Saturday, December 12, 2015

January 2016 KSC docket

Here are the criminal cases on the KSC docket for January 25-29, 2016.  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 25--Monday--a.m.

State v. Ebony Nguyen, No. 112,316 (Sedgwick)
Sentencing appeal
Joanna Labastida
[Affirmed; Nuss; May 20, 2016]
  • Failure to grant downward durational departure
State v. Shelbert Smith, No. 110,061 (Sedgwick)
Sentencing appeal
Michelle A. Davis
[Rvd/Rmd; Johnson; August 5, 2016]
  • Out-of-time notice of appeal (Ortiz)
State v. Kyle Beltz, No. 111,785 (Sedgwick)
Direct appeal; felony murder
Ryan J. Eddinger
  • Improper admission of prior drug sales and marijuana grow
  • Insufficient evidence of proximate cause of death
  • Failure to give self-defense instruction
  • Failure to give unanimity instruction on distribution

January 26--Tuesday--a.m.

State v. Sarah Sessin, No. 110,054 (Geary)
Direct appeal (petition for review); possession
Randall L. Hodgkinson
[Petitions for review dismissed by agreement; January 26, 2016]
  • Fourth Amendment violation
  • Improper aiding and abetting instruction
  • Insufficient evidence

January 27--Wednesday--a.m.

State v. Mitchell Northern, No. 112,955 (Wyandotte)
Sentencing appeal
Samuel Schirer
[Affirmed; Rosen; July 22, 2016]
  • Notice of appeal from sentence was timely because sentence not complete
  • If notice of appeal untimely, Ortiz exception applied
State v. Dana Chandler, No. 108,625 (Shawnee)
Direct appeal; first-degree murder
Nancy Ogle
  • Improper imposition of hard-50 sentences
  • Improper inference stacking
  • Improper admission of prior bad act evidence
  • Improper prosecutorial argument
State v. Jeff Dickey, No. 110,325 (Saline)
Probation violation appeal (petition for review)
Samuel Schirer
[Vacated; Stegall; October 7, 2016]
  • Improper admission of prior sentences after revocation
  • Improper scoring of prior burglary conviction in criminal history

January 28--Thursday--a.m.

State v. Breonna Wilkins, No. 109,313 (Shawnee)
Direct appeal (petition for review); aggravated intimidation of a witness
Randall L. Hodgkinson
[Reversed; Malone; September 9, 2016]
  • Insufficient evidence
  • Statute is unconstitutionally vague

January 29--Friday-a.m.

State v. Michael West, No. 111,124 (Riley)
Sentencing appeal (petition for review)
Christina M. Kerls
[Petition for review dismissed as improvidently granted]
  • Improper restitution order when plan was unworkable

Saturday, December 05, 2015

No concern for welfare supporting welfare check

Rick Kittel won in State v. Canfield, No. 112,610 (Kan. App. Nov. 13, 2015)(unpublished), obtaining reversal of a Shawnee County drug conviction. Police had received a call from a caller who claimed he was the father of Ms. Canfield's children expressing concerns about the children. Police went to the house and pounded on the door until Terrance Jackson came to the door and told police that Ms. Canfield was not there. From the doorway, the officer could see two children, but no contraband in plain view. The children appeared clean and unharmed. The officer arrested Jackson and another officer entered the home. Upon entry, officers found Ms. Canfield sitting on a bed and arrested her on an outstanding warrant and, during a search incident to arrest, found drugs.

The district court had denied the motion to suppress holding that the officers were permitted to make a warrantless entry for a "welfare check" of the children. The COA disagreed:
When Jackson eventually reopened the door, Officer Cruse warned Jackson about obstructing his efforts to execute the arrest warrant on Canfield. He said nothing to Jackson about harboring children in a dangerous environment. But he was able to see behind Jackson the two children standing in the hallway. The children appeared to be clean, and there was no contraband in plain view. The home appeared to be clean and well taken care of. There was no indication the children were in immediate danger.

Officer Cruse did not speak to the children. He did not ask Jackson about the children. He did not inquire who the children were, where their parents were, who was looking after them, or whether there had been any drugs consumed in their presence. The only suspicion he had was that if the children were there, Canfield also may be there. At that point Officer Cruse entered the residence, not for the purpose of addressing the needs of the children but to arrest their mother. He walked right past the children and into the room where Canfield sat on the bed.

There is no testimony that either officer did anything whatsoever to look after the well-being of the children during the entire time they were at Canfield's home. The generalized concern expressed in the call to the police dispatcher was not borne out by any observations by the police officers when they arrived at the Canfield home. We find no evidence in the record which would lead a prudent and reasonable officer to see the need to enter Canfield's home to protect the children. Thus, we conclude the district court erred in finding that Officer Cruse was justified in entering Canfield's home to conduct a welfare check of the children.
As a result, the COA reversed the drug conviction.

[Update: the state did not file a PR and the mandate issued on December 28, 2015.]

Saturday, November 28, 2015

Dispositional departure was a "no brainer"

Janine Cox won in State v. Snyder, No. 112,044 (Kan. App. Nov. 6, 2015)(unpublished), affirming Judge Fleming's downward dispositional departure sentence in a Labette County drug prosecution. Judge Fleming adopted several mitigating factors asserted in Mr. Snyder's departure motion, including appropriate action since charging, no criminal history, family support, and taking responsibility for his actions. The COA held that evidence supported all of these factors, even if contested by the state. The COA did acknowledge that a lack of criminal history, by itself, might to support a departure, but that it could be considered along with other mitigating factors, as was done in this case. Ultimately, the COA affirmed:
Here, the district court found the decision to grant the departure was a "no brainer" because "prison doesn't make people better citizens, generally, and it's punishment for the sake of punishment." The district court considered the factors in light of the purposes of the KSGA—(1) reduce prison overcrowding, (2) protect public safety, and (3) standardize sentences so similarly situated offenders are treated the same in order to reduce the effects of racial or geographic bias. The district court found Snyder was amenable to probation and was not a threat to public safety based on his lack of criminal history, his good behavior while the case was pending, the fact he took responsibility for his actions, and his family support. Taking all of these factors into consideration, we find the district court did not abuse its discretion when it granted Snyder's departure motion.
[Update: the state did not file a PR and the mandate issued on December 14, 2015.]

Saturday, November 21, 2015

Social guest generally not subject to search warrant of premises

Tracey T. Beverlin won in State v. Hunter, No. 112,963 (Kan. App. Oct. 30, 2015)(unpublished), summarily affirming Judge Meisenheimer's suppression order in a Pratt County drug prosecution. Officers had a search warrant for a residence and when they executed that warrant, officers met Ms. Hunter at the front door. Ms. Hunter provided her ID to the officers from her purse and then indicated she wanted to leave. Officers detained her telling her she was subject to the search warrant. Officers conducted nonconsensual search of Ms. Hunter's purse and found amphetamines and marijuana.

At trial, Ms. Hunter argued that the officer was not authorized to search her purse pursuant to the warrant because there was insufficient evidence of a relationship between her and the residence. The district court agreed and the COA affirmed. The parties agreed that a social guest at a premises that is subject to a search warrant is not generally subject to a search, unless circumstances suggest a relationship between the person and the illegal activities described in the warrant. But the COA held that the district court's finding that the state had failed to prove such circumstances was supported:
In any event, as the district court found, there was no evidence establishing a relationship. The search warrant application was based on Reyna's report to McCarley that he previously had smoked marijuana and methamphetamine with Roberts at the residence on Brendon Court. Specifically, Reyna told McCarley that on the evening of December 14, 2013, Reyna was at the residence and observed Roberts crush up some type of prescription pills, mix them into a solution, and use a needle to inject the solution into his body. Reyna told McCarley that Roberts did not have a prescription for these pills. As the district court found, there was absolutely no evidence connecting Hunter with the illegal activities described in the application for the search warrant. The district court found this lack of connection to be especially apparent because it had been more than 2 days from the time that Reyna had observed Roberts crushing up the prescription pills to the time that Hunter's purse was searched without her consent.
[Update: the state did not file a PR and the mandate issued on December 14, 2015.]

Trooper's repeated failure to appear justified dismissal with prejudice

In State v. Stufflebean, No. 112,873 (Kan. App. Oct. 30, 2015)(unpublished), the COA affirmed a magistrate judge's dismissal of a traffic citation with prejudice after a Highway Patrol Trooper failed to appear for the bench trial. Recognizing that dismissal with prejudice is an extreme remedy, the COA still upheld the magistrate judge's action:
Here, the record on appeal reflects that the magistrate judge dismissed the charge against Stufflebean with prejudice because the trooper who issued the traffic citation failed to attend the bench trial. While there is no transcript of the original bench trial in the record, the district judge affirmed the magistrate judge's dismissal in part because Stufflebean had driven over an hour each way to appear in the Jefferson County District Court two previous times—once for the first appearance and once for the bench trial at which Moomau was absent.

