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 Aug. 8, 2014)(unpublished), obtaining a new trial in a Harper County statutory rape prosecution.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.