No physical disengagement when trooper is asking questions while leaning in car window

Michelle A. Davis won in State v. Luis Gonzalez, No. 119,212 (Kan. App. November 27, 2019), obtaining reversal and remand in a Coffey County possession with intent to distribute prosecution. An trooper stopped Mr. Gonzalez' car for going 78 mph in a 75 mph zone. After obtaining and confirming Mr. Gonzalez' license and insurance information, the trooper did a "Kansas two-step" telling the driver to have a nice day, but immediately asking additional questions. Although Mr. Gonzalez was in the process of leaving he stopped and answered the trooper, who had placed his hands on Mr. Gonzalez' car. The trooper continued to question Mr. Gonzalez about his travel plans and eventually asked for and received consent to search, resulting in the discovery of marijuana.

The primary question on appeal was whether the trooper had improperly extended the traffic stop. The COA conducted a detailed analysis of the circumstances and concluded that the troooper's actions did not constitute a consensual encounter:

Based on the particular facts presented here, we find reasonable persons would not have known they could refuse to answer questions and leave the scene. Specifically, the dash cam video reflects that Trooper Marten was leaning into the Escalade with his hands on the open passenger window of the Escalade at the same time he was asking if Gonzalez would be willing to answer more questions. Had Gonzalez continued to proceed forward and leave the scene instead of putting his foot on the brake and placing his vehicle in park, Gonzalez easily could have concluded that leaving the scene would physically injure Trooper Marten.

The COA recognized that failure to inform the driver that he or she could leave is not dispositive, but is still relevant. The COA held that the circumstances did not amount to "clear physical disengagement." The COA also held that while several coercive factors were not necessarily present, the circumstances still constituted a detention. Because the state did not show reasonable suspicion to extend the stop, the COA reversed and remanded with directions to suppress.

[Update: the state did not file a PR and the mandate issued on January 3, 2020.]

Justice Wilson

Here is the Governor's press release announcing that she has appointed Evelyn Z. Wilson, currently Chief Judge of the Third District in Topeka to fill a vacancy on the Kansas Supreme Court created by the retirement of Justice Lee Johnson. Judge Wilson, a Washburn Law graduate, has served on the district bench since 2004 and as Chief Judge since 2014.

[Update: here is a court press release indicating that Justice Wilson will be sworn in on January 24, 2020.]

January 2020 KSC Docket

Here are the criminal cases on the KSC docket for January 27-31, 2020. 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 27--Monday--a.m.

State v. Jacqueline Coleman, No. 115,293 (Sedgwick)

Probation violation appeal (petition for review)

Caroline M. Zuschek

[Affirmed; Biles; April 3, 2020]

• Improper classification of prior involuntary manslaughter conviction

State v. Charles Bowser, No. 120,350 (Wyandotte)

Direct appeal; Attempted capital murder/agg robbery

Debra J. Wilson

[Affirmed; Stegall; October 23, 2020]

• Judicial misconduct (discussing plea negotiations with defendant)
• Prosecutorial error during closing argument
• Improper response to mid-deliberation jury question

State v. Cecil Meggerson, No. 117,131 (Wyandotte)

Direct appeal; Attempted capital murder/agg robbery

Jeffrey C. Leiker

[Affirmed; Stegall; October 23, 2020]

• Insufficient evidence for attempted capital murder
• Improper admission of cell phone contents
• Improper admission of jail phone calls
• Improper admission of uncharged robberies
• Improper admission of cumulative timeline evidence

State v. Tabitha Carter, No. 116,223 (Sedgwick)

Direct appeal (petition for review); Agg robbery

Jennifer C. Roth

[Affirmed; per curiam; March 6, 2020]

• District court improperly found use of deadly weapon for use of stun gun

January 28--Tuesday--a.m.