It was not unreasonable for the magistrate judge to find that requiring Stufflebean to appear in court yet again was prejudicial to him, especially after he needlessly traveled to Jefferson County at least one other time due to the trooper's failure to attend the bench trial. It is also reasonable not to require a defendant to travel multiple times in order to resolve a traffic infraction when the issuing officer failed to attend the bench trial with no excuse. Also significantly, the magistrate judge's decision did not punish the public and it did not create windfall for Stufflebean. The charge against Stufflebean was not for a violent or especially dangerous offense, meaning he was not an appreciable danger to the public. Stufflebean at most faced a fine if found guilty, meaning he did not gain a substantial windfall through the dismissal when compared to other hypothetical defendants facing prison sentences or large restitution obligations.
[Update: the state did not file a PR and the mandate issued on Decvember 14, 2015.]

Saturday, November 14, 2015

Drinking and walking is not necessarily a crime

Donald R. Snapp won in State v. Crane, No. 112,494 (Kan. App. Oct. 23, 2015)(unpublished), obtaining a suppression order in a McPherson County drug prosecution. Mr. Crane was arrested for crossing the street as a pedestrian under the influence. The COA held that Mr. Crane was not illegally crossing a neighborhood street and that officers' brief encounter with him on another street did not establish probable cause of a violation of K.S.A. 8-1543, which states: "A pedestrian who is under the influence of alcohol or any drug to a degree which renders such pedestrian a hazard shall not walk or be upon a highway except on a sidewalk."

The COA first held that, contrary to the district court's holding, Mr. Crane could not have been violating other pedestrian laws (like failing to cross at a crosswalk). Finally, the COA observed that simply consuming alcohol does not equate with being a hazard:
While it is clear from the record Crane had consumed alcohol, what is not clear is that he was intoxicated and a hazard in crossing the street to his friend's house. He crossed the street in a legal fashion, he had successfully crossed one street before the officers moved in to arrest him, he was able to walk and communicate successfully, and there were no cars approaching from either direction before or after Crane crossed the street. When the totality of the circumstances is considered, no objectively reasonable police officer would have had probable cause to arrest Crane for being a pedestrian under the influence. All evidence of criminal wrongdoing obtained after Crane's unlawful
seizure was therefore tainted.
[Update: the state did not file a PR and the mandate issued on December 28, 2015.]

No good-faith exception for illegal cell phone searches

Timothy J. Grillot won in State v. Jones, No. 113,397 (Kan. App. Oct. 23, 2015)(unpublished), affirming Judge Fleming's suppression order in a Labette County prosecution. The state conceded that a cell-phone search was illegal pursuant to Riley v. California, but argued that the evidence obtained as a result should still be admitted under the good-faith exception. The COA noted that there was only one federal court case and one non-final Kansas COA case upholding cell-phone searches incident to arrest. As a result, the COA agreed with Judge Fleming that the good-faith exception did not apply:
On the facts presented in the defendant's motion to suppress evidence (and not challenged through evidence by the State), Jones was a passenger in a car involved in a brief police chase, and officers arrested him when he got out of the car. An officer then found cash in Jones' pants pocket and searched data on Jones' cell phone to see whether the cash might be tied to illegal activity. The officer had no warrant, and the State presented no testimony or argument that the officer needed to examine any data on the cell phone to protect anyone's safety. On these facts, the district court properly granted the defendant's motion.
[Update: the state did not file a PR and the mandate issued on December 28, 2015.]

Sunday, November 08, 2015

Insufficient evidence of theft by deception

Randall Hodgkinson won in Statev. Laborde, No. 107,872 (Kan. Nov. 6, 2015), reversing a Clay County conviction for theft by deception for insufficient evidence. The KSC held that “[t]he State did not produce evidence proving one of the necessary elements of theft by deception—that Laborde obtained control over Price's property by means of a false statement or representation that deceived Price and on which he relied.

The KSC explained the poof needed to convict of theft:
In relevant part, K.S.A. 21–3701 defines theft:
      “(a) Theft is any of the following acts done with intent to permanently deprive      the  owner permanently of the possession, use or benefit of the owner's property:
‘(1) Obtaining or exerting unauthorized control over property;
‘(2) obtaining by deception control over property;’ ”
Theft by deception sets out different elements that the State must prove than theft by unauthorized control. Theft by deception demands a specific kind of proof from the State. The statutory language demonstrates clearly that the legislature intended to require the State to prove that the intended victim “was actually deceived and actually relied upon the false representation in order for the defendant to be found guilty of theft by deception.” State v. Finch, 223 Kan. 398, 402, 573 P.2d 1048 (1978). The statutory phrase “by deception” indicates an agency or instrumentality as a causative factor. The State must prove that the defendant “obtained control over another's property by means of a false statement or representation.” 223 Kan. at 404, 573 P.2d 1048.
The facts presented at trial did not prove that Ms. Laborde “obtained control over another's property by means of a false statement or representation.” Rather, the evidence, construed in favor of the State, only showed that Ms. Laborde “exert[ed] unauthorized control over property” (by allegedly using deception to prevent the alleged victim from getting his property back from her possession). This was not sufficient to convict of theft by deception.
In reversing the conviction, the KSC described the procedural history of the case as follows:
In this peculiar case, the State brought charges against the defendant asserting elements under one statutory theory of theft [theft by deception], but the jury convicted the defendant under instructions setting out a different theory of theft [theft by unauthorized control]. The Court of Appeals found that the conviction was the result of error invited by both parties and affirmed on that basis. We conclude, however, that the parties never raised on appeal the discrepancy between the charge and the instruction and the case must be analyzed on the terms that the parties argued it, as a matter solely of sufficiency of the evidence. Considered from that perspective, we disagree with the conclusion that the Court of Appeals reached and reverse. [(brackets added by blogger)].
Thus, the KSC held that the sufficiency of the evidence claim was measured by the crime charged in the complaint or information and not necessary the language in the instruction that went to the jury.

Saturday, October 31, 2015

Accidentally showing prejudicial unredacted video requires a new trial

Derek W. Miller won in State v. Barnhart, No. 112,067 (Kan. App. Oct. 9, 2015)(unpublished), obtaining a new trial in a Ford County aggravated battery prosecution. On appeal, Mr. Barnhart argued that the publication of an unredacted video of a key witness required a new trial. The parties had agreed that several statements on the video were so prejudicial that they had to be redacted. But, in error, the unredacted video, including statements about Mr. Barhart's prior history with drugs and alcohol, prior violence, attendance at corrections, failed drug tests, and recent release from prison, was shown to the jury. The district court attempted to correct the oversight by a limiting instruction. But the COA held that the error required a new trial:
The unredacted statements on the video were not played for any legitimate purpose and, as the prosecutor admitted during oral argument, occurred because she was in a hurry and the error was hers. While we recognize the playing of the unredacted video was not intentional, that does not lessen the prejudicial impact it had on Barnhart's right to a fair trial. The video highlighted Barnhart's prior wrongful acts, and as such, these statements were extremely prejudicial.

The final step in determining whether the district court erred in not granting a mistrial is whether the improper statements affected the outcome of the trial. Here, the jury heard multiple highly prejudicial statements about Barnhart. The jury was also called upon to determine the credibility of the victim and the witnesses to decide whether to believe their initial version of the events or their recanted version. Once the jury heard the unredacted video, it was impossible for a limiting instruction to cure, especially when it failed to address all of the prejudicial issues the jury heard when the video was played. We cannot say the error was harmless, and we are not firmly convinced it did not affect the outcome of the trial. The party benefitting from the error always bears the burden of proving it harmless under this standard. The State has not convinced us the error was harmless. Once the video was exhibited and the bell was rung, we find the district court abused its discretion in not granting a mistrial sua sponte when the prosecutor inadvertently violated the agreement with Barnhart's attorney to only exhibit the redacted video to the jury.
[Update: the state did not file a PR and the mandate issued on December 18, 2015.]

December 2015 KSC docket

Here are the criminal cases on the KSC docket for December 14-17, 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.
December 14--Monday--a.m.

State v. Gary Kleypas, No. 101,724 (Crawford)
Direct appeal; capital murder and death sentence
Sarah Ellen Johnson, Meryl B. Carver-Allmond

December 15--Tuesday--a.m.

State v. Jeffrey Pribble, No. 108,915 (Sedgwick)
Direct appeal (petition for review); possession with intent
Lydia Krebs (brief); Peter Maharry (argue)
[Affd/Rvd; Johnson; July 15, 2016]
  • Two counts of no tax stamp are multiplicitous
  • Improper prosecutorial argument
State v. Anson Bernhardt, No. 111,639 (Sedgwick)
Direct appeal; first-degree murder
Michelle A. Davis
[Affirmed; Beier; May 27, 2016]
  • Improper instruction on premeditation
  • Improper ordering of lesser-included offense instructions
  • Failure to give voluntary manslaughter instruction
  • Retroactive application of new hard-50 law violates Ex Post Facto Clause
State v. Zachary Smith, No. 112,250 (Sumner)
Motion to withdraw plea appeal
Charles O'Hara
[Affirmed; Biles; January 29, 2016]
  • Failure to allow withdrawal of plea
  • Late notice of appeal (Ortiz)

December 16--Wednesday--a.m.

State v. George Lamae, No. 110,940 (Wyandotte)
Motion to correct illegal sentence appeal
Gerald E. Wells
[Affirmed; Rosen; March 11, 2016]
  • Failure to grant motion to correct illegal sentence where lack of subject-matter jurisdiction

December 17--Thursday--a.m.

