Sunday, January 17, 2016

February-March 2016 KSC docket

Here are the criminal cases on the KSC docket for February 29-March 3, 2016. 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.

February 29--Monday--a.m.

State v. Keith Ritz, No. 112,069 (Sedgwick)
Direct appeal; felony murder
Heather R. Cessna
  • Failure to sever charges
  • Failure to give lesser-included offense instructions
State v. Javier Rizo, No. 112,824 (Sedgwick)
Direct appeal; felony murder
Sarah Ellen Johnson
[Affd/Dsmd; Johnson; August 12, 2016]
  • Improper jury trial waiver
  • Failure to grant downward durational departure
State v. Amoneo Lee, No. 113,562 (Sedgwick)
State appeal
Richard Ney
[Reversed; Rosen; April 29, 2016]
  • Whether district court properly granted motion to correct illegal sentence under Alleyne
State v. Jerry Thach, No. 112,231 (Sedgwick)
Direct appeal; felony murder
Michael P. Whalen
[Affirmed; Luckert; September 9, 2016]
  • Insufficient evidence of underlying felony

March 1--Tuesday--a.m.

State v. Jordan Mullen, No. 110,468 (Johnson)
Direct appeal (petition for review); possession with intent
Joanna Labastida
[Affirmed; Rosen; April 22, 2016]
  • Failure to grant motion to suppress
  • Deficient search warrant affidavit
  • Failure to properly advise of right to jury trial
State v. Ralph Corey, No. 110,149 (Franklin)
Direct appeal (petition for review); aggravated kidnapping
Lydia Krebs (brief); Peter Maharry (petition for review & argue)
[Affirmed; Biles; July 1, 2016]
  • Jury misconduct (juror comment during deliberations)
  • Denial of right to be present during readback
  • Improper jury instruction
  • Improper prosecutorial argument

March 3--Thursday--a.m.

State v. William Shank, No. 112,982 (Thomas)
Sentencing appeal
Peter Maharry
[Affirmed; Nuss; April 15, 2016]
  • Improper consecutive sentences
  • Unworkable restitution order
State v. Christian McCormick, No. 109,985 (Sumner)
Direct appeal (petition for review); rape
Christina M. Kerls
[Affd/Rvd; Beier; September 9, 2016]
  • Improper admission of evidence of another bad act
  • Improper sentence to more than minimum
  • Failure to grant downward departure
State v. Elton Sherman, No. 113,105 (Crawford)
Direct appeal; felony murder
Meryl B. Carver-Allmond
[Affirmed; Stegall; September 9, 2016]
  • Improper prosecutorial argument (defining reasonable doubt)
  • Failure to grant mistrial
  • Speedy trial (due process) violation

Saturday, January 09, 2016

Search incident to arrest nor inevitable discovery justified search of wallet left on car

Shannon Crane won in State v. Reed, No. 113,576 (Kan. App. Dec. 18, 2015), affirming Judge Rose's suppression order in a Reno County drug prosecution. Judge Rose found the following facts:
Defendant was handcuffed and at the rear of his vehicle when his wallet was first searched. The search of the wallet was not justified by safety reasons or as an effort to safeguard evidence of the offense of driving while suspended. The officers were in possession of defendant's driver's license, the only evidence relevant to the crime for which defendant was being arrested. There was nothing protruding from the wallet suggesting any type of safety concern. Officer Carey testified it is police department policy to search a person's effects before placing them in a patrol car. The court assumes this policy is for safety reasons. Here though, defendant was separated from his wallet. Defendant apparently was not asked what he would like done with his wallet, if anything. If officers were concerned about security of defendant's property there was a passenger who arguably could have assumed custody of the wallet. There was no indication the passenger was a minor child or under the influence of drugs or otherwise incapacitated.