State v. Yesenia Sesmas, No. 119,862 (Sedgwick)

Direct appeal; First-degree murder/kidnapping

Meryl Carver-Allmond

[Affirmed; Beier; March 13, 2020]

• Improper admission of involuntary statements
• Improper admission that defendant invoked Miranda rights

State v. Efrain Gonzalez, Jr., No. 119,492 (Wyandotte)

Direct appeal; First-degree felony murder/attempted agg robbery

Jonathan L. Laurans

[Affirmed; Biles; March 27, 2020]

• Insufficient evidence to support intent to commit robbery
• Insufficient evidence of agreement for conpiracy
• Improper jury instruction on aiding and abetting
• Convictions for aiding and abetting and conspiracy violate Double Jeopardy Clause
• Improper exclusion of accomplice testimony
• Batson challenge

State v. Christopher Dale, No. 117, 162 (Johnson)

Direct appeal (petition for review); Agg robbery

Peter T. Maharry

[Affirmed; Luckert; October 16, 2020]

• Double Jeopardy violation for prosecution after first conviction affirmed on appeal
• Separate convictions for aggravated robbery are multiplicitous

State v. Reginald Frazier, No. 117,456 (Geary)

Motion to withdraw plea appeal (petition for review)

Clayton J. Perkins

[Reversed/remanded; Wilson; April 17, 2020]

• Uncertain provision in plea agreement constituted good cause to withdraw plea

January 29--Wednesday--a.m.

State v. Thad Green, 118,366 (Montgomery)

Direct appeal; First-degree premeditated murder

Peter T. Maharry

[Affirmed; Beier; August 21, 2020]

• Failure to give voluntary intoxication instruction
• Failure to give lesser-included offense instruction
• Failure to give cautionary informant instruction
• Improper admission of recorded statements

State v. John Harrison, No. 116,670 (Johnson)

Direct appeal (petition for review); Battery on a LEO

Rick A. Kittel

[Affirmed; Biles; July 17, 2020]

• Denial of statutory right to be present when jury question answered in writing
• Denial of constitutional right to be present when jury question answered in writing

January 30--Thursday--a.m.

State v. Ritchie Randle, Jr., No. 119,720 (Sedgwick)

Direct appeal; First-degree premeditated murder/criminal discharge of firearm

Rick A. Kittel

[Affirmed; Biles; May 1, 2020]

• Failure to give lesser-included offense instruction
• Insufficient evidence to support premeditated murder
• Improper admission of hearsay testimony
• Improper admission of photographs
• Improper admission of crime scene video
• Improper admission of photo of defendant in custody
• Improper denial of departure at sentencing

State v. De'Angelo Martinez, No. 119,739 (Shawnee)

Direct appeal; First-degree premeditated murder

Kristen B. Patty

[Affirmed; Luckert; July 24, 2020]

• Prosecutorial error in closing argument (burden shifting)

State v. Christopher Pattillo, No. 118,941 (Shawnee)

Direct appeal; First-degree felony murder/agg assault/discharge of a firearm

Michelle A. Davis

[Affirmed; Luckert; August 21, 2020]

• Aggravated assault conviction merged with felony murder
• Insufficient evidence of risk to support child endangerment conviction
• Insufficient evidence of criminal discharge of firearm
• Insufficient evidence of felony murder
• Improper jury instruction on felony murder
• Failure to give lesser included offense of child endangerment

State v. Bryan Harris, No. 117,362 (Atchison)

Direct appeal (petition for review); Possession

Rick A. Kittel

[Reversed/remanded; Wilson; April 17, 2020]

• Failure to obtain proper jury trial waiver

January 31--Friday--a.m.