City of Dodge City v. Orie Webb, No. 109,634 (Ford)
Direct appeal (petition for review); DUI
Michael S. Holland, II
  • Improper search
State v. Matthew Fisher, No. 109,706 (Lyon)
Direct appeal (petition for review); attempted second-degree murder
Samuel Schirer
[Affirmed; Beier; April 22, 2016]
  • Doyle violation
  • Improper prosecutorial argument
  • Failure to give lesser-included offense instruction
  • Insufficient evidence of criminal damage to property

Saturday, October 24, 2015

Agreement supported dismissal of drug charges

Michael X. Llamas won in State v. Tyner, No. 112,045 (Kan. App. Oct. 2, 2015)(unpublished), affirming Judge Dickinson's dismissal of two Harvey County drug related cases. Ms. Tyner and her attorney testified that she had entered into an agreement with a prosecutor whereby she would not contest a probation violation proceeding in exchange to the state's agreement to not file some pending charges (the charges at issue in the instant case). The prosecutor testified and indicate that he had not entered into any agreement with Ms. Tyner. On appeal, the state argued that the district court abused its discretion by finding an enforceable agreement. The COA held that substantial competent evidence supported the finding of an agreement and that, therefore, this was simply a credibility contest:
The district judge was faced with a straightforward factual dispute in this matter. The defendant contended a plea agreement prohibited the filing of the two drug-related cases, and the State denied there was any plea agreement. It is the district court's obligation to weigh the evidence and make credibility determinations based on that evidence. Here, the district court was persuaded that there was a plea agreement which prohibited the State from bringing the two drug-related cases, and substantial evidence supports the determination.
As a result, the COA affirmed the dismissals.

[The state did not file a PR and the mandate issue on November 19, 2015.]

Saturday, October 17, 2015

Sufficient factors supported downward dispositional departure

Andy Vinduska won in State v. Lebeuf, No. 112,857 (Kan. App. Sept. 25, 2015)(unpublished), affirming Judge Bosch's downward dispositional departure sentence in a Clay County trafficking in contraband prosecution.  Judge Bosch found several mitigating factors:
(1) Lebeuf's age; (2) that Lebeuf had no recent history of violence; (3) that drug treatment would better protect society than a prison disposition; and (4) reasons "pretty much as stated by [Lebeuf's] attorney to the court." The factors argued by defense counsel were that the degree of harm was significantly less than typical, that Lebeuf had accepted responsibility for his conduct, and that Lebeuf was addicted to methamphetamine.
The COA agreed that the factors regarding age and degree of harm were not substantial and compelling reasons for departure in this case. But the COA affirmed the remaining findings:
As to the remaining factors relied upon by the district court to support a departure sentence, we find that those factors were supported by substantial competent evidence. The presentence investigation report supports the district court’s finding that Lebeuf had no recent history of violent crime. By pleading no contest, Lebeuf elected not to contest the charge and to accept a conviction. The drug and alcohol evaluation confirmed Lebeuf's addiction to methamphetamine and that there was a treatment program available to treat this addiction.
Since the district court found some proper factors supporting the departure, the COA held that the district court did not abuse its discretion by granting a dispositional departure.

[Update: the state did not file a PR and the mandate issued on October 30, 2015.]

Saturday, October 03, 2015

"Ease of access" not relevant when considering prescription drugs

I won in State v. Arb, No. 111,009 (Kan. App. Sept. 11, 2015)(unpublished), obtaining a new trial in a Lyon County distribution of oxycodone prosecution. The main issue on appeal involved problems with jury instructions and Ms. Arb's defense of entrapment. The district court gave an entrapment instruction, including the limitations--found in the pattern entrapment instruction--that entrapment is not available for persons with a previous disposition to commit the offense, which can be shown by "evidence of the circumstances at the time of the sale . . . setting of the price of the Oxycodone by the defendant, solicitation by the defendant to make her sale, prior sales of the defendant, or ease of access of the Oxycodone by the defendant." The COA agreed with Ms. Arb's claim that "ease of access" is not a factually appropriate when dealing with a prescription drug, as it did in this case.
The problem may be better illustrated in considering when ease of access does cut against an entrapment defense. Consider the government agent attempting to make a controlled buy of cocaine or some other illegal drug. If the targeted individual already has the cocaine, that demonstrates unlawful conduct in possessing the drug at all and suggests a predisposition to traffic. After all, the target had to acquire the cocaine in the first place. Similarly, if the target disclaims present possession of cocaine but touts knowledge of how to readily get some, that suggests past conduct indicative of a disposition to trade in the drug. So those circumstances would tend to cloud a defense of entrapment.

But the same inferences cannot be logically or legally drawn from a target's possession of oxycodone obtained with a valid prescription. There is nothing unlawful about filling a valid prescription at a pharmacy. So ease of access in that circumstance is not indicative of a predisposition to engage in illegal drug trafficking. The district court, therefore, erred by instructing the jury otherwise. In this case, the pattern jury instruction should have been tailored to remove that factor. Although district courts should avoid gratuitous rewrites of pattern jury instructions, those instructions can and should be edited to reflect legal principles appropriate to the evidence in a given case.
In addition, the district court failed to give a pattern instruction regarding the burden of proof with regard to affirmative defenses.  In combination, the COA held that the instructional deficiencies constituted clear error and required reversal.

[Update: the state did not file a PR and the mandate issued on October 29, 2015.]

Saturday, September 19, 2015

Restitution is limited to crimes of conviction

Kimberly Streit Vogelsberg won in State v. Miller, No. 111,573 (Kan. App. August 28, 2015), vacating a restitution order in a Sedgwick County burglary and theft prosecution. Mr. Miller argued that the $4,700 restitution order for plumbing and electrical repairs to a home did not relate to the charges for which he was convicted. The COA agreed:
Miller's theft conviction involved only theft of a machete and baby powder; he was neither charged with nor convicted of theft of copper piping or wiring. So the theft conviction cannot support the restitution award.

As for the burglary conviction, we must first review what underlying facts are established based on that conviction. As charged and pled in this case, burglary is entering into or remaining without authority in a dwelling with the intent to commit a theft there.

To the extent Miller might have damaged the property merely by entering it without authority—such as by breaking a door or a lock—restitution might be awarded for that damage because it would have been caused by the act of burglary. But merely entering or remaining in the dwelling does not by itself cause a loss of copper piping or wiring.

Even if we surmise that it was the underlying intent to commit theft of the copper wiring or plumbing that made his unauthorized entry a burglary, that would not affect the outcome here: The mere intent to steal something doesn't cause the loss. It's the act of theft that would cause the loss, and Miller was neither charged nor convicted of theft of the copper items.

The district court's factual finding that these losses were the "direct result of Mr. Miller's actions" is supported by the evidence. But these losses were not the direct result of Miller's crimes of conviction. Accordingly, the district court erred by ordering restitution for the damages caused by removal of the copper wiring and plumbing.
[Update: the state did not file a PR and the mandate issued on October 1, 2015.]

Sunday, September 13, 2015

Unpublished opinions available online!

Here is a news release from the Clerk of the Appellate Court announcing that, at least for future cases, the full text of unpublished appellate decisions will be available online.  This is a welcome change and will allow attorneys and other persons who may not have access to online opinions through a service like Westlaw to get access to unpublished opinions. Plus Kansas Defenders will be able to link to unpublished decisions!

We have seen our appellate courts more and more willing to cite unpublished decisions as persuasive, and this option should facilitate that even more. Now here's hoping that the appellate rules will be amended to dispense with the requirement of attaching unpublished opinions when cited in pleadings (at least if the unpublished decision is available on line).

Saturday, September 12, 2015

General intent required for leaving scene of injury accident

Rick Kittel won in State v. Heironimus, No. 111,749 (Kan. App. August 21, 2015), obtaining reversals of convictions for failure to report an injury accident and leaving the scene of an accident from Reno County. The conviction for failure to report an injury accident had to be reversed because the statute under which Mr. Heironimus was charged had been repealed at the time of the accident. After reviewing KSC precedent on the interaction between criminal intent and traffic offenses, the COA reversed the conviction for leaving the scene of an accident because the district court failed to instruct the jury that general criminal intent was an element:
Because a culpable mental state is required unless the definition of an offense plainly dispenses with that requirement or clearly indicates a legislative purpose to impose absolute liability and K.S.A. 2011 Supp. 8-1602 lacks both these indicators, it is clear that criminal intent must be an element of that offense. As provided by the criminal intent statutes, if a crime lacks a prescribed culpable mental state, "'intent,' 'knowledge' or 'recklessness' suffices to establish criminal responsibility." K.S.A. 2011 Supp. 21-5202(e). The State therefore needed to plead and prove that Heironimus intentionally, knowingly, or recklessly left the scene of an injury accident in violation of the requirements of K.S.A. 2011 Supp. 8-1602(a).
The COA went on to consider whether omission of the general intent requirement was harmless, but under the evidence presented concluded that "it is possible that a jury properly instructed on all elements could have found that Heironimus lacked the required mental element and acquitted him." As a result, the COA reversed and remanded that count for a new trial.

[Update: the state did not file a PR and the mandate issued on September 24, 2015.]

