federal defendants

In State v. Murdock, No. 104,533 (Kan. May 2, 2014), the Kansas Supreme Court recently held that when determining criminal history for a defendant in a Kansas state felony case, all out-of-state prior convictions that predate the Kansas Sentencing Guidelines (effective July 1, 1993) should be scored as nonperson crimes.  As blogged about here, based on other Kansas Supreme Court case law, Kansas defendants who have already been sentenced should be able to obtain Murdock relief on their sentences by filing a motion to correct illegal sentence under K.S.A. 22-3504, which can be filed at any time. 

A few weeks after Murdock was decided, the Tenth Circuit decided United States v. Brooks, No. 13-3166 (10th Cir. June 2, 2014), a case that changed the way prior convictions from Kansas state courts are analyzed under federal criminal law.  As blogged about here, Brooks held that the applicable grid box a defendant is sentenced with using the Kansas Sentencing Guidelines grid can determine whether that prior Kansas state conviction is a "felony" for federal law.  Thus, for the prior Kansas conviction, if the top number in the grid box on the journal entry of judgment is 12 months or less, the prior conviction will not count as a felony under federal law.  This can affect a number of sentencing enhancements in federal cases, such as those in aggravated re-entry cases, Armed Career Criminal, some 851 enhancements, and a plethora of guideline factors.  Additionally, it can impact whether someone is legally allowed to possess a firearm or ammunition under 18 U.S.C. 922 and/or affect the sentencing enhancements in those cases.

As Kansas AFPD David Freund recently suggested to me, the impact of Brooks and that of Murdock could overlap in certain cases.  This is because Brooks advises that you need to look at the applicable grid-box used for sentencing in a Kansas state conviction to determine whether it is a felony for federal purposes.  And it follows that if you can use Murdock to go back and lower the grid-box for that prior case, then it could change whether the prior conviction is considered a felony for any number of enhancements in federal criminal law (as blogged about here, there are other fun ways to use state collateral attacks to stave off a federal sentencing enhancement).


Let's say you represent a defendant in federal court, and they are looking at an Armed Career Criminal Act enhancement based in part upon a prior Kansas conviction for a severity level 8 aggravated battery.  Let's also say that when the defendant was sentenced in that prior state aggravated battery case, he had one pre-1993 prior conviction that was scored as a person felony.  Thus, his prior "person" felony in the aggravated battery case landed him in the 8-D box of the Kansas Sentencing Guidelines for sentencing in that case.  With the 8-D grid-box carrying incarceration terms of 17-16-15 months, the crime seemingly qualifies as "a crime punishable by imprisonment for a term exceeding one year" (a felony as defined by federal law) and thus could be used to trigger the ACCA enhancement in the federal case.

But as held in Murdock, the pre-1993 prior conviction that was scored as a person felony in the aggravated battery case should have been scored as a nonperson felony in that case, making the sentencing box the 11-10-9 grid-box contained in 8-G of the Kansas sentencing grid.  Thus, the aggravated battery conviction, when the correct criminal history is applied in that case, is not "a crime punishable by imprisonment for a term exceeding one year" and should not be used as an ACCA predicate in the new federal prosecution.  See Brooks.

The solution to this hypothetical problem might be to file a motion to correct the illegal sentence in the old state case and ask that the prior journal entry of judgment list the correct grid-box as the law is set forth in Murdock.  Then, the journal entry of judgment for that Kansas state aggravated battery case would show that the conviction no longer qualifies as a felony under federal law and thus could not be used as an ACCA predicate in the federal case.