Friday, October 31, 2014

Hodgkinson inducted as Fellow in presigious appellate group

Randall Hodgkinson, creator and co-author of this blog, has been inducted as a Fellow in the American Academy of Appellate Lawyers (AAAL).  As explained here, induction into the AAAL is by invitation only and is limited to 500 members in the United States.  Academy Fellows must have been in appellate practice for at least 15 years, and only lawyers with a reputation for the highest excellence in appellate work and unblemished integrity are invited to membership. 

Randall is a Visiting Assistant Professor of Law at Washburn Law School, primarily teaching Criminal Appellate Advocacy.  He has been a teacher and mentor to many lawyers (including this blogger during my time at the ADO).  And this type of recognition and praise is certainly well deserved. 

Sunday, October 26, 2014

Insufficient evidence of "sudden quarrel" for voluntary manslaughter as lesser

Adam D. Stolte won in State v. Gooding, No. 110,352 (Kan. App. Oct. 3, 2014), obtaining reversal of a Sedgwick County voluntary manslaughter conviction.  The state charged Ms. Gooding  with premeditated first-degree murder, but a jury convicted of voluntary manslaughter as a lesser-included offense.  The appeal turned on whether there was sufficient evidence of a "sudden quarrel," which is an element of voluntary manslaughter.  The state did not argue that there was sufficient evidence, but did argue that Ms. Gooding had invited the error by requesting a lesser-included offense instruction or in the alternative, that the conviction should be upheld because evidence supported a greater offense.

The COA noted that Ms. Gooding had not requested "sudden quarrel" voluntary manslaughter, but had only requested "heat of passion" voluntary manslaughter, which was not given. The COA went on to review KSC precedent defining sufficient provocation and noting that mere words and gestures cannot suffice, but must constitute "severe" provocation.  Reviewing the record, the COA held that the state had not introduced evidence of such provocation:
Gooding's argument with Mills, by all accounts, consisted of angry words, cursing, and gestures stemming from Mills' belief that Gooding wrongfully left him behind. Through it all, Gooding maintained that she stayed calm and tried to get away from the situation. Our Supreme Court has repeatedly held that mere words or gestures, however insulting, do not constitute adequate provocation to support a conviction of voluntary manslaughter. Even when considered in a light most favorable to the State, the evidence presented concerning Gooding's argument with Mills failed to establish provocation sufficient to cause an ordinary person to lose control of his or her actions and reasons.
Finally, the COA considered the state's argument that the conviction should be upheld because evidence supported a conviction of a greater offense.  The COA either rejected or distinguished previous cases that had upheld convictions for voluntary manslaughter:
The decision in Harris did not address the language in Kansas Supreme Court decisions stating that the rule applies only when all the elements in the lesser offense are included in the greater offense.
Even if Harris was correctly decided at the time, subsequent legislative changes have negated the court's holding. When Harris was decided, there was no distinction under the criminal code between an intentional act and a knowing act. As Gooding points out, the terms "intentionally" and "knowingly" now are separated and ranked by degree, with "intentionally" being ranked as a higher degree of culpability than "knowingly." Second-degree murder is still defined as the killing of a human being committed intentionally. Voluntary manslaughter is now defined as the knowing killing of a human being committed upon a sudden quarrel or in the heat of passion.
When Harris was decided, the sole distinction between intentional second-degree murder and voluntary manslaughter was the presence of mitigating circumstances, i.e., sudden quarrel or heat of passion. So when Harris was decided, if the defendant was found guilty of voluntary manslaughter but it was later determined that there was insufficient evidence to instruct the jury on sudden quarrel or heat of passion, an appellate court could still conclude, without engaging in any judicial fact-finding, that the evidence was sufficient to convict the defendant of the greater offense of intentional second-degree murder. Any error in instructing the jury on voluntary manslaughter was harmless and worked in the defendant's favor. 
Now if a defendant is found guilty of voluntary manslaughter but there was insufficient evidence to instruct the jury on sudden quarrel or heat of passion, it does not necessarily follow that the evidence was sufficient to convict the defendant of the greater offense of intentional second-degree murder. The premise of the Harris rule is that a voluntary manslaughter conviction will stand absent evidence of sudden quarrel or heat of passion, "as long as evidence was sufficient to convict the defendant of second-degree intentional murder."
Because insufficient evidence supported the voluntary manslaughter conviction, the COA reversed and remanded with directions to discharge.

[Update: the state filed a PR on October 24, 2014.]

[Further update: the KSC denied the state's PR and the mandate issued on January 16, 2015.]

Saturday, October 25, 2014

Failure to instruct on defense and improper argument combine to require new trial

Washburn intern Jessica Dotter and I won in State v. Ortega, No. 106,210 (Kan. Oct. 3, 2014), obtaining a new trial in a Finney County attempted aggravated interference with parental custody prosecution stemming from Ms. Ortega's attempt to take custody of her children from a school after SRS had taken custody of them.  The COA had already ruled that the district court erred by failing to give instructions on mistake of fact (i.e. Ms. Ortega did not know that she could not take custody of her own children), by failing to give a lesser-included offense instruction on attempted interference with parental custody, and for improper argument related to Ms. Ortega's mistake of fact.  A majority of the COA had held that these errors were harmless.  The KSC agreed with Chief Judge Malone, who had dissented, and held that a new trial was required.  In particular, because the instructions entirely failed to inform the jury regarding the effect of a mistake of fact, the jury was left without guidance, notwithstanding the defense ability to present evidence and argue the point:
Significantly, nothing in the trial informed the jury that Ortega's mistaken belief could be a valid defense. Contrary to the panel's conclusions and State's arguments, the elements instruction for attempted aggravated interference with parental custody did not provide this information—it simply instructed that intent was an element. Further, defense counsel's ability to present evidence and argue regarding the defense provided only part of what the jury needed. Without an instruction, the jury had no directions from the court about how to consider the information. Consequently, the only direction the jury received was misdirection in the form of the prosecutor's statement that the lack of notice was irrelevant and did not matter.