State v. Sony Uk, No. 119,712 (Lyon)

Direct appeal; First-degree premeditated murder

Korey A. Kaul

[Affirmed; Wilson; April 17, 2020]

• Failure to give voluntary manslaughter instruction
• Deficient jury instruction re: premeditation

State v. Willie Parker, No. 118,349 (Wyandotte)

Direct appeal; First-degree premeditated murder

Meryl Carver-Allmond

[Affirmed; Rosen; March 13, 2020]

• Improper admission of involuntary statements
• Improper admission of statements without voluntary Miranda warning
• Failure to give voluntary manslaughter instruction

Stipulation to element requires proper jury trial waiver

Samuel Schirer won in State v. Johnson, No. 113,228 (Kan. November 27, 2019), obtaining a new trial in a Sedgwick County criminal possession of a firearm, aggravated assault, and criminal discharge of a firearm prosecution. The COA had found that the trial judge had fallen asleep at one point during the trial and reversed for structural error. The KSC reversed the holding that such an error was structural and remanded to the COA for a prejudice analysis. But the KSC also reversed the COA's holding that the district court was not required to obtain a proper jury trial waiver when accepting Mr. Johnson's stipulation to an element of the criminal possession charge. As is common in a criminal possession of a firearm prosecution, Mr. Johnson indicated an interest in stipulating to a predicate offense, which is an element of that offense. The KSC held that, even a stipulation to a single element, implicates the Jury Trial Clause and would require a proper waiver colloquy:

The State suggests the stipulation by itself was not tantamount to a guilty plea and did not require a jury trial waiver at all. We disagree. The Fifth and Sixth Amendments to the United States Constitution "entitle [] criminal defendant[s] to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000). And when a defendant stipulates to an element of a crime, the defendant has effectively given up his or her right to a jury trial on that element.

We have consistently held that jury trial waivers "should be strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury." And because every defendant has the fundamental right to a jury trial, courts cannot accept a jury trial waiver "'unless the defendant, after being advised by the court of his right to trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record.'" State v. Irving, 216 Kan. 588, 589-90, 533 P.2d 1225 (1975) (noting that a waiver will not be presumed from a silent record). 

So the KSC remanded this issue to the COA as well for a determination of whether Mr. Johnson validly waived his right to jury trial.

[Update: on remand, the COA held that any judicial misconduct error was invited and/or Mr. Johnson did not show that it was prejudicial. But it also held that the criminal possession of a firearm had to be reversed for lack of a jury trial waiver. And it had already reversed the criminal discharge of a firearm conviction based on failure to give a lesser-included offense. State v. Johnson, No. 113,228 (Kan. App. May 1, 2020)(unpublished). So it affirmed the aggravated assault conviction and reversed and remanded the remaining convictions for new trial.]

[Further update: the KSC denied Mr. Johnson's second PR and the mandate issued on October 14, 2020.]

Short list for district court in Lawrence includes two defenders

Here is a press release announcing that the Seventh Judicial District Nominating Commission nominated the following three persons (including two public defenders!) to fill the vacancy created by the retirement of Chief Judge Peggy Carr Kittel: Stacey Donovan, chief public defender Shawnee County Public Defender's Office; Carl Folsom III, assistant federal public defender; and Shon Qualseth, assistant attorney general. The Governor has 60 days to appoint one of these three persons.

[Update: here is a blog post reporting the Governor's selection of Stacey Donovan from this list.]

Late disclosure by state at end of speedy trial limit justfies dismissal with prejudice

Patrick H. Dunn won in State v. Auman, No. 120,438 (Kan. App. November 1, 2019), affirming Judge Porkorny's dismissal of a Douglas County aggravated battery while DUI prosecution. The state did not provide dashcam video of the incident until the Friday before trial the next Monday. The video included evidence of previously undisclosed witnesses and other exculpatory evidence. The Monday trial date was the last date to try Mr. Auman under the statutory speedy trial limit. Just before trial, Mr. Auman moved to dismiss based on the late disclosure. Judge Porkorny agreed finding that the late disclosure impaired the defense opportunity to contact witnesses and that the statutory speedy trial limit was running. The COA held that Judge Porkorny did not abuse her discretion:

If the State had disclosed the video dashcam evidence earlier in the case, instead of the Friday before a Monday trial, Auman would have had an opportunity to contact the witnesses and investigate this available defense. But it was not reasonable—particularly given the time that had passed between the May 2016 collision and the October 2018 trial—to expect that the defense could contact these witnesses and investigate their accounts the weekend before the trial.

