Friday, December 22, 2017

Prosecutorial comment requires new trial

Kimberly Streit Vogelsberg and Carol Longenecker Schmidt won in State v. McBride, No. 112,277 (Kan. December 1, 2017), obtaining a new trial in a Shawnee County kidnapping prosecution. After a mistrial, a jury convicted Mr. McBride of the lesser-included offense of kidnapping (original charge aggravated kidnapping). On appeal, Mr. McBride argued that the prosecutor erred by making comments during closing argument suggesting that the victim, who testified, deserved to have a presumption of credibility similar to the defendant's presumption of innocence. The COA held that this comment misstated the law, but found the error harmless.

The KSC first noted that the state did not cross-petition the COA's finding of prosecutorial error, so the only thing before it was the COA's determination that the error was harmless beyond a reasonable doubt. The KSC reviewed the facts of the case in detail and concluded the error was not harmless:

After careful review, although it is quantitatively obvious the State introduced more evidence at the second trial, none can be described as direct and overwhelming concerning the critical element for McBride's kidnapping charge: McBride's alleged use of force or threat when taking or confining C.C. in the house. In other words, at both trials C.C.'s uncorroborated testimony was the only evidence about this, so the jury's credibility determination about what she was saying was key—and that is what the prosecutor improperly tried to bolster by claiming C.C. deserved a credibility presumption akin to McBride's presumption of innocence.

We are also unpersuaded by the Court of Appeals' rationale that "there was no explanation for [C.C.'s] presence with McBride at the house other than, as [she] testified, she was forced into the residence." Having reviewed the record, it is equally plausible, for example, she remained there because she wanted or needed someone to give her a ride.

 As noted in [State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016)], "prejudice can exist even 'in a strong case.'" But this was not a strong case due to the lack of evidence corroborating C.C.'s testimony. And the prosecutor's "presumption" comment reasonably could have caused the jury to accept her testimony in the absence of anything else to support it. We are also unconvinced the jury would have understood the instructions, which emphasized the impact of the defendant's constitutional presumption of innocence, to preclude the evidentiary presumption for which the prosecutor advocated, i.e., "doesn't she deserve a certain presumption as well?" Finally, we note the jury in the first trial did not reach a unanimous verdict on any of the counts after hearing the same evidence as to force, threat, or deception, as the second jury. 

Because the state failed to meet its burden to show harmless error, the KSC reversed and remanded for a new trial.

Friday, December 08, 2017

January 2018 KSC Docket

Here are the criminal cases on the KSC docket for January 22-26, 2018. 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 and archived (here) if you would like to watch any of these arguments.

January 22--Monday--a.m.

State v. Shelbert Smith, No. 116,968 (Sedgwick)
Denial of late appeal
Richard Ney
[Reversed and remanded; Nuss; August 17, 2018]
  • Improper consideration of factors related to defendant's credibility
State v. Kasey Nesbitt, No. 116,550 (Sedgwick)
Direct appeal; First-degree felony murder
Kimberly Streit Vogelsberg
[Affirmed; Beier; June 1, 2018]
  • Death did not occur within res gestae of underlying felony
  • Insufficient evidence of causation
  • Insufficient evidence of specific intent for aggravated burglary
  • Prosecutorial error
State v. Derek Campbell, No. 116,430 (Sedgwick)
Direct appeal; First-degree premeditated murder
Korey A. Kaul
[Affirmed; Stegall; August 17, 2018]
  • Improper rehabilitation of prosecution witness
  • Improper admission of prior bad act evidence
  • Failure to give voluntary manslaughter instruction as lesser-included offense
State v. Jonell Lloyd, No. 115,834 (Sedgwick)
Sentencing appeal (after remand)
Clayton J. Perkins
[Affirmed; Rosen; August 10, 2018]
  • Improper admission of testimony from first trial
  • Insufficient evidence of prior conviction used for enhancement

January 23--Tuesday--a.m.

State v. Lawrence Hubbard, No. 113,888 (Douglas)
Direct appeal (petition for review); Possession
James Edwin Rumsey
[Affirmed; Biles; December 7, 2018]
  • No probable cause to search apartment
  • No exigent circumstances to allow warrantless search
  • Improper admission of law opinion re: smell of marijuana
State v. Tyler Regelman, No. 116,398 (Geary)
State's appeal (petition for review); Possession of Marijuana
Amber Cabrerra
[Affirmed/reversed; Biles; December 7, 2018]
  • Whether questions regarding marijuana odor were custodial
  • No probable cause to search home
State v. Pablo Gonzalez, No. 112,841 (Pottawatomie)
Direct appeal (petition for review); Unintentional second-degree murder
Carol Longenecker Schmidt
[Affirmed; Biles; March 9, 2018]
  • Unintentional second-degree murder is unconstitutionally vague
  • Insufficient evidence of unintentional second-degree murder
  • Improper answer to jury question
  • Improper limiting instruction re: prior bad act evidence

January 24--Wednesday--a.m.

State v. Thomas Jenkins, No. 106,741 (Saline)
Direct appeal; First-degree murder
Gerald E. Wells
[Affirmed; Rosen; July 27, 2018]
  • Insufficient evidence to support convictions
  • Juror misconduct
  • Improper retrospective competency determination
State v. Dana Chandler, No. 108,625 (Shawnee)
Direct appeal; First-degree premeditated murder
Stacey Schlimmer
  • Insufficient evidence to support convictions
  • Prosecutorial error re: arguing facts not in evidence

January 25--Thursday--a.m

State v. Archie Robinson, No. 115,483 (Douglas)
Direct appeal; First-degree felony murder
Meryl Carver-Allmond
[Affirmed; Luckert; June 29, 2018]
  • Insufficient evidence of proof that defendant killed victim
  • Improper jury instruction re: shooter in felony murder case
State v. Dustin Walker, No. 116,174 (Douglas)
Direct appeal; First-degree felony murder
Peter Maharry
[Affirmed; June 29, 2018]
  • Improper meeting with juror outside defendant's presence
  • Judicial misconduct re: shredding juror's notes without notice to parties
  • Improper admission of statements in violation of Miranda
  • Failure to give aiding and abetting instruction

January 26--Friday--a.m.

Danny Beauclair v. State, No. 112,556 (Shawnee)
K.S.A. 60-1507 appeal (petition for review)
Jonathan B. Phelps
[Remanded; Beier; June 22, 2018]
  • Failure to apply "actual innocence" exception to time limit
State v. Awnterio Lowery, No. 115,377 (Shawnee)
Direct appeal; First-degree premeditated murder
Richard Ney
[Affirmed; per curiam; October 5, 2018]
  • Prosecutorial error re: closing arguments
  • Denial of right to be present during hearings
  • Improper aiding and abetting instruction
  • Improper admission of involuntary statement
  • Failure to redact portions of recorded statement (Elnicki)
  • Improper admission of hearsay evidence
  • Insufficient evidence
In re Clay Snyder, No. 117,512 (Pawnee)
Civil commitment of person incompetent to stand trial
Mary D. Curtis
[Affirmed; Stegall; July 27, 2018]
  • Involuntary commitment of persons incompetent to stand trial violates Equal Protection
  • Involuntary commitment of persons incompetent to stand trial violates Due Process
  • Insufficient evidence for involuntary commitment
In re Habeas Petition of Clay Snyder, No. 117,167 (Original Action)
Petition for Habeas Corpus
Mark J. Dinkel
[Petition denied; Stegall; July 27, 2018]
  • Speedy trial violation due to lengthy incompetency detention
  • Due process violation due to lengthy incompetency detention