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 Oct. 9, 2015)(unpublished), obtaining a new trial in a Ford County aggravated battery prosecution.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.]