Sunday, November 16, 2014

Statements obtained with poor translation are involuntary and hearsay

Branden A. Bell and Sarah G. Hess won in State v. Fernandez-Torres, No. 110,645 (Kan. App. Oct. 24, 2014) affirming Judge Kittel's suppression order in a Douglas County aggravated indecent liberties prosecution. 

Mr. Fernandez-Torres was not in custody and had received at least some (albeit somewhat unclear) Miranda warning, so the only issue was the voluntariness of his incriminating statements obtained when an officer was being used as a Spanish-translator during an interrogation.  The district court found that the statements were not the product of Mr. Fernandez-Torres free and independent will.  The COA held that evidence supported that finding:
The district court was particularly troubled by the last two enumerated factors: the fairness of the interrogation and Fernandez' fluency in English. We share that concern. In this case, the two factors are closely related, so we discuss them together.
Fluency in English typically comes into play when a suspect is literate in some other language but is interrogated in English.  Illustrating the seamlessness of the generically labeled factors, fluency would also be implicated if a suspect knew only English but his or her mental incapacity substantially impaired his or her ability to communicate. That situation might also bear on mental condition and, possibly, intellect. This case presents a variant because Brixius sought out a translator, so the interrogation could be conducted in Spanish—Fernandez' primary language, although Fernandez understands some spoken English. 
To be plain about it, Marino lacked the bilingual capacity and the training to function effectively as a translator in an extended interrogation about a sex crime against a child. The two experts agreed that Marino mistranslated both questions and answers and sometimes substantially paraphrased what was being said. The district court's expressed concern about whether Brixius and Fernandez were fully communicating in an effective way finds sufficient support in the record evidence.
 . . . .
Brixius' interrogation approach effectively informed Fernandez both that the police had irrefutable scientific evidence that he had touched A.L.G.'s vagina and that if he had done so only for a second his actions were "okay" and could be dealt with. The underlying message to Fernandez was this: We have overwhelming evidence against you, but if you tell us you did it just briefly, nothing much will happen to you. Brixius maneuvered Fernandez into a situation in which yielding to the suggestion would seem to carry a material benefit, though quite the reverse was true. An unwary or pliable subject—Fernandez, based on the district court's findings, fit that bill—could be induced to accede to the suggested version of events because it looked to be convenient, compliant, and advantageous. In that situation, a suspect may no longer be especially concerned about falsity of the statement. The interrogation strategy lures the subject in, snares him or her with representations about the strength of the evidence (that may or may not have any basis in fact), and then offers what appears to be a way out through admissions deliberately and incorrectly cast as significantly less legally and morally blameworthy than alternative explanations of the evidence.
. . . .
In this case, looking at the whole of the circumstances, we conclude, as did the district court, that the inculpatory statements Fernandez made to Brixius were sufficiently tainted by the interrogation process and Fernandez' vulnerability to be something less than freely given.
The COA also agreed that, because the district court could properly conclude that the statements were likely false, the statements were inadmissible hearsay under K.S.A. 60-460(f)(2)(B).

[Update: the state did not file a PR and the mandate issued on December 1, 2014.]

Saturday, November 15, 2014

Incriminating nature of Q-tips not apparent

Rick Kittel won in State v. Rice, No. 110,396 (Kan. App. Oct. 24, 2014)(unpublished), obtaining a suppression order in a Lyon County drug prosecution.  The case involved the seizure of some Q-tips seen in plain view after officers were given consent to enter an Emporia apartment as part of a DCF home check.  After the Q-tips tested positive for methamphetamine, officers obtained a warrant and discovered other evidence of drugs and paraphernalia.  The COA agreed that the Q-tips and the evidence derived from the Q-tips should have been suppressed:
The seizure of the Q-tips in this case cannot be upheld under the plain-view exception because their incriminating nature was not apparent without conducting some further search of the Q-tips, i.e ., seizing the Q-tips for further observation and field testing.  According to Officer Sage, at a glance, the Q-tips did not appear to be discolored. It was not until they were actually seized that a discoloration was observed. And it was not until the Q-tips were tested that it was clear they were contaminated with methamphetamine. Because of these facts, the plain-view exception does not apply.
Because none of the exceptions to a warrantless search and seizure existed at the time Officer Sage seized the Q-tips and had them tested, the warrantless seizure of the Q-tips was unconstitutional. Thus, the Q-tips found on the coffee table were inadmissible at trial under the exclusionary rule.
[Update: the state did not file a PR and the mandate issued on December 1, 2014].]

