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.