And while the prejudice caused by delayed disclosures of material discovery in some cases may be rectified through another discovery sanction (such as the exclusion of certain evidence) or continuing the trial, such remedies were not available here. The State's suggested remedy of excluding the dashcam video, which the State intended to offer so the jury could hear Auman's speech and statements to law enforcement, would have been ineffective to correct the crux of the problem—that the State did not disclose potentially exculpatory information in time for Auman to conduct an investigation and present his defense at trial.

Neither was a continuance a feasible option in this case, as the Monday trial was the last available trial date that would comport with Auman's statutory right to a speedy trial. In short, any other remedy would have placed Auman in the untenable situation of having to choose between enforcing his constitutional right to a fair trial and exercising his statutory right to have his case be tried within 180 days of arraignment. The district court was well-aware of this predicament, explaining it could either dismiss the case when it did, based on the failure to disclose the dashcam video, or dismiss it later under the Kansas speedy trial statute. 

In affirming the district court's dismissal, we are sensitive to the difficult position a prosecutor may find himself or herself in when faced with a law enforcement department that does not promptly respond to discovery requests. Here, the prosecutor submitted numerous requests to the Lawrence Police Department for evidence related to Auman's collision—including multiple requests for dashcam video evidence. In dismissing this case, the district court specifically found that "this is not a blaming game that somehow the prosecution didn't do enough in order to make sure that the discovery was complete," but rather surmised that the issue may have arisen as a result of the computer system used by the State. We have no reason to doubt this assessment, though we note that the State's requests all came within a week of a then-scheduled trial.

Under these circumstances, the COA held that the extreme remedy of dismissal was appropriate.

[Update: the state did not file a PR and the mandate issues on December 17, 2019.]

Reckless criminal threat convictions are unconstitutional

Clayton J. Perkins won in State v. Boettger, No. 115,387 (Kan. October 25, 2019) and State v. Johnson, No. 116,453 (Kan. October 25, 2019), each involving whether a conviction for reckless criminal threat would violate the First Amendment. The state charged that Mr. Boettger made a threat to commit violence made in reckless disregard of causing fear. The state charged that Mr. Johnson made a threat to commit violence with intent to commit fear or made in reckless disregard of causing fear.

The KSC reviewed the overbreadth doctrine under the First Amendment and the potential for a statute that criminalizes reckless speech to criminalize protected speech. It recognized that the SCOTUS has held that this tension can be present with "true threats" and distinguishing between political hyperbole and true threats. After review of SCOTUS precedent (and other courts' interpretation of that precedent), the KSC concluded that Virginia v. Black, 538 U.S. 343 (2003) requires that a threat be made with intent to cause fear in order to be constitutionally prosecutable:

Black found specific intent was necessary to convict under the Virginia cross-burning statute at issue in that case. The Court stated "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." It strains the plain meaning of the Court's language to conclude that "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" are not made "with the intent of placing the [particular individual or group of individuals] in fear of bodily harm or death." A person who "means to communicate a serious expression of an intent to commit an act of unlawful violence" is aware of the illegality of the violence he or she purportedly intends to commit and makes a serious expression of that intent, which he or she meant to communicate. (Emphasis added.) This definition conveys that the conduct is intentional. 

Under Black, the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a threat of violence is made in reckless disregard for causing fear causes the statute to be unconstitutionally overbroad because it can apply to statements made without the intent to cause fear of violence. See K.S.A. 2018 Supp. 21-5202(h) and (j) (defining "intentionally" and "recklessly" in Kansas criminal statutes). The provision significantly targets protected activity. And its language provides no basis for distinguishing circumstances where the speech is constitutionally protected from those where the speech does not warrant protection under the First Amendment.

Because Mr. Boettger was only convicted of reckless criminal threat, the KSC reversed his conviction.

