September 2018 KSC Docket

Here are the criminal cases on the KSC docket for September 10-13, 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.

September 10--Monday--a.m.

State v. Brian Murrin, No. 115,110 (Clay)

Direct appeal (petition for review); Possession/Interference

Rick Kittel

[Affirmed; Beier; March 8, 2019]

• Failure to instruct on voluntary intoxication

State v. Robert Doelz, No. 113,165 (Leavenworth)

Direct appeal (petition for review); Possession with intent to distribute

Peter Maharry

[Reversed/remanded; Johnson; January 11, 2019]

• Officer exceeded scope of traffic stop
• Officer violated Fourth Amendment by searching object seized from vehicle

State v. Jesus Munoz, No. 114,219 (Shawnee)

Direct appeal (petition for review); Agg indecent liberties with a child/Electronic solicitation

Kimberly Streit Vogelsberg

[Petition for review voluntarily dismissed August 30, 2018]

• Improper instruction on electronic solicitation
• Insufficient evidence of electronic solicitation
• Prosecutorial error (closing argument)

State v. Lindsey Blansett, No. 115,634 (Sumner)

Direct appeal; First-degree premeditated murder

Michelle A. Davis

[Affirmed; Stegall; March 8, 2019]

• Improper instruction on premeditation
• Improper prosecutorial comment (burden shifting/misstating evidence)

September 12--Wednesday--a.m.

State v. James Jamerson, No. 115,629 (Shawnee)

Sentencing appeal

Joseph A. Desch

[Reversed/remanded; Nuss; January 25, 2019]

• Improper increase in sentences not found illegal

September 13--Thursday--a.m.

State v. Kenneth Boysaw, No. 112,834 (Sedgwick)

Direct appeal (petition for review); Agg indecent liberties with a child

Corrine E. Gunning

[Affirmed; Rosen; April 19, 2019]

• Insufficient evidence of intent
• Improper admission of prior convictions to show propensity
• Aggravated habitual sex offender statute unconstitutional

State v. Murad Razzaq, No. 114,325 (Sedgwick)

Direct appeal (petition fo review); Agg indecent liberties with a child

Corrine E. Gunning

[Affirmed; Rosen; April 19, 2019]

• Improper admission of other bad acts evidence
• Statutory speedy trial violation

State v. David Parker, Jr., No. 112,959 (Sedgwick)

Direct appeal (petition for review); Possession/Fleeing and Eluding

Christina M. Kerls

[Affirmed; Biles; December 7, 2018]

• Fourth Amendment violation (search exceeded scope of stop)
• Insufficient evidence of fleeing and eluding
• Improper sentence increased based on prior convictions

Social guest has expectation of privacy, even if not present

Donald E. Anderson, II won in State v. Dannebohm, No. 116,981 (Kan. July 6, 2018), reversing the COA's decision finding that Mr. Dannebohm did not have standing to raise a Fourth Amendment challenge during a Barton County drug prosecution. Officers searched an apartment where Mr. Dannebohm had a safe and found methamphetamine. But the apartment was not his and Mr. Dannebohn did not live there. Judge Svaty suppressed the evidence as fruit of an illegal search. The COA reversed holding that Mr. Dannebohm did not have standing to make a Fourth Amendment challenge. The COA reasoned that while Mr. Dannebohm was a welcomed social guest in the apartment, he was not present at the time of the search and, therefore, not a current guest. The KSC held that Mr. Dannebohm showed his had a sufficient expectation of privacy in the apartment to allow him to make the claim:

Tracy and Dannebohm knew each other for about 10 years, and they shared a close, sibling-like relationship. In the weeks before the search, Dannebohm was at the apartment daily. Tracy thought of him as a welcomed guest. She allowed him to stay at the apartment when she was absent. And he kept a duffel bag with his clothing at the apartment.

What is more, Dannebohm at times slept on the couch for hours at a time. Though he was not an overnight guest, the fact that Tracy permitted him to nap there after he ate dinner suggests a significant degree of acceptance into the household. 

Were we to stop here, we would easily conclude Dannebohm has shown a “degree of acceptance into the household” as well as a “meaningful connection” to Tracy's apartment. But the Court of Appeals believed that because Dannebohm was not present at the time of the search, he was not a current guest of Tracy's. Dannebohm, This holding is not entirely clear. Dannebohm was a welcomed guest who frequented Tracy's apartment daily. And he was there on the day of the search. The panel must have thought Dannebohm lost any reasonable expectation of privacy the moment he left the apartment. We disagree.\

. . . .

We have described a social guest as someone who “stand[s] in the shoes of his or her host.” Since Tracy would have standing to challenge the search of her apartment even if she were not present at the time of the search, see Alderman v. United States, 394 U.S. 165 (1969), Dannebohm's absence is not fatal to his ability to challenge the search. Under the circumstances of this case, Dannebohm's reasonable expectation of privacy in the apartment did not evaporate the moment he left. To draw such a bright (and easily manipulatable) line would unjustifiably gut a proper reasonable expectation of privacy inquiry, which demands a court's full attention to the totality of the circumstances.

