Saturday, May 31, 2014

Mortiz confirmed to Tenth Circuit

Here is a press release from Senator Moran's office announcing that President Obama's nomination of Nancy Moritz, current Kansas Supreme Court Justice was confirmed by the Senate on May 5, 2014.  A loss for Kansas but a gain for the Tenth Circuit.  Here is an note on the confirmation from Justice Moritz' alma mater, Washburn Law School.

Saturday, May 24, 2014

Improper bolstering of witnesses requires new trial

Deborah Hughes won in State v. Neal, No. 108,273 (Kan. App. May 2, 2014), obtaining a new trial in a Johnson County drug prosecution.  The prosecutor made the following comments during closing argument:
The floor and the bed. One said the shorts are on the floor one on the bed. They had little inconsistencies like that. Think about it, if you are going to risk your career, a lifetime in law enforcement, on this case, wouldn't you take the time to get every little detail right? Wouldn't you sit down and go, ‘hey, we're going to do this, we don't want to get caught, let's make sure that you and I have our stories exactly the same?
. . . .
Does Detective Chisholm get some brownie points, does he get additional salary? What does he get for coming in here and making something up, other than possibly ruining his career, and the two other individuals that are already tried and convicted. So, no, Detective Chisholm is simply telling you what happened.
. . . .
But if you were to accept the defendant's version of what occurred, that means the officers were lying.
Now think about that, all the things law enforcement didn't do. They intentionally didn't do a video. They intentionally didn't do an audio. They intentionally lost evidence and didn't do fingerprints and DNA. Because all of that would have shown the officers were lying. Is that reasonable?
During rebuttal, the prosecutor turned the discussion to the defense attorney:
Ladies and gentlemen, nobody wants you to jump to conclusions. But what we do ask you to do is to use your common sense. Now think about this, defense counsel isn't saying the officers made a mistake. She is saying that they're lying.
The COA agreed that these comments unfairly bolstered the witnesses, commented on veracity, and (even if it correctly stated defense counsel's argument), constituted an improper personal opinion about witness credibility.  The COA also held that the prosecutor's pervasive and improper comment on credibility in a case that turn on credibility was gross and flagrant and evinced ill will.  As a result, the COA ordered a new trial.

[Update: the state filed a PR on June 2, 2014.]

[Further update: the KSC denied the state's PR and the mandate issued on May 1, 2015.]

Deliberately misleading judge means no good faith

Rand Simmons won in State v. Widener, No. 110,139 (Kan. App. May 2, 2014), obtaining a suppression order in a Lyon County forgery prosecution.  The district court had suppressed evidence obtained in a companion case due to an insufficient affidavit is support of a search warrant and rejected application of the good faith exception because the judge found the officer had deliberately misled him.  Another district judge agreed that the affidavit was insufficient in the instant case, but held that the officer could have been a mere oversight, and therefore did not suppress.  The COA cited and agreed with the opinion in the companion case (affirming suppression):
We agree with the Gohring panel's conclusion—that is to say, Detective Davis deliberately omitted material facts regarding the veracity of Adams' statements.
Nevertheless, the State argues Judge Larson correctly concluded the omissions were not deliberate because Detective Davis did not have firsthand knowledge of such information, i.e., Detective Davis was not present at the interrogations and had relied on the information provided to him by Sergeant Heller and Detective Holmes. Actually, the State is arguing the panel's conclusion in Gohring that Detective Davis should be charged with the same knowledge as Sergeant Heller and Detective Holmes is erroneous. We agree with that panel's conclusion.
As a result, the COA reversed and remanded with directions to suppress.
[Update: the state did not file a PR and the mandate issued on June 5, 2014.]

Asking for identification is more than a minimal intrusion

Matthew J. Edge won in State v. Reiss, No. 102,071 (Kan. May 2, 2014), obtaining suppression of evidence in a Butler County DUI prosecution.  The defense had not challenged the stop, but challenged extended detention after the stop. The state had not challenged that Mr. Reiss had been detained.  The COA had held that an officer could public safety could justify brief, suspicionless stops.  The KSC held that an officer can direct a person to get back in their car for officer safety and, thus, the initial seizure was lawful.