The search was not authorized as incident to arrest. The inevitable discovery doctrine does not authorize the admission of the evidence because the wallet was not lawfully seized.
The COA agreed that the search incident arrest doctrine did not apply:
If Reed's wallet had been in his pocket or even in his hand when he was arrested, the search in this case clearly would have been constitutional as a search incident to arrest. But here, Reed placed his wallet on the roof of his car prior to his arrest. Before officers searched Reed's wallet, Lahaan arrested Reed, placed him in the back of the patrol car, and continued to complete the investigation and interview other people at the scene, including Reed's passenger. By the time Carey searched Reed's wallet, there was no possibility that Reed could access the wallet. Therefore, under Gant, the justifications of the search incident to arrest exception were absent and the exception did not apply. The State's undeveloped argument that Gant is inapplicable because it concerned an automobile is unpersuasive in light of the language quoted above from Gant.
The COA also agreed that adopting the state's argument would constitute a huge expansion of the inevitable discovery rule:
The State argues that it would have been unreasonable to expect officers to leave the wallet on the roof of the car. The State further asserts that "[i]f an item is personal in nature, plainly connected to the suspect, and left out in the open, law enforcement should be able to lawfully collect the item. Once the items are lawfully with law enforcement, they may be searched. [Citation omitted.]" If the court accepts the State's assertion, it is essentially saying that officers may search any item an arrestee is "plainly connected to" and which is "left out in the open" without further requirement from the Fourth Amendment. This would run afoul to the Fourth Amendment's premise that warrantless seizures are impermissible without an established exception to the warrant requirement.
Finally, the COA rejected the application of the good-faith rule:
The State contends that the officers acted "with an objectively reasonable good-faith belief that their conduct was lawful." But even if Carey's motivation for searching Reed's wallet may have been benign, the fact remains that he violated Reed's constitutional rights by searching his wallet without a warrant and without an applicable exception to the warrant requirement. This case presents a situation where the exclusionary rule should be applied in order to deter Carey and other law enforcement officers from making the same type of mistake in the future. Thus, the district court correctly applied the exclusionary rule to suppress the evidence found in Reed's wallet.
[Update: the state did not file a PR and the mandate issued on January 26, 2016.]
 

Aiding and abetting instruction given during jury deliberations is clear error

Rick Kittel won in State v. Hover, No. 113,214 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a new trial in a Reno County aggravated battery prosecution.  Ms. Hover argued that the district court's improperly giving an aiding-and-abetting instruction in response to a jury question. During deliberations, the jury asked "If we determine that the defendant was guilty of battery, does she share responsibility for all the harm that was done[?]" Over defense objections, the district court gave a pattern instruction for aiding-and-abetting. The COA held that the instruction was legally inappropriate:
Hover's defense was that the State had failed to prove its case. Hover pointed out the variances in the witnesses' trial testimony and attempted to undermine the State's witnesses' credibility. Moreover, Hover argued that her hemophilia would have resulted in bruises on her hands had she been fighting, but she had no bruises. Hover offered the jury an alternative explanation of the fight: that Kelsie and Renae were the ones who hit Spencer and Hover was trying to break up the fight.

We find that the aiding and abetting instruction was not legally appropriate for the simple reason that neither party asserted an aiding and abetting theory during the trial. Moreover, Hover argues that the instruction was legally inappropriate because giving it violated her constitutional right to present a defense—she was unable to present a defense to or argue against the theory that she was guilty as an aider and abettor since that theory was not introduced until after the close of evidence and argument.
On reversibility, the COA held that the error was clear:
This case essentially boiled down to a credibility contest between witnesses supporting the State's theory—that Hover battered Spencer—and witnesses supporting the defense theory—that Hover was present but did not touch Spencer. By erroneously introducing a new theory of culpability during deliberation, without supplemental argument or presentation of evidence, the district court fundamentally changed the grounds on which the jury could convict Hover. We cannot be sure that the erroneous instruction on aiding and abetting caused the jury's verdict, but there is a real possibility that it did so. Stated differently, after carefully reviewing the entire record, we are firmly convinced there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. Thus, we conclude the supplemental jury instruction on aiding and abetting was clearly erroneous.
As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]

