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 May 29, 2015)(unpublished), obtaining a new trial in a Sedgwick County battery of a LEO prosecution.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.]