DNA testing statute applies to aggravated indecent liberties under Jessica's Law

Janine Cox won in State v. Kelsey, No. 111,598 (Kan. App. Aug. 21, 2015), obtaining DNA testing in a Labette County aggravated indecent liberties with a child prosecution. Mr. Kelsey argued that the Equal Protection Clause required extending K.S.A. 21-2512, which allows for DNA testing in listed types of cases to all cases involving off-grid sex crimes. The COA followed KSC precedent and agreed that testing should be available to Mr. Kelsey:
Then, more recently, in Cheeks, our Supreme Court rejected the State's suggestion that the severity of the crime was a rational basis to exclude second-degree murder from K.S.A. 21-2512 for the same reason used in Denney. Citing K.S.A. 2012 Supp. 21-6807(a), the court pointed out that even though first-degree murder was classified as an off-grid felony when the legislature enacted K.S.A. 21-2512, the legislature included rape as a crime eligible for postconviction DNA testing and that both rape and second-degree murder, both being level 1 or 2 person felonies, were "'relatively equal in severity.'" In other words, similar does not mean identical when focusing on severity levels of crimes when making this type of analysis.

We are constrained to follow the ruling in Cheeks. As the Supreme Court did in Cheeks, we find no legitimate legislative goal that is met by this distinction in severity levels of the crimes for the purpose of an equal protection analysis. Given Kansas' obvious commitment to exoneration of the innocent through DNA—both sampling and later testing—and following our Supreme Court's lead in extending K.S.A. 21-2512 rather than nullifying the statute in such instances as here, we likewise extend K.S.A. 21-2512 to include testing for those in the same situation as Kelsey.

In so holding, we clarify that, like Cheeks, we are not adding a new crime to the statute's coverage but are expanding the statute to cover a much narrower class of offenders, i.e., offenders convicted of aggravated indecent liberties with a child under the age of 14 and sentenced under Jessica's Law to the mandatory hard 25 life sentence.
Judge Atcheson concurred, but would not have applied a requirement that persons demonstrate that they are "similarly situated" as an element of the Equal Protection claim.

[Update: the state did not file a PR and the mandate issued on September 24, 2015.]

October 2015 KSC docket

Here are the criminal cases on the KSC docket for October 26-29, 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.

October 26--Monday--a.m.

State v. Milo Brown, No. 111,345 (Sedgwick)
Direct appeal; felony murder
Lydia Krebs (brief); Peter Maharry (argue)
[Affirmed; Beier; March 11, 2016]
  • Insufficient evidence of aggravated robbery
  • Insufficient evidence of underlying offense for felony murder
  • Life sentence violates "double rule"
State v. Kenneth Tafoya, No. 107,684 (Sedgwick)
Direct appeal (petition for review); DUI
Heather Cessna
[Affirmed; Stegall; June 17, 2016]
  • Improper use of prior convictions for enhancement
State v. Steven Louis, No. 110,853 (Sedgwick)
Direct appeal; felony murder
Lydia Krebs (brief); Peter Maharry (argue)
  • Failure to give lesser-included offense instructions
  • Failure to instruct that felony murder does not apply to co-felon
  • Improper prosecutorial argument
  • Life sentence violates "double rule"
State v. Felipe Hernandez, No. 108,684 (Sedgwick)
K.S.A. 21-2512 appeal
Janine Cox
[Rvd/rmd; Johnson; January 15, 2016]
  • Improper summary denial of DNA test
State v. Kevin Gray, No. 109,912 (Sedgwick)
Motion to correct illegal sentence appeal
Carl F.A. Maughan
[Affirmed; Nuss; March 18, 2016]
  • Improper summary denial of motion to correct illegal sentence

October 27--Tuesday--a.m.

State v. Gregory Keenan, No. 108,550 (Johnson)
Direct appeal (petition for review); DUI
Courtney T. Henderson
[Affirmed; Beier; August 19, 2016]
  • Failure to grant motion to suppress evidence

October 28--Wednesday--a.m.

State v. Christopher Davisson, No. 109,778 (Neosho)
Motion to withdraw plea appeal
Michelle A. Davis
[Affirmed; Nuss; March 25, 2016]
  • Whether lack of knowledge constitutes excusable neglect for untimely motion
State v. Alesia Warrior, No. 111,524 (Wyandotte)
Motion to correct illegal sentence appeal
Gerald E. Wells
[Affirmed; Beier; March 11, 2016]
  • Retroactive application of Alleyne
State v. Douglas Page, No. 106,368 (Bourbon)
Direct appeal; aggravated indecent liberties with a child
Janine Cox
[Affirmed; Biles; December 31, 2015]
  • Improper admission of evidence of prior bad acts
  • Insufficient evidence of aggravated indecent liberties with a child
  • Improper admission of SANE/SART nurse prelim testimony
  • Improper admission of pornographic photographs
State v. Charles Jones, No. 111,540 (Wyandotte)
Motion to correct illegal sentence appeal
Gerald E. Wells
[Affirmed; Rosen; December 18, 2015]
  • Failure to conduct competency hearing resulted in illegal conviction and sentence

Saturday, August 29, 2015

Promise to not arrest and surrounding circumstances support suppression

Sam Kepfield won in State v. Cousins, No. 112,497 (Kan. App. Aug. 7, 2015)(unpublished), affirming Judge Rose's suppression of incriminating statements in a Reno County aggravated criminal sodomy prosecution.  Judge Rose made the following findings regarding the interrogation:
Considering the totality of the circumstances including defendant's physical condition and the length of the interview, the State has not met the burden of proving defendant's statements were the product of his free and independent will. Primary in this analysis is the detective's statement to defendant, ‘You are not going to be arrested.’ This statement was followed by another statement, ‘I am not arresting you today[,’] but the defendant could have logically interpreted the statement as a promise that he would not, at any time, be arrested for the alleged crimes. The statement was certainly made by a person who defendant reasonably believed had the power or authority to make good on his promise.
The COA rejected the state's claim that Judge Rose did not appropriately evaluate the evidence:
The State is correct in asserting that false statements by law enforcement officers do not automatically render a suspect's confession involuntary. But here, the district court did not rely on any assertion that the officers made false statements to Cousins about the evidence in the case to persuade him to confess to the crimes. Instead, the district court properly relied on the “totality of the circumstances” in determining that Cousins' statements were not the product of his free and independent will.

In summary, as the district court found, the entire interrogation lasted over 3 hours. Cousins was 18 years old and he informed the detectives that he was not feeling well. The detectives repeatedly told Cousins that he was not going to be arrested. At one point Cousins asked, “You want me to just lie and say something to get out of here?” Cousins strenuously maintained his innocence throughout most of the interview. Then, about 2 hours and 20 minutes into the interview, Cousins finally made incriminating statements as a result of leading and suggestive questioning by the detectives. On several occasions, Cousins simply adopted the fact scenarios that were suggested to him by the officers as to how he molested N.A.N. Any one of the circumstances of the interview, standing alone, may not have been enough to make the statements involuntary. However, all the circumstances together support the district court's conclusion that Cousins' statements were not the product of his free and independent will. Thus, we conclude the district court did not err in granting Cousins' motion to suppress his statements.
As a result, the COA affirmed the suppression order.

 [Update: the state filed a PR on September 8, 2015.]

[Further update: the KSC denied the state's PR and the mandate issued on February 2, 2016.]

October 2015 Special KSC docket (Garden City)

Here are the criminal cases on the KSC docket for October 13, 2015, held in Garden City, Kansas. This is a special evening setting of the KSC at Garden City High School.  For the travelling docket, the KSC has published this information page, including briefs in each of the cases.
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) and archived (here) if you would like to listen in to any of these arguments.
October 13--Tuesday--p.m.
State v. Dontae Patterson, No. 109,995 (Sedgwick)
State appeal (petition for review)
Richard Ney
[Reversed; Stegall; April 22, 2016]
  • Whether district court properly suppressed evidence under Fourth Amendment
State v. Charles Logsdon, No. 110,415 (Reno)
Direct appeal; first-degree murder
Shannon S. Crane
[Affd/Vacd; Luckert; April 1, 2016]
  • Failure to grant mistrial after Sixth Amendment violation
  • Improper hard-50 sentence
  • Insufficient evidence
  • Improper instructions on felony murder and aiding and abetting

Saturday, August 22, 2015

Insufficient evidence of amount of damage

Corrine E. Gunning won in State v. Wilson, No. 111,280 (Kan. App. July 31, 2015)(unpublished), reversing a Douglas County felony criminal damage to property conviction related to damage to a shed and a tanning bed found within the shed. Mr. Wilson argued that the state failed to prove that he had caused more than $1,000 of damage, required to show a felony.  The COA noted that the victim testified that material to fix a damaged shed cost $208, but that there was no evidence regarding the cost of labor to repair the shed.  Similarly, the state did not present any evidence of the value of the tanning bed:
Notwithstanding a lack of evidence as to the dollar amount of damage that was sustained to the tanning bed, the State argues in its brief that a reasonable jury could have concluded from the evidence presented at trial that the damage to the tanning bed was equal to or greater than $752. Citing to Cox's testimony that she was told it would cost more to fix the tanning bed than it was worth, the State argues the tanning bed's fair market value on the date it was damaged was the proper measure for the jury to use in determining the amount of damage sustained to the bed. But the State's argument is grounded in impermissible inference stacking. The rule against inference-stacking prohibits a jury from speculating on unjustifiable inferences and is applicable when the evidence is so uncertain or speculative that it amounts only to mere conjecture or possibility. It applies here because there was no evidence to establish what precisely was wrong with the tanning bed; thus, the information provided by the retail sales clerk to Cox that it would cost more to fix the tanning bed than it was worth is without any evidentiary support and speculative. To then rely on this speculative evidence to support a conclusion that the value of the damage sustained to the bed is the fair market value of the bed on the day it was damaged impermissibly stacks an inference upon an inference.