But the KSC further held that the officer lacked any reasonable suspicion to continue to detain Mr. Reiss past that point:
So Ritter was justified in his initial exchange with the seated Reiss. Ritter testified that "I asked him why he had gotten out of his vehicle. And he told me that he just didn't really know what he did. I said that's ok." 
In short, Ritter had quickly resolved his safety concerns that justified Reiss' initial detention. The State did not provide evidence to suggest otherwise—except that Ritter had been unwilling to turn his back on Reiss' truck, a concern easily resolved by advising Reiss he was now free to go. But then Ritter changed the thrust of the officer-citizen encounter: "I asked him for his driver's license and proof of insurance to identify who he was."
According to the KSC, asking for identification is more than a minimal intrusion and requires reasonable suspicion.

As an aside, I thought it was interesting that the KSC held that the way to resolve ongoing officer safety concerns (absent reasonable suspicion or more that would justify detention) is to let the person go.  What a concept.

Saturday, May 17, 2014

Pre-guidelines prior convictions are nonperson felonies

Ryan Eddinger and Patrick Dunn won in State v. Murdock, No. 104,533 (Kan. May 2, 2014), resulting in a new sentencing hearing in a Shawnee County robbery prosecution.  The KSC reversed Murdock's sentence and held that Murdock's pre-1993 out-of-state prior convictions should have been scored as nonperson crimes.  The KSC went on to state that all pre-guidelines prior convictions should be scored as nonperson crimes in scoring criminal history.  Thus, this opinion could end up having a big impact for a lot of defendants.

Generally, when determining whether out-of-state crimes are scored as person or nonperson offenses for assessing criminal history, the out-of-state offense is compared to an in-state offense.  In Murdock, the court applied the holding of State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), which held that a comparable offense from another jurisdiction (when determining whether the comparable Kansas offense is person or nonperson) is compared to a Kansas offense in effect on the date the prior crime was committed.  Of course, prior to July 1, 1993, the state of Kansas did not designate crimes as either person or nonperson crimes.  Thus, Murdock held that, under Williams, any out-of-state felonies committed before July 1, 1993 would be scored as nonperson felonies because Kansas did not have person felonies at the time.

The KSC applied K.S.A. 21-4710(d)(8), (which is now K.S.A. 21-6810[d][6]), which states: "Unless otherwise provided by law, unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history."  Because convictions prior to July 1, 1993 were not classified as either person or nonperson, the court held that absent legislative direction to the contrary, all such convictions must be classified as nonperson for the purposes of determining criminal history.  The KSC reversed both the COA and district court and remanded the case back with instructions to classify Murdock’s pre-1993 out-of- state convictions as nonperson crimes.

A question that will surely come up is whether persons previously sentenced (even as far back as 1993) will be able to seek relief under Murdock.   In 2011, the KSC held that a sentence that is based on incorrect criminal history is illegal and therefore properly raised by motion to correct an illegal sentence even after completion of a direct appeal.  See State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011) (a sentence that is based on incorrect criminal history qualifies as an illegal sentence).  In combination, Murdock and Neal would seem to plainly answer the question.

[Update: on September 19, 2014, the KSC granted in part a motion for modification filed by the state.  The KSC changed the language in the decision to limit the express reach of the decision to out-of-state conviction.  This is probably consistent with the fact that an appellate court may choose not to reach issues that are not directly before it and the question regarding in-state convictions was not directly before it.  Logically, however, there is no difference between in-state and out-of-state convictions for these purposes.  In fact, the out-of-state classification depends on a determination of what an in-state conviction would be.  So, if pre-1993 in-state convictions can be classified as person offenses, it is difficult to reconcile Murdock.  There are cases in the pipeline that will hopefully decide this question sometime in the not-too-distant future.]

