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.]