Saturday, April 26, 2014

Being near a business that has been burglarized does not create reasonable suspsicion

Michael S. Holland, II, won in State v. Jacobs, No. 109,396 (Kan. App. April 4, 2014)(unpublished), obtaining a suppression order in a Ellis County DUI prosecution.  An officer had pulled over a truck in the early morning hours in an area where there had been several burglaries.  Other than the truck being in front of a business at the early hour, there was nothing suspicious.

The COA agreed that these facts did not demonstrate even the minimal level of reasonable suspicion:
Here, the district court found that reasonable suspicion existed based on “a car in a rural area in a rural business that has been burglarized three times at 1:00 in the morning.” However, the State does not explain why a person parked near a rural business late at night would be any more likely to be engaged in criminal activity than a person parked near another business late at night.
Thus, the only two facts present are the previous crimes at the business and the time of night. Under the totality of these circumstances, [the officer] did not have reasonable articulable suspicion to make a traffic stop. Absent some additional, particularized reason to have suspected the occupants of the white truck in the parking lot had committed, were committing, or were about to commit a crime, there was no reasonable suspicion at the time [the officer activated his emergency lights. [The officer's] seizure of Jacobs was therefore not lawful.
[Update: the KSC denied the state's motion to file an out of time petition for review and the mandate issued on May 14, 2014.]

Saturday, April 19, 2014

Pervasive improper questions and argument requires new trial

Samuel Schirer won in State v. Ramey, No. 108,597 (Kan. App. March 28, 2014), obtaining a new trial in a Montgomery County aggravated burglary prosecution.  The COA found several instances of improper questioning and argument, including reference to inadmissible evidence, personal comments about credibility, and making inflammatory comments:
In support of the argument that the prosecutor's comments were gross and flagrant, Ramey states the prosecutor was experienced and there are no recent developments in the law that would justify the comments. He argues the prosecutor committed misconduct 23 times and, thus, the misconduct was not isolated by any stretch of the imagination. While we do not count 23 instances of misconduct, we believe the prosecutor committed misconduct in several instances: (1) the allegation of prior crimes of theft or dishonesty; (2) the bizarre nature of Ramey's story and how he allegedly manufactured his defense; (3) the vouching for [the complaining witness'] credibility; (4) the inappropriate question about [the complaining witness'] drinking habits; and (5) the trial causing more pain to [the complaining witness].
After reviewing the evidence, the COA concluded that the improper argument required reversal:
While there was substantial evidence against Ramey, the facts also made for a plausible voluntary intoxication defense. Because the improper comments were so numerous and prejudicial, and because the State's case, although strong, was not overwhelming, we find there was cumulative error which requires reversal and remand for a new trial.
[Update: the state did not file a PR and the mandate issued on May 1, 2014.]

Strong smell of alcohol in car does not provide PC on transporting open container

Rick Kittel and KU Defender Project intern Elizabeth Landau won in State v. Stevenson, No. 104,115 (Kan. March 28, 2014), obtaining suppression of evidence in a Sedgwick County drug prosecution.  The only issue was review of the split decision of the COA on whether the strong odor of alcohol emanating from an unoccupied vehicle gives probable cause to search the vehicle for evidence of transporting an open container.  The KSC held that it did not:
In short, the totality of the circumstances in this case only establishes that the officers' observation of a very strong odor of alcohol emanating from within the vehicle, which they suspected to be the result of spilled alcohol, provided them with reasonable suspicion to extend the traffic infraction detention to further investigate whether Stevenson was transporting an open container of alcohol in violation of K.S.A. 2013 Supp. 8-1599. The officers' failure to acquire additional inculpatory facts relating to the crime being investigated before commencing their search of the vehicle rendered the search unreasonable and unlawful.
The KSC was careful to note that this search was the result of a pretextual stop and there was no evidence of intoxication and therefore the detention had to be limited to the basis for that stop.

Saturday, April 12, 2014

Defendant does not put credibility at issue simply by testifying

Carol Longenecker Schmidt and Samuel Schirer won in State v. Armstead, No. 109,160 (Kan. App. March 21, 2014)(unpublished), obtaining a new trial in a Leavenworth County drug and obstruction prosecution.  During trial, the district court admitted evidence of prior convictions for the purpose of impairing Mr. Armstead's credibility.  Mr. Armstead claimed this was error because he had not placed his credibility at issue.  The COA agreed:
In its ruling, the trial court also did not mention K.S.A. 60–421 but simply stated to Armstead's attorney, “Your client took the stand. He's subject to cross-examination and he's entitled to be tested for truth and veracity.” We understand the trial court's ruling as stating that whenever a criminal defendant takes the witness stand he or she may be impeached with evidence of prior crimes of dishonesty or false statement. But Armstead challenges the trial court's legal formulation as an inaccurate statement of Kansas law.
A criminal defendant must have the right to deny the charges against him without fearing that such testimony will authorize the State to parade his history of past misconduct before the jury. Consequently, a criminal defendant does not place his credibility in issue, under K.S.A. 60–421, by merely taking the witness stand. We agree with Armstead that the trial court's stated reason during trial for admitting the prior crimes evidence was at variance with K.S.A. 60–421.
During cross-examination, Mr. Armstead said a police officer lied.  The state claimed that this put Mr. Armstead's credibility at issue.  The COA disagreed:
We question the validity of the State's argument. While Armstead accused the officer of lying, he did not refer to, let alone bolster, his own credibility. Moreover, the State's claim that Armstead's use of an alibi defense necessarily placed his credibility in issue is without merit.
The COA further found that the error was not harmless and, therefore, reversed and remanded for a new trial.