As a result, the KSC remanded to the COA for a ruling on the merits of the state's appeal.

[Update: on remand, the COA affirmed Judge Svaty's suppression order, as blogged about here].

Either get waiver in writing or file petition for review

Joshua S. Andrews won in White v. State, No. 114,285 (Kan. July 6, 2018), obtaining a new hearing on whether his motion pursuant to K.S.A. 60-1507 should be permitted out of time due to manifest injustice. Mr. White had filed his petition about a year late, but alleged that the manifest injustice exception applied to excuse the late filing. The district court disagreed and summarily dismissed the motion.

Mr. White testified that the ADO had limited contact with him regarding a motion for summary disposition filed in the appellate court, in particular after he had received an adverse decision from the Court of Appeals. A letter from an ADO attorney indicated that the ADO would not file a petition for review unless Mr. White directed it to do so. In later correspondence from the ADO, it explained that it had closed Mr. White's file when he did not respond to a letter asking whether he wanted to file a petition for review. The ADO acknowledged that it had not sent a copy of the appellate mandate to Mr. White.

On appeal, the KSC first rejected the state's argument that an amendment to K.S.A. 60-1507(f), limiting "manifest injustice" to (1) reasons for the timely failure or (2) actual innocence should apply retroactively: "It would be manifestly unjust to apply the 2016 amendments if White can establish manifest injustice by using factors not included in them."

On the merits, the KSC noted the impact if Mr. White was not properly notified regarding the end of his appeal process:

we pause to emphasize that White alleges he did not receive notice of the Court of Appeals' adverse decision or of the mandate that triggered the one-year limitation of 60-1507(f). This means he allegedly lost the ability (1) to timely file a petition for review in his direct appeal, a claim made in his 60-1507 motion, and (2) to file a timely 60-1507, the claim pursued at the preliminary hearing on the 60-1507 motion. Thus, he potentially lost complete access to two state judicial proceedings and may be barred from seeking federal habeas review because he failed to exhaust state remedies when he did not file a petition for review.

The loss of access to these judicial proceedings results in the deprivation "'of more than a fair judicial proceeding,'" it results in the deprivation of an appellate and a federal "'proceeding altogether . . . . [And] we cannot accord any "'presumption of reliability'" [citation omitted] to judicial proceedings that never took place.'" Kargus v. State, 284 Kan. 908, 920, 169 P.3d 307 (2007) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483, (2000)).

The KSC went on to find that the record was not sufficient to support the district court's finding regarding Mr. White's knowledge the end of the appeal process. In particular, the KSC agreed with the COA's criticism of the ADO for failing to file a petition for review in the absence of explicit directions from the client:

We also join the panel in expressing our concern over the practice by which the ADO considers silence to be permission to take no further action on a client's behalf. As the panel rightly noted, "silence was equally compatible with White having never received the letter at all, something that would have to be considered reasonably foreseeable especially within the corrections system." 

. . . .

Valuable rights may be lost when silence is treated as consent. A written communication waiving a petition for review better protects (1) the client's rights and (2) the judgment against a later attack based on a claim of ineffective assistance of counsel. Here, we are left with no paper trail to confirm whether White received notice and purposefully elected to waive his right to file a petition for review or a 60-1507 motion.

As a result, the KSC remanded to the district court to consider whether Mr. White received notice of the end of his appellate proceedings along with full consideration of his claims regarding the merits of his claims of error and his claims of innocence.

One consequence of this decision is that appellate counsel (at least appointed counsel) should probably file a petition for review in every case in which they receive an unfavorable decision from the COA unless they have a written waiver. And it is pretty much unheard of for a client to decide to waive that right--why would they? This decision is consistent with and confirms many appellate attorneys' practice (including within the ADO), which is to just file a petition for review in every case in which they have received an unfavorable COA decision.

 

Normal nervousness and minor travel plan inconsistencies do not support reasonable suspicion

Dakota T. Loomis won in State v. Lowery, No. 116,637 (Kan. June 22, 2018), affirming Judge Segarra's suppression order in a Geary County transportation of drug proceeds prosecution. During a traffic stop for following too close, the officer directed Mr. Lowery to sit in his patrol car. While filling out a citation, the officer asked about travel plans. Move than six minutes into the traffic stop, the officer called in Mr. Lowery's license and registration information. The officer then went back to the car and asked the passenger about travel plans. Dispatch indicated no warrants for Mr. Lowery, so the officer gave him the citation and told Mr. Lowery he was free to go. The officer then asked if Mr. Lowery would answer some additional questions and consent to search the car, Mr. Lowery denied consent to search the car, and the officer then again directed Mr. Lowery to sit in the patrol ca. The officer asked for permission to have a drug dog check the car. Mr. Lowery asked whether he had any options and the officer said it was a step-by-step process. The officer said he had suspicion and detained Mr. Lowery. Because no other canine units were available, the officer went home and got his own canine unit (while backup officers stayed with Mr. Lowery). Nearly 35 minutes after the beginning of the traffic stop, the dog alerted near the trunk and the officers subsequently discovered drug related evidence after searching the car.