Because of the compounding effect of the errors in this case, the KSC applied a constitutional harmless error test and held that the state failed to prove beyond a reasonable doubt that the errors were harmless.

[Update: on remand, the prosecutor elected to not retry Ms. Ortega on the charge of attempted aggravated interference with parental custody and dismissed that charge.]

Sunday, October 12, 2014

Texas conviction for evading arrest is a nonperson offense

Samuel Schirer won in State v. Long, No. 110,852 (Kan. App. Sept. 19, 2014)(unpublished), obtaining a new sentencing hearing in a Shawnee County aggravated battery prosecution.  The only issue was the proper person/nonperson classification for a Texas conviction for evading arrest.  The answer to the question depended on which subsection of the Kansas offense of fleeing and eluding was most comparable:
As Long contends, K.S.A. 8–1568(a) covers the same criminal conduct as Tex. Penal Code Ann. § 38.04(b)(1) (Vernon 2001); both statutes prohibit a person from using a motor vehicle to flee from or evade a known police officer who is attempting to detain that person. A violation of K.S.A. 8–1568(b) requires additional conduct that is not included in the Texas statute.
The court looks to the most comparable Kansas offense to determine whether the conviction is classified as a person or nonperson crime.  Therefore, although K.S.A. 8–1568(b) may cover similar conduct as the Texas statute, K.S.A. 8–1568(a) is more comparable as it does not require additional actions beyond those required by the Texas statute. Accordingly, the district court should have classified Long's Texas conviction as a nonperson offense since a first conviction of K.S.A. 8–1568(a) is a nonperson offense.
[Update: the state did not file a PR and the mandate issued on October 23, 2014.]

Saturday, October 11, 2014

Evidence of later homicide is improper bad acts evidence

Joseph A. Desch won in State v. Macomber, No. 108,301 (Kan. App. Sept. 19, 2014)(unpublished), obtaining a new trial in a Shawnee County second-degree murder prosecution.  Mr. Macomber was accused of several crimes in three separate prosecutions.  In one prosecution, a jury had convicted him of attempted first-degree murder, criminal possession of a firearm, and other charges in Marshall County.   In another Marshall County prosecution, a jury convicted Mr. Macomber of kidnapping, aggravated burglary, criminal possession of a firearm, and other charges.  All of these offenses were alleged to have happened after Mr. Macomber fled from crimes committed in Shawnee County, the instant appeal.  In a third trial in Shawnee County, the state charged Mr. Macomber with first-degree murder and criminal possession of a firearm; a jury convicted Mr. Macomber of criminal possession of a firearm and second-degree murder, given as a lesser.

On appeal, Mr. Macomber claimed the Shawnee County criminal possession of a firearm prosecution violated the Double Jeopardy Clause.  The COA agreed:
Macomber's possession of a firearm consists of a unitary course of conduct, and because the legislature intended that the minimum unit of prosecution for violating K.S.A. 21–4204 is a single continuous act of possession, Macomber was subject to double jeopardy in this case and his conviction for criminal possession a firearm must be reversed.
During trial, the district court admitted evidence of the Marshall County homicide hours after the Shawnee County incident ostensibly to show the gun  in question worked.   The COA also agreed with Mr. Macomber that such evidence was irrelevant:
Here, we have no difficulty concluding that virtually none of the evidence presented to the jury concerning the encounter between Macomber and Salcedo was relevant to proving the particular disputed material fact—i.e., whether Macomber's gun was susceptible to an accidental discharge. Salcedo's professional history, Macomber's speeding, the ensuing chase, Macomber's aggressive assault and eventual shooting of Salcedo in the back, the damaged bulletproof vest, and Salcedo's lengthy recovery—none of this has any bearing whatsoever on the mechanical state of Macomber's gun.
Even if there was some vestigial relevance of the bare fact that the gun was discharged properly within a few hours of the Lofton shooting, when it is shorn of the irrelevant context, the evidentiary value of that fact approaches zero. As such, the evidence had virtually no probative value. On the other hand, it was highly prejudicial in character. The State presented evidence that Macomber pointed a gun at the head of a sympathetic young police officer (who thought he might die), forced him onto the ground, and shot the officer twice, once in the back. As such, the district court abused its discretion when it determined that the probative value of the evidence outweighed its potential for undue prejudice.
The COA held that because of the nature of the evidence and the repeated emphasis on that evidence, the error was not harmless and reversed the second-degree murder conviction and remanded for a new trial.

[Update: the state did not file a PR and the mandate issued on October 23, 2014.]

There's no place like home!

Just a quick post to note that Kansas Defender Carl Folsom returned to Kansas at the beginning of October.  Carl has spent a couple of years in the Muskogee office of the federal public defender office, first as a writing and research specialist and later as an assistant public defender.  Carl has taken a position in the Topeka office of the federal public defender office, so he'll be doing the same work, but back in Kansas, where he belongs!  Welcome back, Carl!