In Johnson, the KSC was faced with a slightly different procedural posture, because the state had charged Mr. Johnson with intentional or reckless criminal threat. The state argued that, because evidence supported a conviction for intentional criminal threat, any error should be harmless in the companion case. The KSC disagreed:

The district court instructed the jury on both forms of criminal threat and accurately recited the definitions of "intentionally" and "recklessly" in K.S.A. 2018 Supp. 21-5202(h) and (j). But neither the jury instructions nor the State's arguments steered the jury toward convicting Johnson based solely on one mental state or the other. Nor did the judge instruct the jury it had to agree unanimously on whether Johnson acted intentionally or recklessly. And the verdict form did not require the jury to make a specific finding. Thus, the record provides no basis for us to discern whether the jury concluded that the State had proved beyond a reasonable doubt that Johnson acted intentionally.

Nor, despite the State's argument, does a review of the evidence. The State asserts that given Johnson's threat to kill his mother, "[n]o jury would find this threat was anything other than intentionally made with the intent to place another in fear." But the State fails to address conflicting evidence at trial, particularly Walker's testimony that the family routinely threatened to kill each other but no one took it literally. Walker also testified she did not recall Johnson threatening to kill her or burn down the house. And she thought the officers may have misinterpreted what she said because she was in a highly excited state and had been discharged from the hospital two days earlier and was still under the effect of morphine. Walker also made it clear she was motivated to have her son leave her home. A reasonable juror could thus conclude she exaggerated the situation to obtain legal help in keeping her son away. Given these circumstances, a reasonable fact-finder may have determined there was some discrepancy between what Johnson said to Walker and what she reported to the officers. 

The jury was free to determine Walker's credibility and decide what weight to give to her testimony. If it believed that Johnson did not intend such threats to be taken literally but that Walker was genuinely fearful when she called for law enforcement assistance, it could have believed the statements were made with a reckless disregard for whether they caused fear. The State has not addressed this possibility and has not met its burden of proving the error harmless beyond a reasonable doubt. 

As a result, the KSC reversed Mr. Johnson's conviction and remanded for a new trial.

These cases are likely to be impactful, both in criminal threat cases directly and in cases where criminal threat has been used as a person felony in a client's criminal history. Many cases probably will involve situations like Mr. Johnson's--where it will be difficult or impossible to discern whether a client was convicted only of intentional criminal threat. So I would expect that we will see additional litigation in  on these questions.

[Update: the state filed a petition for writ of certiorari on February 20, 2020 as outline in SCOTUSblog here.]

[Further update: SCOTUS denied the state's petition for writ of certiorari on June 22, 2020. The KSC mandate issued on June 23, 2020.]

December 2019 KSC Docket

Here are the criminal cases on the KSC docket for December 16-20, 2019.  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.

December 16--Monday--a.m.

State v. Michael Keyes, No. 118,894 (Grant)

Direct appeal; First-degree premeditated murder

Randall L. Hodgkinson

[Reversed/remanded; Stegall; September 11, 2020]

• Failure to give self-defense instruction
• Failure to give lesser-included offense instruction

State v. Charles Satchell, No. 116,151 (Sedgwick)

Direct appeal (petition for review); Agg criminal sodomy/rape

Caroline M. Zuschek

[Affirmed/vacated; Leben; June 26, 2020]

• Improper admission of prior bad acts to show propensity
• Improper imposition of postrelease supervision

State v. Christopher Harris, No. 116,515 (Sedgwick)

Direct appeal (petition for review); Criminal possession of weapon

Kasper C. Shirer

[Reversed; Stegall; July 17, 2020]

• Residual clause of criminal possession of weapon statute vague
• Failure to give mistake of law instruction

State v. Crystal Galloway, No. 117,941 (Cherokee)

Direct appeal (petition for review); First-degree premeditated murder/arson

Carol Longenecker Schmidt

[Affirmed/vacated; Rosen; March 13, 2020]

• Failure to change venue
• Improper admission of involuntary statements
• Failure to consider mitigating circumstance of lack of criminal history

December 17--Tuesday--a.m.

