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 Aug. 7, 2015)(unpublished), affirming Judge Rose's suppression of incriminating statements in a Reno County aggravated criminal sodomy prosecution.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.]