Monday, January 20, 2014

March 2014 KSC Docket

Here are the criminal cases on the KSC docket for March 3-6, 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.

March 3--Monday--a.m.

State v. Rogelio Soto, No. 106,306 (Sedgwick)
Direct appeal; First-degree murder
Charles A. O'Hara (brief), Kevin J. Zolotor (argue)
[Affd/Rvd/Rmd; Moritz; April 11, 2014]
  1. Insufficient alternative means of aiding and abetting
  2. Failure to give unanimity instruction
  3. Improper instructions
  4. Improper imposition of hard-50 sentence
  5. Gruesome photographs
State v. Derrick Richard, No. 107,962 (Sedgwick)
Direct appeal; Felony murder
Ryan Eddinger (brief), Joanna Labastida (argue)
[Affirmed; Johnson; Sept. 5, 2014]
  1. Improper admission of prior bad act evidence 
  2. Denial of motion to suppress statements
  3. Denial of motion to suppress evidence
State v. Edward Laurel, No. 107,096 (Sedgwick)
Direct appeal; First-degree murder
Mark T. Schoenhofer
[Affd/Vacd; Beier; May 30, 2014]
  1. Improper denial of new trial upon newly discovered evidence of perjured testimony
  2. Improper sentencing to hard-25 without unanimous finding
Santiago Sola-Morales v. State, No. 104,388 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
[Rvd/Rmd; Nuss; Oct. 24, 2014]
  1. Improper ineffective assistance of counsel finding
March 4--Tuesday--a.m.

City of Wichita v. William Molitor, No. 104,940 (Sedgwick)
Direct appeal (petition for review); DUI
E. Jay Greeno
[Rvd/Rmd; Johnson; Jan. 30, 2015]
  1. Testimony regarding the HGN test is inadmissible, absent compliance with Frye
State v. James Andrew, No. 104,666 (Johnson)
Direct appeal (petition for review); Agg assault
Meryl Carver-Allmond
[Affirmed; Luckert; Aug. 29, 2014]
  1. Improper self-defense instruction
  2. Failure to instruct on voluntary intoxication
State v. Joaquin Deanda, No. 107,477 (Finney)
Sentencing appeal
Shawn E. Minihan (brief); Korey A. Kaul (argue)
[Vacd/Rmd; Moritz; May 23, 2014]
  1. Improper imposition of hard-50 sentence
  2. Hard-50 sentence violates Alleyne
  3. Improper admission of autopsy report without confrontation
State v. Terry Hayes, No. 106,456 (Johnson)
Direct appeal; First-degree murder
Lydia Krebs
[Affd/Vac; Rosen; June 13, 2014]
  1. Failure to give lesser-included offense for voluntary manslaughter
  2. Improper imposition of hard-50 sentence
March 5--Wednesday--a.m.

State v. Aaron Clay, No. 107,038 (Wyandotte)
Direct appeal; Felony murder
Carol Longenecker-Schmidt
[Affd/Vacd/Rmd; Mortiz; July 25, 2014]
  1. Failure to give lesser-included offense instructions
  2. Improper eyewitness ID instruction
State v. Terry Bowen, No. 107,904 (Marion)
Direct appeal; Rape
Joanna Labastida
[Affd/Vacd; Biles; May 9, 2014]
  1. Improper admission of prior bad act evidence
  2. Insufficient evidence of alternative means of rape
  3. Improper response to jury question violating right to be present and public trial
  4. Failure to provide conflict-free counsel for preliminary hearing
State v. Dominic Verser, No. 107,906 (Wyandotte)
Direct appeal; First-degree murder
Rick Kittel
[Affirmed; Beier; June 6, 2014]
  1. Failure to grant mistrial after witness misconduct
  2. Improper admission of prior bad act evidence
  3. Failure to give limiting instruction re: bad act evidence
  4. Improper reasonable doubt instruction
  5. Improper response to jury question violating right to be present and public trial
State v. Patricio Briseno, No. 107,351 (Wyandotte)
Direct appeal; First-degree murder
Matthew J. Edge (brief); Michelle A. Davis (argue)
[Affirmed; Nuss; June 13, 2014]
  1. Improper eyewitness ID instruction
  2. Failure to give limiting instruction re: gang evidence
March 6--Thursday--a.m.

State v. Justin Neighbors, No. 105,588 (Lyon)
State appeal (petition for review)
Stephen J. Atherton
[Affirmed; Biles; April 25, 2014]
  1. Validity of consent obtained during emergency aid check
State v. Ronnell Burnett, No. 107,571 (Wyandotte)
Direct appeal; Felony murder
Michelle A. Davis
[Affirmed; Rosen; July 25, 2014]
  1. Improper exclusion of defense evidence
  2. Improper denial of motion to continuance
  3. Insufficient evidence of alternative means
  4. Improper admission of jailhouse letters
  5. Failure to give limiting instruction re: bad act evidence
  6. Failure to investigate request for substitute counsel
  7. Ineffective assistance of counsel
State v. Jimmy Dominguez, No. 106,288 (Lyon)
Direct appeal; First-degree murder
Michelle A. Davis
[Affd/rvd/rmd; Luckert; May 23, 2014]
  1. Improper first-degree murder instruction
  2. Failure to give accomplice instruction
  3. Failure to give voluntary intoxication instruction
  4. Hard-50 sentence violates Alleyne

Saturday, January 18, 2014

Improper consolidation requires new trial

Christina M. Kerls won in State v. Hurd, No. 104,198 (Kan. Dec. 27, 2013), obtaining a new trial in a consolidated Seward County criminal threat and failure to register prosecution.  The KSC noted that K.S.A. 22-3202, governing consolidation does not permit the district court to consider its calendar as a basis for consolidation.  The KSC went on to show that the district court had erred by finding that the charges in this case were connected:
As we have noted, the phrase "connected together" applies if the defendant provides evidence of one crime while committing another. Anthony involved that very scenario, as the defendant unwittingly provided evidence of one crime while committing another. In contrast, Hurd did not provide evidence of the registration violation while committing the assault, battery, and criminal threat. Instead, Frank provided evidence relevant to the registration violation when he later reported the assault to law enforcement. And here, unlike in Anthony, the State could easily have introduced evidence to prove the assault, battery, and criminal threat charges without proffering the evidence needed to prove the failure to register charges or vice versa. 
Thus, we conclude that the facts here do not substantially demonstrate the defendant provided evidence of one crime while committing another. Nor does the State suggest that the facts satisfied either of the remaining two bases for finding the cases to be "connected together" so as to permit joinder.
The KSC went on to reiterate that the burden of showing a lack of prejudice from the wrongful consolidation was on the state and that it had not met that burden in this case.

Mr. Hurd had filed a motion for arrest of judgment claiming the charging documents related to failure to register were defective:
Further, contrary to the panel's holding in this case, the State did not merely charge alternative theories of the same crime. The final charging document blended language from two different statutory provisions, creating confusion as to which provision Hurd was charged with. While amending a complaint to charge alternative theories may be proper, blending statutory provisions so no crime is charged is not.
As a result, the KSC held that the failure to register convictions were void.