State v. Robbie Thomas, No. 115,990 (Chautauqua)

Direct appeal (petition for review); Aggravated battery/child abuse

Michelle A. Davis

[Reversed/remanded; Luckert; July 24, 2020]

• Improper instruction re: knowing conduct for aggravated battery
• Prosecutorial error in closing argument
• Improper classification of Virginia prior conviction

In re J.P., No. 118,790 (Wyandotte)

Sentencing appeal (petition for review)

Michael Christian Duma

[COA dismissal reversed; Leben; June 26, 2020]

• Whether COA has jurisdiction over sentence appeal in juvenile case

December 18--Wednesday--a.m.

State v. Morgan Boeschling, No. 116,757 (Reno)

Direct appeal (petition for review); Burglary/Criminal possession of firearm

Randall L. Hodgkinson

[Affirmed; Beier; February 14, 2020]

• Improper answer to jury question re: nullification
• Improper culpable mental state instruction for burglary
• Failure to give accomplice instruction

State v. Charity Downing, No. 116,629 (Reno)

Direct appeal (petition for review); Burglary

Michelle A. Davis

[Reversed; Biles; January 24, 2020]

• Insufficient evidence of "dwelling" to prove residential burglary

State v. Hailey Larkin, 115,985 (Jackson)

Direct appeal (petition for review); DUI

Matthew Ryan Roy Williams

[Petition dismissed as improvidently granted; February 5, 2020]

• Failure to suppress blood test results
• Insufficient evidence of BAC at time of driving
• Judicial misconduct (improper judicial comment)

December 19--Thursday--a.m.

State v. Kevin Coleman, No. 118,673 (Saline)

Probation revocation appeal (petition for review)

Kai Tate Mann

[Reversed/remanded; Green; April 10, 2020]

• Failure to impose intermediate sanctions upon revocation

State v. Jerry Liby, No. 118,834 (Saline)

Probation revocation appeal (petition for review)

James M. Latta

[Dismissed as moot; March 24, 2020]

• Failure to impose intermediate sanctions upon revocation

December 20--Friday--a.m.

State v. Brooke Dinkel, No. 113,705 (Saline)

Direct appeal; Rape

Richard Ney

[Reversed/remanded; Rosen; June 12, 2020]

[Reset for argument on May 25, 2021]

• Whether forcible rape requires proof of voluntary act

State v. Anthony Brazzle, No. 116,649 (Riley)

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

Rick Kittel

[Affirmed; Luckert; July 10, 2020]

• Evidence of prior sales irrelevant to intent to distribute
• Insufficient evidence of possession of oxycodone without proof of lack of prescription
• Insufficient evidence that pill was oxycodone

Diversion agreement did not include jury trial waiver

James M. Latta won in State v. Val Williams, No. 120,099 (Kan. App. October 4, 2019), obtaining a reversal of a Graham County criminal threat conviction. Mr. Graham had entered into a diversion agreement with the state, but the state alleged that he violated the terms of the diversion agreement and requested to resume the prosecution. The district court granted the request and convicted Mr. Graham after a bench trial on stipulated facts.

On appeal, Mr. Williams argued that the district court had not obtained a valid waiver of jury trial as part of the diversion agreement or after rescinding the diversion agreement. The COA agreed:

While it is true that this right to a jury trial may be waived if it is done so voluntarily and knowingly, the waiver is to be "strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury." Determining whether this opportunity has been preserved will depend on the particular facts and circumstances of the case. But "a waiver of the right to a jury trial will not be presumed from a silent record." A court will not accept a jury trial waiver unless the defendant, after being advised by the court of his or her right to a jury trial, personally waives that right, either in writing or in open court. Said another way, an appellate court will not infer an implicit waiver of the right to a jury trial from a silent record on appeal.

Here, we find no written waiver by the defendant and the record is silent on whether Williams waived his right to a jury trial. The transcripts show that the district court did not address Williams' right to a jury trial with him at the diversion revocation hearing before convicting him on stipulated facts at that same hearing. Our review of the diversion agreement reveals that as a condition of the agreement, Williams only waived his right to a speedy trial. The agreement does not address his right to a jury trial. 