[Further update: on August 28, 2015 (less than a year after the KSC's last order in Murdock), in State v. Keel. No. 106,096 the KSC overruled Williams and, consequently, overruled Murdock itself.]

Judge's ocular observation not a substitute for an expert

Gerald E. Wells won in State v. Haney, No. 105,685 (Kan. April 25, 2014), obtaining a new sentencing hearing in a Lyon County criminal sodomy prosecution.  Mr. Haney pleaded no contest to a couple of sex offenses and filed a motion for downward departure.  In support of that motion, defense counsel sought and obtained funding from BIDS to have a sex offender evaluation completed.  But because the evaluation could not be completed before the scheduled sentencing, defense counsel requested a continuance.  The district court denied the continuance:
finding that the sex offender evaluation would only be relevant to the type of treatment that Haney would need if he obtained probation, which was not an option in his case. Furthermore, the court opined that the purpose of a professional sex offender evaluation could be fulfilled through another method, to-wit: "Or we can put Mr. Haney on the stand and he can testify, and I [the district judge] could look him in the eye and determine whether he's telling the Court the truth or not and determine whether that's an appropriate sentence or not."
Ultimately, the district court denied the departure.

The KSC reversed holding that such evidence would have been applicable in Mr. Haney's case:
First addressing the latter holding—that sex offender evaluations are only used to assess treatment programs for those receiving probation—we believe the district court too narrowly construed the nature and purpose of sex offender evaluations. Such evaluations are often requested during the sentencing or disposition phase of the court process in order to identify, among other things, the level of risk for sex offense recidivism. These evaluations are frequently used to assist judges with making well-informed dispositional determinations.
The KSC also rejected the notion that the district court or a defendant can serve as a substitute for an expert:
Next, we soundly reject the district court's declaration that the defendant's own testimony, coupled with the court's astute ocular observation, was an adequate substitute for an expert's evaluation and testimony. Certainly, the defendant could not qualify to give expert testimony on sex offenders in general or himself in particular. Likewise, although we presume our trial judges are imbued with a great deal of wisdom, we decline to hold that a person appointed or elected to the district court bench has qualified as an expert in sex offender evaluations. Clearly, it was an abuse of discretion for the district court to require the defendant to forego an expert's scientific testimony on risk assessment in favor of looking the judge in the eye while testifying.
This could be an important case in establishing that defense counsel can (and must) work to provide adequate defense at sentencing.

Emergency aid exception is limited and does not cover property

Stephen J. Atherton won in State v. Neighbors, No. 105,588 (Kan. April 25, 2014), affirming Judge Fowler's suppression order in a Lyon County drug prosecution.  The primary issue before the KSC was the application of the emergency aid exception.  Officers had responded to a landlord's call about a nonresponsive person in one of his apartments.  Officers, also unable to get a response, entered the apartment.  Upon entry, the officers found Mr. Neighbors, who woke up and told officers that he had permission to be in the apartment from the tenant, who was in jail.  Officers confirmed that the tenant was in jail and that Mr. Neighbors had permission to be in the apartment.  Meanwhile, because the persons were recognized as drug offenders, drug investigators arrived and began an investigation.  The KSC held that this crossed the line of a permissible emergency aid exception to the Fourth Amendment.  Aligning itself with Brigham City v. Stuart, 547 U.S. 398, 403, 406-07 (2006), the KSC held that warrantless entry under the emergency aid doctrine does not cover property and must be limited and end when the emergency ends:
Accordingly, the emergency aid exception must be seen as a limited exception permitting a warrantless search when: (1) law enforcement officers enter the premises with an objectively reasonable basis to believe someone inside is seriously injured or imminently threatened with serious injury; and (2) the manner and scope of any ensuing search once inside the premises is reasonable. Our prior caselaw holding otherwise is overruled.
Using this test, the initial entry into the apartment was lawful.  But the continued detention and investigation was not:
In Neighbors' case, the only evidence arguably in plain view was the Q-Tip, and it is unclear from the record whether it was even confiscated. The only testimony at the suppression hearing was that Delgado observed it, but there was no testimony indicating it was tested for drugs. But even assuming Neighbors' motion to suppress included the Q-Tip, it is questionable whether the seizure could be upheld under the plain-view exception because its incriminating nature was not apparent without conducting some further search of it. More importantly, and as discussed next, Delgado was not lawfully present from the outset, so his discovery of the Q-Tip fell outside the justification for the initial entry.
The KSC also soundly rejected the COA's rationale that the criminal investigation itself constitutes an emergency:
One additional problem we note with the panel's analysis is that it seems to create an end run around the probable cause requirement by characterizing a criminal investigation itself as an emergency.  We reject that suggestion. We cannot find any previous Kansas case invoking the emergency aid exception for the protection of property. And as mentioned earlier, this expansion of the exception would be difficult to reconcile with Brigham City
We hold the emergency aid exception—as articulated in Brigham City—does not apply to the protection of property. We hold further that the potential medical emergency that justified the four officers' initial entry into the apartment abated prior to the time Delgado arrived.
This last holding may have some application in a Confrontation Clause analysis too.