Because there is absolutely no evidence in the record from which a jury could have determined the value of the damage sustained to the tanning bed, we conclude Wilson's conviction must be reversed. Based on the evidence in the record, the proper remedy is to remand the case with directions to resentence Wilson for a class B nonperson misdemeanor conviction for criminal damage to property.
[Update: the state did not file a PR and the mandate issued on September 3, 2016.]

Saturday, August 15, 2015

No bright-line test for invocation of statutory right to counsel in DUI case

Michael S. Holland, II won in Dumler v. Kansas Department of Revenue, No. 106,748 (Kan. July 24, 2015), obtaining a new suppression hearing in a Russell County license revocation proceeding. The lower courts had held that a pre-test request for counsel was insufficient to invoke the statutory right to counsel from K.S.A. 8-1001(k)(10). The KSC held that there was no such bright-line and remanded for further proceedings:
Moreover, the plain language of the advisory tells the person that, after testing, he or she "has the right to consult with an attorney." (Emphasis added.) K.S.A. 2009 Supp. 8-1001(k)(10). The right is stated affirmatively and is not conditioned upon the person making a post-testing request. The State would apparently expect a layperson to intuit that the advisory actually means that, after the testing, the person has the right to request that he or she be allowed to consult with an attorney. We decline to contort the statutory language in that manner.

Consequently, we reject the court-made, bright-line timing rule set forth in Tedder and applied by the majority below. A person may invoke his or her post-testing right to consult with an attorney prior to testing. 
The KSC went on to hold that Mr. Dumler should get a new hearing with the district court determining whether he was invoking the statutory right.

Additionally, after closely reviewing the statute, the KSC held that, if the statute was violated, Mr. Dumler was entitled to suppression as a remedy:
Finally, as a practical matter, if we do not recognize a remedy for a violation of the statutory right to counsel, that provision would be essentially rendered meaningless. "As a general rule, courts should . . . presume that the legislature does not intend to enact useless or meaningless legislation."

Consequently, we hold that suppression of the alcohol testing result is the appropriate remedy for the denial of a driver's statutory right to counsel. Therefore, upon remand, if the district court finds that Dumler requested counsel pursuant to the statutory right to counsel contained in K.S.A. 2009 Supp. 8-1001(k)(10), the proper remedy is to suppress the breath test results in his administrative action.

Saturday, August 01, 2015

State must present evidence of construction zone speed limit to support conviction

Linus A. Thuston won in State v. Sigg, No. 112,577 (Kan. App. July 10, 2015)(unpublished), obtaining reversal of a Allen County speeding in a construction zone conviction. In particular, Mr. Sigg argued that K.S.A. 8-1559(c)--the Kansas statute at issue--requires that "the speed limit shall be effective when appropriate signs giving notice thereof are erected."   The COA reviewed the entire record and held it was insufficient on this point:
in the present case, there is no evidence in the record of a sign notifying drivers of a lower speed limit at the location where Sigg was stopped. Although Officer Smith testified that the location of the stop was in “a placard construction area zone,” he never identified the location of any signs indicating a lower speed limit. Although the State characterizes the evidence as conflicting, the issue presented in this appeal is not whether the construction zone was unmarked. Rather, the issue is whether there is any evidence of a speed limit sign that notified drivers—such as Sigg—of a lower speed limit. Perhaps there were such signs but there is simply nothing in the record to tell us so.
As a result, the COA reversed.

[Update: the state did not file a PR and the mandate issued on August 13, 2015.]

Reference to "mug shot" requires limiting instruction

Adam M. Stolte won in State v. Berney, No. 111,407 (Kan. App. July 10, 2016), obtaining a new trial in a Sedgwick County theft prosecution.  The issue on appeal was the failure to give a limiting instruction after the prosecution introduced evidence that Mr. Berney was identified in a line-up using a "mug shot" suggesting prior arrests or convictions.

The COA observed that the officer referenced the "mug-shot" system five times and concluded that "these references at least suggest that Berney had previously been arrested." While the COA recognized that "an arrest is most assuredly not the same as a conviction, it is at least some evidence that the defendant had committed a prior wrong." As a result, the panel held that a limiting instruction should have been given.

After reviewing the record, the panel distinguished this case from prior cases that had held that reference to a mug-shot does not result in clear error if there was strong evidence to support the jury's verdict. The panel concluded that the jury did not hear such strong evidence in this case, and therefore failure to give the limiting instruction was clear error and required reversal.

For appellate nerds, Judge Leben's concurring opinion will be interesting too. It revolves around what is required to show "clear error." For decades the test for clear error was "firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred."  In 2012 (and since), the Kansas Supreme Court described "clear error" as "firmly convinced that the jury would have reached a different verdict had the instruction error not occurred." This appears to be taking out the "real possibility" language. But Judge Leben observed that the Kansas Supreme Court, in State v. Trujillo, 296 Kan. 625 (2013) explicitly noted that it did not mean to change the substantive test, it merely took out the "real possibility" language to avoid confusion with its recently articulated tests for constitutional and nonconstitutional harmless error. As Judge Leben notes, this distinction is important. It is still proper to consider the impact of an error in terms of "possibilities" under the clear error test.

[Update: the state did not file a PR and the mandate issued on August 13, 2015.]

Friday, July 31, 2015

September 2015 KSC docket

Here are the criminal cases on the KSC docket for September 14-18, 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.

September 14--Monday--a.m.
State v. Charles Shelly, No. 109,292 (Brown)
Direct appeal (petition for review); distribution of precursor
Nancy Ogle
[Sentence vacated and remanded per Snellings]
  • Improper dismissal of appeal due to late notice of appeal
State v. Cara Perry, No. 109,506 (Brown)
Sentencing appeal (petition for review)
Carol Longenecker Schmidt
[Reversed; Beier; March 25, 2016]
  • Improper classification of precursor severity level
 State v. Richard Williams, No. 106,645 (Sedgwick)
Direct appeal (petition for review); criminal threat
Rachel Pickering (brief); Heather R. Cessna (argue)
[Affirmed; Luckert; February 12, 2016]
  • Insufficient evidence of criminal threat
  • Insufficient evidence of alternative means
State v. Gregory Rosa, No. 108,807 (Leavenworth)
Direct appeal (petition for review); possession
Korey A. Kaul
[Affirmed; Stegall; May 27, 2016]
  • Insufficient evidence of possession
  • Improper admission of prior bad acts
  • Improper prosecutorial argument

September 15--Tuesday--a.m.

State v. Brock Collins, No. 108,660 (Sedgwick)
Sentencing appeal (petition for review)
Samuel Schirer
[Affirmed; Biles; December 23, 2015]
  • Failure to make BIDS fee findings
  • Improper term of probation for misdemeanor
State v. Reginald Dupree, No. 110,311 (Sedgwick)
Direct appeal; felony murder
Michael P. Whalen
[Affirmed; Luckert; April 29, 2016]
  • Improper limitation of aiding and abetting instruction
  • Improper amendment of complaint
  • Insufficient evidence of felony murder
  • Failure to charge aiding and abetting
  • Failure to give compulsion defense instruction
State v. Nicholas Dupree, No. 111,518 (Sedgwick)
Direct appeal; felony murder
Kristen Patty
[Affirmed; Luckert; April 8, 2016]
  • Speedy trial violation
  • Batson violations
  • Failure to exclude statements
  • Gruesome photographs
State v. Michael Jordan, No. 106,409 (Sedgwick)
Direct appeal (petition for review); theft
Randall L. Hodgkinson
[Affirmed; Beier; March 25, 2016]
  • Compulsory joinder violation
State v. Tyrone Walker, No. 110,712 (Sedgwick)
Direct appeal; first-degree murder
Carol Longenecker Schmidt
[Affirmed; Stegall; May 27, 2016]
  • Failure to give lesser-included offense instruction
  • Improper prosecutorial argument
  • Failure to grant motion to suppress

September 16--Wednesday--a.m.

State v. Anthony Hankins, No. 109,123 (Johnson)
Motion to correct illegal sentence (petition for review)
Sarah Morrison Rapelye (brief); Catherine A. Zigtema (argue)
[Rvd/rmd; Johnson; April 22, 2016]
  • Improper classification of prior conviction
State v. Michael Daws, No. 108,716 (Wyandotte)
Direct appeal (petition for review); aggravated burglary
Lydia Krebs (brief); Peter Maharry (argue)
[Reversed; Biles; February 19, 2016]
  • Insufficient evidence of aggravated burglary
  • Failure to instruct on lesser-included offense
  • Failure to grant mistrial
State v. Henry Petersen-Beard, No. 108,061 (Saline)
Sentencing appeal (petition for review)
Michelle A. Davis
[Affirmed; Stegall; April 22, 2016]
  • Lifetime postrelease and registration are unconstitutional

September 17--Thursday--a.m.