Cannot detain while getting a search warrant without more

Kimberly Streit Vogelsberg won in State v. Daugherty, No. 110,131 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a suppression order in a Butler County drug prosecution. Ms Daugherty argued that officers obtained statements from her during an illegal detention and that the tainted evidence invalidated a search warrant predicated on those statements, which in turn led to incriminating evidence.  The state relied on cases that stood for the proposition that a person can be detained during execution of a search warrant. But the COA held that Ms. Daugherty's case was easily distinguishable:
In Daugherty's case, of course, officers did not have a search warrant when they detained her. Given the cases' strong emphasis on the search warrant to justify a seizure, Summers and Mena do not control the result here.
The COA went on, then, to consider whether a person can be detained while officers get a search warrant.  Ultimately, the COA followed a Fourth Circuit case that held a seizure unreasonable where there was not warrant, no probable cause--or even reasonable suspicion--of criminal activity, and no reasonable suspicion of destruction or concealment of evidence. As a result, the COA held that Ms. Daugherty's detention was similarly unreasonable:
police in our case did not have probable cause to believe that Daugherty had done or would do anything wrong. Nor could Daugherty have destroyed evidence that was in the room; officers were preventing anyone from entering. No officers suggested that Daugherty represented a threat to their safety; the officers didn't handcuff or restrain her while they kept her in the motel lobby. She was seized without being given an option to leave, and the officers did not have a search warrant (or the imminent prospect of one) at the time. We conclude that her seizure in these circumstances violated her right to be free from unreasonable seizure under the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights.
The COA also rejected the state's argument that the reading of Miranda rights during the illegal detention reduced the effect of the illegal seizure. The COA held that, while giving of Miranda rights may be relevant, it did not overcome the fact that the statements were made during the illegal detention and immediately used to get a search warrant.

Finally, the COA held that the state's speculative theory regarding inevitable discovery was not sufficiently litigated at the district court and therefore remanded for further findings.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]

Saturday, January 02, 2016

Insufficient search warrant affidavit leads to suppression of residential search

Washburn student intern Michelle David and I won in State v. Savage, No. 112,882 (Kan. App. Dec. 11, 2015)(unpublished), obtaining a suppression order in a Douglas County drug prosecution. Police had obtained a search warrant to search Mr. Savage's home based on a report from a neighbor, a trash pull, and an old conviction for drug possession. The COA held that there was insufficient evidence presented in the affidavit to support the warrant. The COA agreed with the district court that the remote conviction, by itself, was of little value in the probable cause calculus. Additionally, the non-specific report from the neighbor was not particularly probative. It also held that items found in the trash pull did not establish a sufficient contemporaneous connection to the home:
The affidavit at issue here clearly established a nexus between the garbage retrieved and the residence to be searched. The affidavit states that two trash bags were pulled from in front of Savage's home, on the same day, one yellow bag and one white bag. In the white bag were 14 pieces of mail along with two other documents addressed to Savage at the address to be searched, as well as mail addressed to two other individuals at the same address. Furthermore, an unknown quantity of marijuana mixed with coffee grounds and an opened package of Zig-Zag rolling papers were found. In addition, the trash pull was done the day before the warrant was requested, so the information was not stale. Nevertheless, we are compelled to find that the items recovered from the trash pull fail to establish a fair probability that further evidence of the crime of possession of marijuana would be found in Savage's home.

Even though the affiant requested a search warrant "to complete a more thorough investigation of possession of marijuana," a close examination of the evidence reveals that there is insufficient evidence to suggest a fair probability that marijuana would be found in Savage's house on July 2. The only evidence of criminal activity is that someone who was in the house possessed marijuana and unused rolling papers at some unknown time and subsequently discarded both. The amount of marijuana found is not delineated in the affidavit, but the fact that it was mixed with coffee grounds would suggest it was a small amount, consistent with individual use and not distribution. We do note that no partially burned or used rolling papers were found. We acknowledge that the possession of any amount of a controlled substance, even if it is not measurable or usable, is a crime in Kansas. However, the question is whether marijuana and unopened rolling papers found in a trash bag established probable cause to believe that contraband or evidence of a crime would be found in the residence. Neither party suggests that any criminal charges could be pursued merely for the marijuana found in the trash bag. It is unclear when the past use occurred, when the garbage was removed from the house or even when it was scheduled to be picked up. Even assuming weekly garbage collection, the contraband may well have been evidence of marijuana use several days prior to the examination of the garbage.
So, in totality, even giving appropriate deference to the magistrate, the COA held that the affidavit was lacking ("not even close"). Finally, the state had not argued the good-faith exception to the trial court and had not asserted any reasons for allowing that issue to be raised on appeal or the first time. As a result, the COA ordered that the evidence found during the search of Mr. Savage's home be suppressed.

[Update: the state did not file a PR and the mandate issued on January 25, 2016.]