Saturday, February 28, 2015

April 2014 Special Docket (Hays)

Here are the criminal cases on the KSC docket for April 13, 2014 in Hays, Kansas.  This is a special setting of the KSC at Fort Hays State University and is the only time any of us remember an evening session of an appellate court. 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.

April 13--Monday--p.m.

State v. Heather Hilton, No. 102,256 (Ellis)
Probation revocation appeal (petition for review)
Matthew J. Edge (brief); Heather R. Cessna (argue)
[Dismissed; per curiam; May 22, 2015]
  1. Improper revocation of probation
City of Atwood v. Richard Pianalto, No. 109,796 (Rawlins)
Direct appeal (petition for review); DUI
Daniel C. Walter
[Affimed; Biles; May 22, 2015]
  1. Fourth Amendment violation

"Hot-box" jury selection requires new trial

Lydia Krebs and Peter Maharry won in State v. Crabb, No. 110,673 (Kan. App. Feb. 6, 2015), obtaining a new trial in a Shawnee County prosecution for interference with a law enforcement officer.  The main issue had to do with the jury selection. The district court used a method she described as follows:
I decided that this morning we are going to have jury selection by what has commonly been referred to as hot box. That means we are going to call 12 people into the jury box who will be examined by the Court and by counsel. All other people will remain in the gallery and be able to listen to court proceedings. At the time that 12 people have been passed for cause, then each party will have the opportunity to exercise a peremptory challenge and the State will go first, if you wish to exercise one or you may pass. Then the defendant will have the opportunity to exercise a peremptory challenge or may pass, until such time as both parties have either passed, leaving 12 people in the jury box, or each party has exercised six peremptory challenges, then we will have our jury.
On appeal, Mr. Crabb argued that this procedure violated K.S.A. 22-3411a, which provides that the district court shall cause enough jurors to be called, examined, and passed for cause before any peremptory challenges are required.  The COA agreed:
Based on Mitchell, it is clear that the district court erred by using the hot-box method of jury selection over Crabb's objection, as opposed to using the statutory method of jury selection. Both jury selection methods allow the parties to exercise all the peremptory challenges allowed by statute. See K.S.A. 2014 Supp. 22-3412. However, the statutory method of jury selection is superior to the hot-box method for at least two reasons. First, as the Mitchell court noted, the hot-box method requires counsel to exercise their peremptory challenges piecemeal rather than in comparison to the entire panel. How can a party properly exercise a peremptory challenge to strike a juror when the next juror seated by the court may be even worse, from that party's perspective, than the juror who was initially challenged? The statutory method of jury selection allows counsel to examine all prospective jurors before any peremptory challenges are required, thereby allowing counsel to compare all prospective jurors before deciding how the peremptory challenges should be exercised. 

Second, under the hot-box jury selection method, after the parties have exercised all peremptory challenges and the final juror is seated in the jury box, that final juror may only be removed for cause. There is no remaining peremptory challenge for the final juror seated by the court. Thus, unless a party is successful in striking the final juror for cause, the final juror will remain on the jury. And a party may not want to run the risk of offending the final juror by challenging that juror for cause, in case the trial judge should overrule the challenge.
The COA went on to find that the error was not harmless and therefore ordered a new trial.

[Update: the state did not file a PR and the mandate issued on March 12, 2015]

Saturday, February 21, 2015

HGN test does not supply reasonable suspicion of DUI

Michael P Whalen and E. Jay Greeno and Kristen Patty won in City of Wichita v. Molitor, No. 104,940 (Kan. Jan. 30, 2015), obtaining a suppression order in a Wichita DUI prosecution.  Mr. Molitor failed the horizontal gaze nystagmus test but passed other field tests. Based on the HGN, the officer requested a PBT, which resulted in conviction.  Mr. Molitor argued that the HGN results were insufficiently reliable under Frye to be admissible for any purpose. The KSC went even further and engaged the "overarching question of whether HGN testing is competent evidence that can be relied upon when determining the existence of reasonable suspicion."  Under Kansas statute, the officer had to have reasonable suspicion to request the PBT.

The KSC reviewed the HGN test in some detail, including research on the HGN test's efficacy, and concluded that the government was required to show a credible correlation between the HGN test and a blood alcohol level:
One must show that any proffered evidence that is ostensibly based upon scientific principles does, in fact, have some credible correlation to the matter that must be proved. For instance, consider the hypothetical scenario of an officer who testified that the officer had undergone extensive training in the operation of a Ouija Board; that when a Ouija Board is asked if the driver being tested is DUI, the Board's arrow will point at "yes or "no"; that random sampling has shown that the Ouija Board correctly identifies when a driver's intoxication exceeds the legal limit 60% of the time; and that the Board's arrow pointed at "yes" when asked if Molitor was DUI. Should a court allow the officer to base reasonable suspicion upon the Ouija Board test results? Of course not. And at this point in the state of Kansas, the HGN test has no more credibility than a Ouija Board or a Magic 8 Ball.
The KSC held that the city had failed to make this showing:
To be operating a vehicle under the influence of alcohol, pursuant to K.S.A. 2010 Supp. 8-1567(a)(1) or (2), the alcohol concentration in the person's blood or breath must have reached the level of .08 or more. If, as the above-referenced California study concluded, the HGN is essentially useless in predicting a person's blood alcohol level, then it is difficult to understand how that test can provide reasonable suspicion that a driver was driving under the influence of alcohol, as opposed to driving after two beers.
The KSC majority also disagreed with the COA's holding that, even without the HGN results, the officer had reasonable suspicion:
Granted, the officer here testified that Molitor ran into or onto the curb while stopping his vehicle. Obviously, evidence of unsafe driving can suggest intoxication. But that alleged lapse of coordination must be viewed in conjunction with what followed. After stopping the vehicle, Molitor spoke without slurring his words, produced his identifying documents without difficulty, exited and proceeded from his vehicle without losing his balance, and, most importantly, passed the two admissible [field tests]. In other words, under the totality of circumstances, one could not reasonably suspect that Molitor's balance was impaired by alcohol to the point of being legally under the influence of alcohol.
As a result, the Court reversed and remanded with directions to suppress.