Saturday, May 10, 2014

No connection between trash and residence targeted in search warrant

Paul D. Cramm won in State v. Malone, No. 110,191 (Kan. App. April 18, 2014), affirming Judge Davis' suppression order in a Johnson County drug prosecution.  The case involved discovery of drug paraphernalia in one trash bag and discovery of some documents linked to Mr. Malone in another trash bag.  Based on this evidence, police obtained a search warrant of Mr. Malone's residence at a different location.  The COA agreed with Judge Davis:
In ruling on the motion to suppress, the district court found fault with both the trash pull and the garden center purchase information. First, the court determined that the indicia of residency needed to have been in the same bag as the contraband, and the court found Detective Stein's conclusion that the contraband belonged to the Troost residence to be unsupported by any facts. Second, the court concluded the link between Malone and the garden center purchase was "tenuous," as there was no evidence establishing Malone as the person who made the purchase. 
We agree with the district court's conclusion on this point. When it comes to trash pulls, if a search warrant is to be issued, the general rule requires some evidence connecting the drug evidence discovered in a trash bag and the residence to be searched.
. . . .
This case involved only one trash pull. There was no surveillance evidence connecting the trash bags with the residence or the people who lived in that residence. In short, there was no evidence of illegal activity in the house.
In our view, there is no connection between the residence and the contraband that is sufficient to support the issuance of a search warrant. Not only was the mail found separately from the contraband, but the mail was not addressed to Mai Lin—the only person shown to have a connection to the garden center purchase and to Malone. Anyone could have passed by the Troost residence and thrown the bag containing contraband into the trash can. Stein's affidavit did not indicate that anyone saw Malone or another resident of the Troost house place the bags in the can, and there is no indication that more than one trash pull was conducted during this investigation.
The COA was also troubled by lack of information regarding what the affiant deemed suspicious remote purchases of cultivation paraphernalia.  The COA also agreed with the district court that the affidavit was so lacking that the good-faith exception did not apply.  In fact, the COA may have gone further:
We question whether the good-faith exception can apply under these facts. Detective Stein, the affiant who obtained this search warrant, along with other officers, executed the search. Stein knew he had no evidence linking the contraband with the residence. In the affidavit, Stein acknowledged that he found the contraband in a different bag than the bag with the indicia of residency. Since Stein offered no other information that would link the trash bags to the Troost residence, we conclude he knew of no other evidence linking the two. For example, Stein did not say he saw Malone or another resident of the Troost house place the bags in the can. Stein did not indicate he conducted multiple trash pulls finding contraband each time. Stein did not indicate he had been conducting surveillance of the Troost house. Stein simply indicated that the trash bags were found at the curb near the Troost residence. If he had any additional knowledge he certainly did not share it with the judge who issued the search warrant.
[Update: the state filed a PR on May 19, 2014.]

[Further update: the KSC denied the state's PR and the mandate issued on September 2, 2014.]