State v. Brett Seacat, No. 110,360 (Kingman)
Direct appeal; first-degree murder
Reid T. Nelson
[Affirmed; Rosen; January 15, 2016]
  • Improper admission of hearsay statements
  • Improper exclusion of evidence of suicidal tendencies of victim
  • Improper exclusion of defense expert testimony
  • Improper exclusion of victim's prior drug use
  • Failure to strike witness' answer

September 18--Friday--a.m.

State v. Marquis Marshall, No. 110,976 (Sedgwick)
Direct appeal; capital murder
Sarah Ellen Johnson
[Affirmed; Rosen; December 18, 2015]
  • Improper denial of psychiatric evaluation
  • Improper denial of request for new counsel
  • Improper judicial comment on guilt

Sunday, July 19, 2015

Just in Case you want to keep up to date on the law

Paige Nichols has started a new regular podcast called Just in Case that will help keep us up to date on recent SCOTUS, Tenth Circuit, and KSC case law.  Paige is only the smartest attorney I've ever worked with (plus she actually makes continuing education fun), so I know I'll be a regular listener.  You should be, too!  Thanks to Monnat and Spurrier for supporting this new resource for Kansas Defenders!

Saturday, July 18, 2015

Promise to shelter suspect's children leads to habeas relief

Jean K. Gilles Phillips and KU Innocence Project intern Abby West won in Sharp v. Rohling, No. 14-3090 (10th Cir. July 15, 2015), obtaining federal habeas relief from a state murder prosecution from Shawnee County.  The Kansas Supreme Court affirmed Ms. Sharp's conviction in 2009, rejecting her claim that statements made to investigators were involuntary and should have been suppressed.  The Tenth Circuit held that this holding was a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" and thus warranted relief under federal habeas law:
The Kansas trial court found Ms. Sharp was not “operating under any promises.” The supreme court reviewed that determination and concluded substantial competent evidence showed Detective Wheeles did not promise Ms. Sharp leniency, or alternatively, any promise of leniency was conditioned on Ms. Sharp not inculpating herself. As we point out below, the court was not clear on this next point, but it also decided Ms. Sharp was not operating under a promise to help find shelter for her and her children, or alternatively, any promise to help Ms. Sharp’s children was a noncoercive collateral benefit because it would not directly benefit Ms. Sharp. We conclude (1) the supreme court’s voluntariness determination was based in significant part on its fact findings about Detective Wheeles’s alleged promises; (2) it unreasonably found Detective Wheeles did not promise Ms. Sharp leniency; and (3) it unreasonably found Detective Wheeles did not promise to help Ms. Sharp and her children; or it decided any such promise did not induce Ms. Sharp to confess, which is a voluntariness determination and not a factual finding.
The Tenth Circuit held that the improper admission was not harmless and therefore granted habeas relief, subject to retrial by the state.

Here is coverage in the Lawrence Journal-World.

Saturday, July 11, 2015

Failure to investigate and call critical witnesses results in new trial

Richard Ney won in Gadbury v. State, No. 111,367 (Kan. App. June 19, 2015)(unpublished), granting Mr. Gadbury a new trial in a Ford County rape and aggravated criminal sodomy prosecution. Mr. Gadbury sought habeas relief based on ineffective assistance of counsel on several points. The COA noted that this case, where the defense was based on consent, depended on the jurors' views of credibility of the complaining witness and Mr. Gadbury. In that light, the COA held that trial counsel was deficient in several respects: (1) failure to obtain the complaining witness' medical records, failure to pursue a motion for independent psychological evaluation of the complaining witness, (3) failure to call a critical witness, and (4) failure to investigate and impeach one of Mr. Gadbury's ex-wives' credibility.  After finding multiple deficiencies, the COA held a new trial was required:
[t]he cumulative effect of trial counsels' demonstrated errors has resulted in prejudice to Gadbury's right to a fair trial. The evidence of Gadbury's guilt was not overwhelming. We are convinced that there is a reasonable probability that, but for the ineffective assistance of counsel Gadbury received, the trial result would have been different.
[Update: the state did not file a PR and the mandate issued on July 23, 2015.]

DNA testing available if in custody when petition filed

Paul M. Dent won in State v. Cheeks, No. 111,279 (Kan. June 19, 2015), obtaining an order for further proceedings under K.S.A. 21-2512, related to DNA testing. The only question was whether Mr. Cheeks was "in custody" for purposes of the statute. He had been in prison when he filed his petition pursuant to K.S.A. 21-2512, but had been released on parole during the proceedings. The KSC held that if a person is in prison when he or she files such a petition, he has met the "in custody" requirement of the statute:
The statute does not require that an individual be in state custody when a petition is heard. Rather, the statute makes the custody status of the convicted person of interest only at the time the petition is filed: A "person in state custody . . . may petition the court that entered the judgment for forensic DNA testing." (Emphasis added.) K.S.A. 21-2512. The legislature's use of the present tense in that sentence tells all.

Because there is no dispute that Cheeks remained in prison at the time his K.S.A. 21-2512 petition for DNA testing was filed, he was "in state custody" at the relevant time. This case must be remanded again to the district court so that the merits of the petition may be considered.

Sunday, July 05, 2015

Prosecutor must do more than refer to agreement to uphold plea bargain

Peter Maharry and Theresa Barr won in State v. Jones, No. 104,516 (Kan. June 12, 2015), obtaining a resentencing order in a Sedgwick County aggravated robbery prosecution. In particular, Ms. Jones argued that the state had failed to join in a recommendation for a downward dispositional departure, as promised in the plea agreement. A majority of the KSC agreed:
Since the plea agreement was referenced at the hearing, one could give the sentencing judge the benefit of the doubt that he would have inquired further if he did not know the agreement's terms.  But the Hill court relied on more than the sentencing court's statements demonstrating awareness of the agreement's terms, which is important because the State has the contractual duty here—not the court.

The prosecutor's conduct in Jones' case more closely resembles what we would expect of a prosecutor who agreed to stand silent as part of a plea agreement. And while the State's burden set by Hill is not high, the failure to openly express the State's agreed-to recommendation or direct the sentencing judge to the plea agreement's specific provisions that the State was bound to and ensure it was in the court's possession is the tipping point.

The prosecutor had an affirmative duty arising from the plea agreement to recommend a particular sentence, which is what Jones bargained for when she agreed to plead guilty as charged. And the only consideration she received in exchange for the plea was the State's promise to join in her efforts to be sentenced to probation rather than imprisonment.
Because the state failed to uphold its part of the agreement, the KSC remanded for resentencing.

Statute requiring attorneys to file joint motions violates separation of powers

In 2014, the Kansas Legislature passed K.S.A. 20-3301(c), a statute that imposes deadlines for all state court decisions, including appellate decisions.  As part of that statute, the statute directs "all counsel after those deadlines have fun to submit a joint request to the Supreme Court that a decision be entered 'without further delay.'"

In State v. Buser, No. 105,982, on September 11, 2014, Meryl Carver-Allmond argued a case at the KSC involving challenges to retroactive application of 2011 amendments to the Kansas Offender Registration Act.  As of March 2015, the KSC had not issued a decision, reaching the time limits of the 2014 statute.  On March 26, 2015, Ms. Carver-Allmond filed a motion asking the KSC to find the mandatory application of the 2014 statute an unconstitutional violation of the separation of powers. The state did not respond.

On July 1, 2015, the KSC granted Ms. Carver-Allmond's motion and issued an order (here) holding that K.S.A. 20-3301(c) is unconstitutional.  In its sixteen-page order, the KSC reviewed the separation of powers doctrine in detail and agreed that attorneys are officers of the court and that legislative interference with an attorney's ethical duties:
Directing attorneys to ultimately compel the Supreme Court to release its decision by a date calculated by the legislature's formula is an inordinate degree of legislative control over the judicial power.
The KSC agreed that expediting appeals is a valid objective, but that the statute in this case exceeded the legislative power:
while this apparent legislative objective [expediting appeals] is worthwhile, requiring attorneys to compel the court to release its decision within 30 days . . . in furtherance of that objective violates the separation of powers doctrine. The legislature cannot enforce an obligation of the judiciary that it owes solely to the people.
So, as a result, the KSC held that the statute violated the separation of powers doctrine that is part of the Kansas Constitution:
In summary, through K.S.A. Supp. 20-3301(c)(2), the legislature directs attorneys to seek exprdited judicial findings by filing a joint request that seeks one of two unconstitutional remedies under subsection (c)(3).  En route to that conclusion we necessarily have decided the legislature's mandatory court-deadline in subsection (c)(1) is also unconstitutional.  Subsections (c)(1), (2), and (3) violate the separation of powers doctrine. . .
Without these subsections, the remainder of subsection (c) is meaningless.  Accordingly, we grant Carver-Allmond's motion and relieve her of any purported duty to comply with subsection (c)(2).
This is a helpful decision for several of us who practice in the KSC and who have pending cases. 