[Update: the state did not file a PR and the mandate issue on April 24, 2014.]

Violation of in limine order and failure to instruct on unanimity requires a new trial

Michael J. Bartee won in State v. Santos-Vega, No. 104,485 (Kan. March 21, 2014), obtaining a new trial in a Wyandotte County aggravated indecent liberties with a child prosecution.  The state agreed that it had presented evidence of multiple acts, but failed to make sure that the jury was instructed on the requirement of unanimity.  The KSC pondered whether the error was clear in this case, but did not have to decide the issue because it also held that a detective violated a motion in limine implicating Mr. Santos-Vega's right to remain silent and that the errors were cumulatively harmful:

During cross-examination, the following took place:
Q. Okay. And this affidavit, Detective Hudson, was prepared with what information that you had in your possession at the time
A. I had the information based on the statements, based on the allegations made by the—by [S.T.] and [S.S.], and which time it was forwarded. Your client refused to give me a statement, so I didn’t have his version of the events. He was given an opportunity to, he asked for an attorney and so he invoked his rights, so I did not get his version of the events. He was explained his charges, what was going on. He got this look in his eye and he sunk his head down like—and he said I want an attorney.
The KSC had little trouble holding that the district court should have granted a mistrial as a result of this violation of an in limine order:
At least implicitly, the district court's inactions suggest it found the detective's answer was responsive to defense counsel's question, but that was obviously wrong. The detective was asked only what information he had to prepare the affidavit. He answered instead by explaining what information he did not have and then embellishing on that nonresponsive reply by explaining why he did not have more information, i.e., Santos-Vega "invoked his rights" by refusing to give a statement and asking for an attorney. Even more egregiously, the detective colorfully described how Santos-Vega "got this look in his eye and he sunk his head down . . . and . . . said I want an attorney." None of this was called for by the simple question from counsel about what information the detective had in his possession in preparing the affidavit.
The KSC held that the unanimity error and the Fifth Amendment violation combined to require a new trial.

Friday, April 11, 2014

Hard-50 statute ruled unconstitutional under Alleyne

In State v. Soto, No. 106,306 (Kan. April 11, 2014), the KSC today ruled that Kansas' statutory procedure for imposing a hard-50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the U.S. Constitution as described in Alleyne v. United States, 133 S. Ct. 2151 (2013).  The court held that because the statute permits an increase in the mandatory minimum life sentence from 25 to 50 years based on a judge's finding a of aggravating factors by a preponderance of the evidence, the statute violates the constitutional right to a jury trial.  Kevin Zolotor and Charles A. O'Hara represented Mr. Soto in the appeal.

As blogged about here, here, here, and most recently - here, this is an issue that has been litigated by Kansas defenders for many years.  The Soto court explained some of the history of the issue and described what it called the "[t]he changed landscape after Alleyne v. United States."  Ultimately, the court held that "under the combined force of Ring and Alleyne, the statutory procedure for imposing a hard 50 sentence violates the Sixth Amendment because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt."

The court also held that "we need not decide here whether a harmlessness analysis applies to a hard 50/Alleyne error, because even assuming the application of Reyna's modified harmless error analysis, the error here does not come close to meeting that test."  The court further stated that, "because Kansas' hard 50 scheme requires the sentencing court to not only find aggravating and mitigating circumstances, but to weigh any mitigating circumstances against aggravating circumstances, only in a rare instance could a hard 50/Alleyne error be harmless."  (But it should be noted that the application of a harmlessness test to Apprendi error is another issue that may be reversed by SCOTUS in the future.  After all, it does not make much sense that a trial judge's factual findings would violate a defendant's right to a jury trial under Apprendi, but an appellate court's factual findings of harmlessness would not similarly violate that right.) 

The Soto decision, of course, overturned a now-repealed statute, K.S.A. 21-4635.  But it will undoubtedly affect the version of the hard-50 statute (K.S.A. 2011 Supp. 21-6620) that was in effect until September 6, 2013 (when the Legislature attempted to "fix" the hard-50 statute after Alleyne).

In the end, the Soto opinion also refused to address the remedy on remand.  The State argued that the newest version of K.S.A. 21-6620 (which retroactively requires jury findings for any non-final hard-50 sentence) should apply to any remand proceedings.  Mr. Soto argued that such a remedy would violation the Ex Post Facto Clause of the U.S. Constitution.  The court refused to address the issue, noting that it does not issue advisory opinions.  So in other words, stay tuned.