Sunday, November 09, 2014

Fifty-seven year payoff plan for forgery restitution an abuse of discretion

Reid T. Nelson won in State v. Herron, No. 110,047 (Kan. App. Oct. 24, 2014), obtaining a new restitution hearing in a Douglas County forgery case.  The only issue on appeal was whether the district court abused its discretion when it imposed a $6,864 restitution judgment.  The district court had questioned whether Ms. Herron could pay that amount of restitution, but deemed that, as a matter of law, it was unable to reduce or waive restitution upon a finding of inability to pay.  The COA majority disagreed:
Our court also has noted that "a defendant's ability to pay restitution is a relevant factor for a district court to consider in determining whether to order restitution and the proper amount."  That's consistent not only with Schulze, but also with Goeller, where the Kansas Supreme Court noted that it was the defendant's responsibility to come forward with evidence of his inability to pay. If a defendant's inability to pay wasn't intended to be a compelling circumstance that could justify excusing or reducing restitution payments, then the Supreme Court would not have explained that the defendant is responsible for introducing such evidence. If the ability to pay restitution didn't impact restitution, then the evidence Goeller was criticized for not introducing would not even have been relevant. 
We do not suggest that poverty alone is always a compelling circumstance that should relieve a defendant of the obligation to pay restitution, but poverty alone can justify a decision to not impose restitution or to reduce it. In assuming that it could not, the district court made an error of law and thus abused its discretion by not considering whether Herron's poverty made the amount of restitution she was ordered to pay unworkable.
The COA went on to analyze whether requiring the district court abused its discretion by holding that $6,864 restitution in this case was workable:
Herron's case is similar to Burke or Orcutt. Like in Burke, if Herron paid the $10 per month the State suggested, she would be making payments for 57 years—an inordinately long time compared to her 18-month probation. Herron was 33 years old at the time the court ordered restitution. While her probation could be extended (giving the court supervisory power over her until payments were made), it's not reasonable to keep someone under court supervision to make restitution payments for 57 years. By contrast, if Herron attempted to pay the restitution she owed during her 18-month probation, she would be paying $381.34 per month, which would constitute more than half of her total income—obviously an unworkable situation at her income level. 
The COA majority did not determine what would be workable, but simply held that the plan entered (requiring more than half of Ms. Herron's meager income) was an abuse of discretion.

[Update: the state filed a PR on November 20, 2014.]

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

Sunday, November 02, 2014

Public defender appointed as district judge

Here is the governor's press release announcing the appointment of Paul Hickman, Deputy Public Defender from the Salina Regional Public Defender's Office as district judge:
“I’d like to thank Paul for his willingness to serve his community in this capacity,” said Governor Brownback. “With his experience as both a prosecutor and a public defender, he will be an excellent asset to the 28th Judicial District.”
Congratulations and best wishes Paul!

[Here is coverage of Judge Hickman's investiture from the Salina Journal.]

Saturday, November 01, 2014

Defense attorneys must communicate with client regarding continuances

Michael P. Whalen won in Sola-Morales v. State, No. 104,288 (Kan. Oct. 24, 2014), obtaining an evidentiary hearing with regard to Mr. Sola-Morales' IAC claim.  Specifically, Mr. Sola-Morales claimed that his trial attorney had lied to him regarding continuances and that, as a result, he had lost his statutory right to a speedy trial.  The KSC recognized that for purposes of determining whether to have a hearing, the district court (and a reviewing court) have to assume that the allegations in the petition are true.  And when it did this, it determined that if trial counsel had lied to Mr. Sola-Morales regarding the continuance, he might have lost his ability to independently object to the continuances:
Here, because of trial counsel's alleged conduct, Sola-Morales appeared to have lost any opportunity to timely and "strenuously object" to continuances his counsel proposed and later received. See State v. Hines, [269 Kan. 698, 700 7 P.3d 1237 (2000)]. Sola-Morales also appeared to have lost any opportunity to "speak out against" the continuances, e.g., to advise the court of his opposition. See [State v. Arrocha, 30 Kan. App. 2d 120, 127, 39 P.3d 101 (2002)]. So he arguably may also have lost any opportunity to avail himself of the arguments, rationale, and holding in Hines, as corroborated in Arrocha. As Sola-Morales argues in his petition for review, counsel's lies—and other questionable conduct—seemingly prevented him from participating in his own defense.
The KSC recognizes that, under its own case law, communication with the client about continuances is necessary and, failure to communicate may result in a conflict of interest and ineffective assistance of counsel

December 2014 KSC docket

Here are the criminal cases on the KSC docket for December 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 at the appellate court website (here) and archived (here)if you would like to watch any of these arguments.