Here is a blog post in the Topeka Capital-Journal reporting on the order and some reaction to it.

[Update: on July 14, 2015, the Attorney General filed a motion to withdraw the July 1, 2015 order.]

[Further update: on September 25, 2015, the KSC denied the state's motion to withdraw. Here is the KSC order.]

Saturday, June 27, 2015

Lifetime postrelease for juvenile offenders violates Eighth Amendment

Joanna Labastida won in State v. Dull, No. 106,437 (Kan. June 5, 2015), obtaining a holding that mandatory lifetime postrelease supervision is categorically unconstitutional when imposed on a juvenile who was convicted of aggravated indecent liberties with a child. 

The KSC applied Graham v. Florida, 560 U.S. 48 (2010)(holding that juvenile offenders could not be sentenced to life without parole for non-homicide offenses) and held that, as applied in the Kansas sentencing scheme, lifetime postrelease supervision could not stand:
Under Graham, Dull has not demonstrated a national consensus for or against mandatory lifetime postrelease supervision for juveniles. Juveniles, especially those who commit a nonhomicide offense, are clearly viewed with a diminished moral culpability compared to adults. Mandatory lifetime postrelease supervision for a juvenile is a severe lifetime sentence, even when the potential for further imprisonment is not considered, because the juvenile's liberty interests are severely restricted for life by the terms of the mandatory lifetime postrelease supervision. While we have found mandatory lifetime postrelease supervision constitutional for adults, the same factors that result in a diminished culpability for juveniles, i.e., recklessness, immaturity, irresponsibility, impetuousness, and ill-considered decision making, along with their lower risks of recidivism, all diminish the penological goals of lifetime supervision for juvenile sex offenders. 

Accordingly, we reverse the Court of Appeals and conclude that mandatory lifetime postrelease supervision is categorically unconstitutional under Graham when imposed on a juvenile who committed and was later convicted of aggravated indecent liberties with a child.
As a result, the KSC vacated the postrelease supervision portion of Mr. Dull's sentence.

[Update: on July 2, 2015, the state filed a notice of intent to file a petition for a writ of certioriari with the SCOTUS.  As a result, issuance of the appellate mandate has been stayed.]

[Update: on September 1, 2015, the state filed its petition for a writ of certiorari.]

Saturday, June 20, 2015

Improper lesser-included offense instruction and verdict form

Adam D. Stolte won in State v. Allen, No. 111,021 (Kan. App. May 29, 2015)(unpublished), obtaining a new trial in a Sedgwick County battery of a LEO prosecution. Mr. Allen argued on appeal that the district court improperly set out a lesser-included offense instruction by allowing the jury to choose a type of battery in the verdict form. The COA agreed that the instruction was improper:
The problem in this case was compounded in several respects. First, the jurors were not given PIK Crim. 4th 68.080 that identifies the principal offense, here aggravated battery of a law enforcement officer, and then states each of the lesser included offenses. The PIK instruction also informs the jurors if they have a reasonable doubt as to which of two offenses a defendant is guilty, they should “convict[ ] of the lesser offense only.” PIK Crim. 4th 68.080. In Parker, the court emphasized the importance of that consideration in how jurors properly should consider lesser included offenses. At the point the jurors actively considered the lesser offenses against Allen, the omission of that guidance compromised the deliberations.

Consistent with those directives, the district court should have identified each of the lesser offenses and provided a separate elements instruction for each with appropriate transitional language comparable to the opening paragraph of the instruction it did give.

Second, in combination with the undifferentiated instruction on lesser offenses, the verdict form amounted to an impermissible special interrogatory regarding those offenses. The verdict form effectively asked the jury to indicate whether it found the facts to be that Allen recklessly caused bodily injury to Reichengerger or whether it found she intentionally caused physical contact with him in a rude, insolent, or angry manner. Based on that indication on the verdict form, the district court then entered judgment against Allen for the particular lesser offense. The jurors did not functionally render a general verdict of guilty with respect to that offense. Indeed, as we have explained, the jurors were never even informed there were two lesser offenses to the charged crime.
The COA went on to apply a clearly erroneous reversal standard and held that Mr. Allen had met that standard. As a result, the COA reversed and remanded for a new trial.

[Update: the state did not file a PR and the mandate issued on July 2, 2015.]

Sunday, June 14, 2015

Incomplete DC-70 advice requires new DUI trial

Jay Norton won in City of Overland Park v. Lull, No. 111,741 (Kan. App. March 13, 2015)(published by order of Kansas Supreme Court, June 9, 2015), obtaining a new trial in a Overland Park DUI prosecution. The primary question was whether the officer had substantially complied with the notice provisions of K.S.A. 8-1001(k). The COA found that the officer did not:
Here, it is undisputed that Officer Morse read the DC-70 form word for word with the exception of omitting paragraph 7. Thus, unlike Schilling or Menke, we clearly have an omission while reading the DC-70 form, not a misstatement. When dealing with an omission, this court has found no error when the omitted paragraph did not apply to the driver in any way. However, paragraph 7 clearly applied to Lull—Officer Morse in fact testified that Lull had told her it was his second DUI.
The district court's finding that notice to Lull did not have to include the actual duration of the applicable driving license suspension or civil penalty for failing an evidentiary test is erroneous and does not comply with the mandatory statutory requirements that certain notices be given. The purpose of the implied consent law is to coerce submission to chemical testing in part by the threat of statutory penalties of license suspension. To accomplish this, the legislature sought to convey to a driver the distinction between the specific penalties for refusing to take an evidentiary test and those penalties for having no prior occurrence or a second or subsequent occurrence.
The district court, in its ruling, and the City on appeal suggest that we should look at whether a driver refuses or elects to take the evidentiary test first and then determine if he or she had proper notice. However, K.S.A. 2012 Supp. 8-1001(k) clearly and unambiguously provides that all the required notices be given before asking the driver to submit to a breath test. By omitting paragraph 7, Officer Morse did not inform Lull that the statutory penalty for him as a repeat DUI offender was more severe for him than those described in paragraph 6, i.e., automatic suspension of driving license for 1 year instead of an automatic suspension of either 30 days or 1 year depending on his blood alcohol level. Thus, Lull did not receive the information necessary for him to make an informed decision as to whether to take the test or not.
The COA held that the district court should have suppressed Mr. Lull's refusal and that the error was not harmless. As a result, the COA remanded for a new trial.

[Update: the state did not file a PR and the mandate issued April 16, 2015.]

[Further update: the KSC granted a motion to publish on May 26, 2015 and the case was published on June 9, 2015.]

Saturday, June 13, 2015

Proof of nature of prior burglary convictions violates Apprendi

Samuel Schirer won in State v. Dickey, No. 110,245 (Kan. May 22, 2015), obtaining a new sentencing hearing in a Saline County theft prosecution. The main issue had to do with classification of burglary convictions from before the Kansas Sentencing Guidelines. Before 1993, there was no such thing as "residential" or "nonresidential" burglary.  So how do you classify those burglaries as person or nonperson? The Kansas statute says the judge should consider evidence and make a determination. But that sounds like judicial factfinding that increases a penalty, which is prohibited by Apprendi.  The ADO had been raising that issue for a while, but the issue was rejuvenated when the SCOTUS decided Descamps v. United States in 2013 (blogged about here).

The COA had held that judicial factfinding that increases a penalty violated Apprendi and Descamps. The KSC agreed:
Though the burglary statute forming the basis for Dickey's prior juvenile adjudication was comprised of multiple, alternative versions of the crime, none included an element requiring that the structure burglarized be a dwelling, i.e., "used or intended for use as a human habitation, home or residence." K.S.A. 2014 Supp. 21-5111(k). Consequently, employing either a categorical approach or a modified categorical approach to determine whether Dickey's prior burglary adjudication involved a dwelling would be constitutionally prohibited under Descamps and Apprendi.
Dickey is also important from a procedural standpoint, holding that the error resulted in an illegal sentence, meaning that it could be raised for the first time on appeal and was not waived by failure to contest the presentence investigation.

[Update: the state filed a motion for rehearing on June 10, 2015.]

[Further update: the KSC denied the state's motion for rehearing and the mandate issued on July 2, 2015.]

Saturday, June 06, 2015

"I'm going to take my rights" is an invocation of Miranda rights

Debra Wilson won in State v. Aguirre, No. 106,570 (Kan. May 15, 2015), obtaining a new trial in a Riley County capital murder prosecution.  The primary issue in the case involved admission of statements obtained from interrogation of Mr. Aguirre.  The KSC described the environment of a first interrogation:
the interrogation began under the guise that the officers were simply trying to locate Tanya. But the questioning intensified as the detectives began refuting Aguirre's answers, becoming especially aggressive after the detectives confronted Aguirre with their knowledge that Tanya was dead. The interrogators told Aguirre that they knew he was lying about having no knowledge of Tanya's death and that lying would make him look worse than if he told the truth. They fed Aguirre the suggestion that Tanya's death might have been accidental, that Aguirre was probably bothered by the knowledge of what happened, and that it was time for Aguirre "to let it off [his] shoulders." They also used the tack of urging Aguirre to tell what happened so Tanya's family could find some peace.
The KSC then quoted extensively from the interrogation and concluded that Mr. Aguirre's statement that "[t]his is—I guess where I, I'm going to take my rights," could not be reasonably understood to be anything other than an invocation of his Miranda rights.  The KSC held that continuing interrogation after invocation of Miranda required suppression.