Judge Segarra found that the stop was over when the officer gave Mr. Lowery the citation, but that the resulting consensual encounter quickly ended when the officer directed Mr. Lowery to again sit in the patrol car. The question on appeal was whether the officer had reasonable suspicion to continue to detain Mr. Lowery.

The COA reversed finding that the officer had such suspicion, including observed nervousness, allegedly implausible travel plans, and the use of a third-party vehicle. The KSC disagreed. It observed that the video recording showed that "[w]hile Lowery can be described as nervous, especially after the officer turned to more incriminating subjects, Lowery can be seen answering [the officer's] questions with little hesitation, without confusion, and in a conversational tone." The KSC held that this supported the district court's finding that nervousness did not provide reasonable suspicion to detain. 

Similarly, the KSC upheld the district court's finding that the reported travel plan discrepancies were minor and insignificant as it related to possible criminal activity. And the KSC held that, where the car in question was properly insured, tagged, and registered with no report of it being stolen, the fact that it belonged to someone else did not support reasonable suspicion.

After reviewing all of the circumstances, the KSC agreed that the state did not meet its burden to show the challenged seizure was lawful and affirmed the suppression order.

Questions about travel plans are not always permitted during traffic stop

Kasper Schirer won in State v. Jimenez, No. 116,250 (Kan. June 22, 2018), affirming Judge Segarra's suppression order in a Geary County transfer of drug proceeds prosecution. When Ms. Jimenez was getting a rental agreement from the glove box during a traffic stop for following too close, the officer saw some money bundled in a rubber band. The officer had Ms. Jimenez go to his car where he questioned her about her trip. Abut five minutes and 34 seconds passed between the vehicle stop and calling in of Ms. Jimenez' drivers' license. Shortly thereafter, the officer deployed his canine unit to sniff the car. It alerted six minutes and 49 seconds after the stop began. The officer asked if there were drugs in the car, which Ms. Jimenez denied. The officer also asked whether there were any large amounts of money in the car, and Ms. Jimenez indicated there was $8,000 in cash to pay rent. Officers searched the car and found no drugs, but several currency bundles totaling about $50,000.

Judge Segarra found that the officer measurably extended the stop with questions about Ms. Jimenez' travel plans, which were unrelated to the purpose of the traffic stop, and that the officer lacked reasonable suspicion to detain her at that time. The COA reversed finding that travel plan questions were always within a stop's scope. The KSC distinguished and limited a previous case that the state touted as justifying travel plan questions during any traffic stop:

The [Rodriguez v. United States, 135 S.Ct. 1609 (2015)] court proclaimed a traffic stop's purpose is addressing the infraction and forbade the stop's duration be any longer than necessary to effectuate that purpose. This leads us to conclude Rodriguez does not envision unbridled travel plan questioning as a staple of traffic stop inquiries. Circumstances will dictate whether and to what extent such questions become part of the mission. 

The KSC recognized that travel plan questions could be appropriate as part of a traffic stop if tied to enforcement of the traffic code, like making sure that a driver can safely operate a vehicle. But the KSC noted that such questions would be harder to justify for many other traffic stops:

These scenarios highlight why circumstances dictate how a court views travel plan questioning. And courts must guard against what might be called "mission creep" by rejecting poorly justified excuses for law enforcement actions that temporally extend traffic stop encounters but lack "the same close connection to roadway safety" as those tasks enumerated in Rodriguez. In other words, when travel plan questions can be seen as having a close connection to roadway safety, they can occur without unconstitutionally extending the stop's scope. See 4 Search & Seizure § 9.3(d) (rejecting argument that travel plan questions are always within the traffic stop's scope and noting Rodriguez' listing did not include such questioning as part of the mission).

The KSC specifically rejected "the State's effort to have Kansas courts condone across-the-board travel plan inquiries."

Applying this test, the KSC agreed with Judge Segarra that "the questioning was unrelated to the infraction or the traffic stop's mission and measurably extended the stop."

Instead of pursuing his mission—inspecting the driver's license, verifying the registration and insurance, and determining if Jimenez was subject to outstanding warrants—Blake chose a different, unrelated investigation into Jimenez' recent activities, but "not to gain some insight into the traffic infraction providing the legal basis for the stop." This prolonged the stop because Blake was doing nothing in the interim to process the traffic violation. And he repeatedly testified he did not suspect criminal activity, so there was no colorable, independent justification for the portions of the detention attributable solely to the unrelated inquiries. As a result, this extended detention violated the Fourth Amendment. 

In conclusion, the KSC also rejected the COA's reasoning that the fact that the entire stop (until the dog alerted) lasted only 6 minutes and 49 seconds.  The KSC clarified that Rodriguez had rejected any sort of "rule-of thumb approach." Because the stop was measurably extended without a sufficient basis, the KSC affirmed the suppression order.