December 8--Monday--a.m.

State v. William Barber, Jr., No. 106,911 (Cherokee)
Direct appeal (petition for review); Aggravated battery
Michelle A. Davis
[Affirmed; per curiam; July 10, 2015]
  1. Improper admission of bad acts evidence
  2. Erroneous limiting instruction on bad acts evidence
  3. Improper closing argument
  4. Improper acceptance of verdict without confirming accuracy
State v. Michelle Bolze-Sann, No. 105,297 (Shawnee)
Direct appeal (petition for review); Involuntary manslaughter
Rick Kittel
[Affirmed; Luckert; June 19, 2015]
  1. Insufficient evidence
  2. Failure to dismiss for failure to show mens rea
  3. Denial of right to be present and Public Trial in response to jury question
  4. Insufficient evidence of alternative means of involuntary manslaughter
  5. Failure to define "imminence"
  6. Failure to give instruction related to consideration of regulation
  7. Failure to grant mistrial after intimidation of witness
  8. Improper acceptance of verdict without confirming accuracy
State v. Mark Alexander, No. 107,410 (Shawnee)
Sentencing appeal (petition for review)
Christina M. Kerls
[Petition for review withdrawn Jan. 13, 2015]
  1. Improper sentencing to DOC rather than placement at LSH
December 9--Tuesday--a.m.

State v. Ramon Rodriguez, No. 106,731 (Johnson)
DNA testing appeal (petition for review)
Michael J. Bartee
[Affirmed; Nuss; June 5, 2015]
  1. Failure to make findings of fact and conclusions of law
  2. Failure to grant new trial based on new forensic DNA testing
State v. Daniel Parker, No. 111,044 (Riley)
Direct appeal; First-degree murder
Lydia Krebs (brief); Peter Maharry (argue)
[Affirmed; Rosen; March 6, 2015]
  1. Improper closing argument
State v. Jason Brammer, No. 106,696 (Marshall)
Direct appeal (petition for review); DUI manslaughter
Corrine E. Johnson
[Affirmed; Biles; Feb. 20, 2015]
  1. Insufficient evidence of alternative means
  2. Failure to instruct on proximate cause
  3. Erroneous lesser-included offense instructions
State v. Carl Vrabel, No. 108,930 (Johnson)
State appeal (petition for review)
Jonathan A. Bortnick
[Rvd/rmd; Johnson; April 24, 2015]
  1. Suppression of controlled buy by officer outside of jurisdiction
December 11--Thursday--a.m.

State v. Jerry Sellers, No. 109,080 (Harvey)
Direct appeal (petition for review); Agg indecent liberties
Michael P. Whalen
[Affirmed; Beier; March 6, 2015]
  1. Failure to grant motion for arrest of judgment
State v. Jerold Dunn, No. 106,586 (Labette)
Direct appeal (petition for review); Forgery/stalking
Rick Kittel
[Affirmed; July 15, 2016]
  1. Defective complaint (forgery)
  2. Insufficient evidence (stalking)
State v. Justin Dern, No. 106,406 (Pottawatomie)
Direct appeal (petition for review); Agg criminal sodomy
Heather R. Cessna
[Affd/Rvd; Stegall, Nov. 22, 2015]
  1. Improper admission of prior bad act evidence
  2. Failure to suppress confession
  3. Insufficient evidence of alternative means
  4. Insufficient evidence
  5. Improper burden of proof instruction
December 12--Friday--a.m.

State v. Tommy James, No. 106,083 (Franklin)
Direct appeal (petition for review); Possession with intent
Randall L. Hodgkinson
[Rvd/rmd; Stegall; May 8, 2015]
  1. Improper search of cell phone
  2. Improper admission of text messages
  3. Improper admission of officer testimony regarding text messages
  4. Improper prosecutorial comment
  5. Insufficient evidence of intent to distribute
State v. Larry Overman, No. 105,504 (Cherokee)
Direct appeal (petition for review); Manufacture
Matthew J. Edge (brief); Joanna Labastida (argue)
[Affirmed; Johnson; April 17, 2015]
  1. Failure to suppress evidence
State v. Cody Funk, No. 107,422 (Cloud)
Sentencing appeal (petition for review)
Gerald E. Wells
[Affirmed; Biles; May 15, 2015]
  1. Lifetime post-release is Cruel and Unusual