Saturday, October 08, 2016

Advising a person regarding a plea bargain is not the same as illegally dissuading a witness

Randall Hodgkinson won in State v. Wilkins, No. 109,313 (Kan. Sept. 9, 2016), reversing a Shawnee County conviction for aggravated intimidation of a witness. The state presented evidence that Ms. Wilkins spoke to a person of interest in a murder investigation and discouraged the person from entering into a cooperative agreement with law enforcement officers. The state argued to the jury and the KSC that Ms. Wilkins was "attempting to dissuade a witness from attending or giving testimony at any proceeding or inquiry authorized by law . .  "with intent to thwart or interfere in any manner with the orderly administration of justice." The KSC rejected that argument:

We acknowledge that some cases have held sufficient evidence existed that a defendant dissuaded a witness from testifying even though the word "testify" was never used. 

But the crucial difference from the cases cited above is the "witness" in this case, F.W., was a codefendant in the homicide proceedings. As such, F.W. was cloaked under the protection of the Fifth Amendment to the United States Constitution, which provides that "[n]o person . . . shall be compelled in any Criminal Case to be a witness against himself." This same right is included in both our Kansas Constitution Bill of Rights and in K.S.A. 60-423(a). See Kan. Const. Bill of Rights, § 10 ("No person shall be a witness against himself."); K.S.A. 60-423(a)  At the time Wilkins was attempting to dissuade F.W. from taking the plea bargain in this case, no evidence was presented that F.W. had waived her right against self-incrimination.

We recognize that F.W. may fit the broad definition of a witness under K.S.A. 2011 Supp. 21-5908(c)(1).  But an elemental part of the aggravated intimidation of a witness statute, K.S.A. 2011 Supp. 21-5909(a)(1), requires the witness to "giv[e] testimony," and F.W. could not do so in the homicide proceeding at the time the State argues Wilkins was dissuading her from testifying. 

As in these hearsay cases, F.W. was still protected by her Fifth Amendment privilege when Wilkins urged her not to take the plea, and, of course, the prosecutor had no control over F.W.'s decision to accept or reject the plea offer. Stated another way, accepting a plea offer and waiving her privilege were separate and distinct conditions that needed to be satisfied before F.W. would become eligible or could be compelled to testify in the proceedings. Thus, Wilkins' action in dissuading F.W. from taking a plea bargain was not, as the State argues, synonymous with dissuading F.W. from "giving testimony" at trial. As F.W.'s status as a codefendant with a constitutional privilege against self-incrimination was a bar to her "giving testimony" under K.S.A. 2011 Supp. 21- 5909(a)(1), the facts of this case simply do not fall under the purview of the statute. With the privilege intact, Wilkins was unable to dissuade F.W., a codefendant, from "giving testimony," a required element.

Because the KSC found the record lacking on the essential element, it reversed the conviction for aggravated intimidation of a witness.

The KSC did recognize but avoided another possible issue with this statute:

We resolve this case under the first prong of her argument, albeit on somewhat different grounds than those identified by the majority and dissenting opinions. In so holding, we need not reach Wilkins' additional arguments that the phrase "thwart or interfere in any manner with the orderly administration of justice" in K.S.A. 2011 Supp. 21-5909(a) is unconstitutionally vague and the Court of Appeals decision rejecting this argument. Indeed, based on the language of the statute, its legislative history, and Wilkins' argument addressing possible applications of the phrase, we recognize that a valid question arises whether the legislature intended to require bad faith in thwarting or interfering with the orderly administration of justice in order for conduct to fall within the purview of the statute. But, we leave this determination for a future case in light of our decision and analysis below. 

Saturday, October 01, 2016

No weighing of aggravating factors in Jessica's Law sentencing

Christina M. Kerls won in State v. McCormick, No. 109,985 (Kan. Sept. 9, 2016), obtaining a new sentencing hearing in a Sumner County rape prosecution. The KSC affirmed Mr. McCormick's convictions, but remanded for resentencing because the district court improperly considered aggravating factors when determining whether to grant a departure in the case. The KSC applied a recent case (blogged about here) and held that the district court applied the wrong standard:
The manner in which a crime is committed and the circumstances inherent in the crime are not inevitably limited to the strict legal elements of the offense. But where, as here, the district judge explicitly referred to the piece of evidence that persuaded him as an "aggravating factor," we cannot be wholly confident that the statutory command not to conduct weighing of aggravators and mitigators was followed. As we said in Jolly, the sentencing judge may consider the manner in which a crime is committed and the circumstances inherent in the crime, as well as whether mitigators that are substantial and compelling justify a departure from Jessica's Law. But the judge may not weigh aggravators and mitigators. That is exactly what the judge himself said he was doing in this case.
As a result, the case was remanded for resentencing using the correct standard.