The KSC also held that the Miranda violation tainted statements obtained in a second interrogation and required their suppression as well.

Finally, the KSC held that the state failed to prove the erroneous admission was harmless and, therefore reversed.

[Update: the state filed a motion for rehearing on June 4, 2015.]

[Further update: the KSC denied the motion for rehearing and the mandate issued on July 6, 2015.]

[Further update: on July 8, 2015, the state filed a motion to withdraw the mandate upon its notice of intent to file a petition for a writ of certiorari.]

[Further update: on July 20, 2015, the KSC withdrew its mandate pending the state's filing of a petition for a writ of certiorari.]

[Further update: on January 19, 2016, the SCOTUS denied the state's petition for a writ of certiorari.]

Saturday, May 23, 2015

Cell phone search incident to arrest violates Fourth Amendment

Washburn intern ReAnne Wentz and I won in State v. James, No. 106,083 (Kan. May 8, 2015), obtaining a suppression order in a Franklin County possession with intent to sell prosecution. An officer had arrested Mr. James after a traffic stop and went through text messages on his cell phone incident to that arrest, discovering some potentially incriminating text messages. The KSC held that a 2014 SCOTUS case, Riley v. California was controlling:
Riley decided two consolidated cases—one involving a smart phone and the other a less technologically sophisticated "flip" phone—both involving a warrantless search of a cell phone following arrest. The Riley Court declined to extend the Robinson rationale to the world of digital information, stating that "while Robinson's categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones." Riley held that the risks to officer safety and of evidence destruction are significantly lessened in the context of "digital data" and that the privacy interests at stake are significantly heightened because digital data storage devices such as cell phones "place vast quantities of personal information literally in the hands of individuals." Because a search for digital data on a cell phone "bears little resemblance to the type of brief physical search considered in Robinson," the Court declined "to extend Robinson to searches of data on cell phones" and instead ruled that "officers must generally secure a warrant before conducting such a search." Riley was decided while this case was pending on appeal. As such, Riley controls the constitutional issue in this case.
The KSC rejected the state's alternative argument that Mr. James had consented to the cell phone search and, as a result, reversed and remanded with directions to suppress the cell phone text messages.

"I ain't talking no more" is unambiguous invocation of right to remain silent

Benjamin J. Fisher won in State v. Brisco, No. 112,644 (Kan. App. May 1, 2015)(unpublished), affirming Judge Chambers' suppression of several incriminating statements in a Reno County murder prosecution. The following facts were set out in the COA opinion:
The next day, Brisco was interviewed by law enforcement the first time. He denied any involvement in the murder. The following day, Brisco was arrested and interviewed a second time. The detective read Brisco his Miranda rights, and he agreed to speak with the detective. Brisco began to talk to the detective about his version of the events from the night of the murder. At one point during the interview, Brisco indicated he did not want to talk to the detective during the interview but then continued to talk anyway. However, 4 hours into the interview at approximately 11:25 p.m. Brisco placed his hat on his head, folded his arms over his chest, and stayed silent for several seconds. The detective reinitiated questioning. He asked about the gun used, but Brisco remained silent until he stated, “I ain't talking no more.” The silence continued until the detective asked Brisco further questions to which Brisco gave responses.
The COA agreed with Judge Chambers that the statements were obtained in violation of the right to remain silent:
While Brisco's first invocation of his right to remain silent was ambiguous because he continued speaking to the detective of his own accord, Brisco's second invocation of his right to remain silent was not ambiguous or equivocal. During the interview, Brisco placed his hat on his head, folded his arms over his chest, and stayed silent for several seconds. The detective then asked about the gun used, but Brisco remained silent until he stated, “I ain't talking no more.” The silence continued until the detective asked Brisco further questions to which Brisco gave responses. Moreover, the detective never asked any clarifying questions pertaining to Brisco's invocation of his right to remain silent. Not only did Brisco's body language suggest that he was no longer willing to talk, but he specifically stated that he was no longer willing to talk to the detective. Unlike Brisco's first attempt to invoke his right to remain silent, he did not reinitiate the conversation; the detective did. The state concedes that it was the detective that reinitiated the conversation. Thus, the district court did not err when it determined that Brisco's statements made after he unambiguously invoked his right to remain silent should be suppressed.
[Update: the state filed a PR on May 28, 2015.]

[Further update: the KSC denied the state's PR and the mandate issued on July 31, 2015.]

Saturday, May 16, 2015

Absconding is more than just not reporting

Patrick H. Dunn won in State v. Huckey, No. 112,273 (Kan. App. April 24, 2015), obtaining a remand order in a Ellsworth County probation violation case. In particular, the COA expounded on the definition of "absconder" for purposes of an intermediate sanction statutes. The panel looked to other cases defining "absconder" for purposes of the fugitive disentitlement doctrine and concluded that "absconder" means something more than failure to report on probation:
The Campbell court ruled that the district court's finding that Campbell was a fugitive based upon a mere allegation in the State's motion was insufficient. The panel ruled that the district court erred on this point, but it ultimately affirmed based upon the legal insufficiency of Campbell's motion to modify sentence.

We find the reasoning of the Campbell panel sound. In this case, the only mention of Huckey being an absconder from supervision was by the State when counsel argued that caselaw suggested that if you failed to report for 2 months you are an absconder; if it is less than 2 months, you are not an absconder. We have found no reported cases that rule this way. 

On appeal, the State has abandoned that argument. Instead, the State contends that because the statute fails to define absconder, then it is left to the absolute discretion of the sentencing court to decide if a probationer is an absconder. In other words, if a probationer fails to report one time, the court, acting within its discretion, could validly rule such a probationer is an absconder, making the intermediate sanctions inapplicable when probation is revoked.

Such an interpretation of the statute runs counter to the elaborate set of intermediate sanctions created by the statute that must be imposed in cases of probation revocation before ordering the original sentence to be served. Why bother to create all of those sanctions if the legislature simply allowed the sentencing court to bypass all of the sanctions with a simple finding that this probationer is an absconder? The reasoning in Campbell is compelling. Absconding is more than just not reporting.
Because the state had not shown any evidence of absconding, the COA remanded for further proceedings.

[Update: the state filed a PR on May 22, 2015.]

[Further update: the KSC denied the state's PR and the mandate issued on August 12, 2015.]

Saturday, May 02, 2015

Benign intent does not equal good faith

Sam S. Kepfield won in State v. Cox, No. 112,387 (Kan. App. April 10, 2015), affirming Judge Chambers' suppression order in a Reno County drug prosecution. On appeal, the state argued that Judge Chambers had improperly held that Ms. Cox had standing to challenge the search of her bag. The COA agreed with Judge Chambers:
Under these standards, Cox clearly has standing to challenge the search of the Buckle shopping bag. Cox and Simmons both confirmed that Cox knowingly left her bags in Simmons' car. Simmons positively identified which shopping bag belonged to Cox, and [the trooper] removed and searched only that bag. Even if, as the State argues, [the trooper] did not know for certain that the Buckle bag belonged to Cox before searching it, "the 'state of mind of the searcher regarding the possession or ownership of the item searched is irrelevant to the issue of standing.'" Cox clearly maintained a legitimate expectation of privacy in the bag she readily identified as her own. Thus, Cox had standing to contest the search of the bag.
The COA also rejected the state's argument that Ms. Cox had impliedly consented to search of her bag in these circumstances:
The State's argument that Cox implicitly consented to the search based on the circumstances fails for at least two reasons. First, Simmons specifically identified the Buckle bag that belonged to Cox. Thus, there was no need for [the trooper] to open the bag to look for the wood sander in order to verify ownership of the bag. Second, [the trooper] had the opportunity to ask Cox for her consent to search the bag when he spoke with her on the telephone, but he failed to do so. Under these circumstances, any consent implied by the situation is simply insufficient to substitute for the required express consent.

In summary, the record lacks any indication that Cox's consent to the search of her bag was "'unequivocal, specific, and freely given.'" Because it cannot fairly be said that Cox consented to the search of her Buckle bag, the district court did not err in suppressing the evidence found in the bag.
Finally, the COA rejected the state's claim that the good-faith exception should prevent suppression in this case (1) because it was not raised below and (2) because the trooper was not relying on a search warrant or a statute:
This is not a case where [the trooper] was relying in good faith on a search warrant later found to be invalid or on a statute later declared unconstitutional. Although [the trooper's] motivation for opening Cox's Buckle bag may have been benign, the fact remains that he violated Cox's constitutional rights by searching her bag without a warrant and without her consent. This case presents a situation where the exclusionary rule should be applied in order to deter [the trooper] and other law enforcement officers from making the same type of mistake in the future. Thus, the district court correctly applied the exclusionary rule to suppress the evidence found in the Buckle bag.
[Update: Ms. Cox filed a motion to publish this previously unpublished case, which was granted on July 8, 2015.]

[Further update: the state did not file a PR in this case and the mandate issued on October 29, 2015.]