It is the district court's responsibility to advise a defendant of the nature and extent of the right to a jury trial. The responsibility to inform the defendant of his or her jury trial right rests "squarely with the presiding judge." The advisement of the jury trial right must come from the court itself. A district court's failure to comply with the requirement to advise a defendant of his or her right to a jury trial on the record requires reversal and remand.

Here, the record does not show that the district court ever advised Williams about his right to a jury trial. As a result, Williams' convictions must be reversed. We remand to the district court to either afford Williams his constitutional right to a trial by jury based on stipulated facts or to allow him to execute a valid waiver of a jury trial.

[Update: the state did not file a PR and the mandate issued on November 12, 2019.]

Short list for KSC

Here is a press release announcing that the Supreme Court Nominating Commission nominated the following three persons to fill the vacancy created by the retirement of Justice Johnson: Dennis Depew and Steven Obermeier, who both work for the Kansas Attorney General's Office, and Evelyn Wilson, who is chief judge of the 3rd Judicial District, in Topeka. The Governor has 60 days to appoint one of these three persons.

[Update: here is a blog post reporting the Governor's selection of Chief Judge Evelyn Wilson from this list.]

Statute prohibiting possession of theft detection device remover requires showing of particular tool or device

Jennifer C. Roth won in State v. Justice-Puett, No. 119,697 (Kan. App. September 13, 2019), obtaining reversal of a Riley County possession of a theft-detection device remover conviction. Ms. Justice-Puett was alleged to have removed a security detection device from some cell phone screen protectors. But the state did not provide any evidence of what Ms. Justice-Puett used to do so. Ms. Justice-Puett argued that, as charged, the statute required proof of a tool or device specifically designed to remove theft detection devices. The COA agreed:   

This court concludes that K.S.A. 2018 Supp. 21-5805(c) is plain and unambiguous in prohibiting the possession of any object intentionally designed to allow removal of theft detection devices with the intent to do so without the permission of the merchant or person owning or holding such merchandise. Examples of such an object would be the Q4 and S3 demagnetizing tools possessed by the store employees, or black market versions of them. The intent requirement of the statute differentiates store employees, who legally carry such tools, from shoppers, who would presumably have no business carrying their own demagnetizer in a retail store. Under this plain reading, criminal intent can be inferred from possession. While K.S.A. 2018 Supp. 21-5805(c) may contain a superfluous word, the legislative intent is clear. It is to prohibit would be shoplifters from possessing specifically designed tools of the trade.

Using this interpretation of the statute, the COA held that the state failed to provide evidence that Ms. Justice-Puett possessed any such device and, therefore, reversed the conviction.

[Update: the state did not file a PR and the mandate issued on October 21, 2019.]

Extended probation is a departure

Clayton J. Perkins won in State v. Hambright, No. 115,259 (Kan. August 23, 2019), reversing an extended probation period in a Sedgwick County criminal damage to property prosecution. The district court recognized that the standard probation period for this offense was 24-months, but imposed a 36-month probation period based on a finding that the shorter period would not serve Mr. Hambright's welfare because of extensive restitution obligations. Mr. Hambright argued that the extension was a departure, which could only be imposed upon proper findings, citing State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000). The COA held that Whitesell was no longer controlling due to changes in the law and that the district court had discretion to impose a probation period up to 60 months. The KSC disagreed, nothing that while the Whitesell decision did not extensively analyze why an increased probation term is a departure, it treated it as such and had been treated as mandatory precedent: 

The panel did not discuss what it believed that this court had done to indicate that it was departing from its previous position.

The panel makes some points that would be mildly seductive if one were to be writing on a clean slate. But that is not the case. As Hambright points out, when this court decided Whitesell, K.S.A. 1999 Supp. 21-4611(c) contained the same "recommended duration of probation" language upon which the Court of Appeals relies to interpret the statutory term of 24 months to be advisory, i.e., merely a suggestion. As noted above, Whitesell interpreted the language to manifest an opposite legislative intent, i.e., the stated term of months is intended to be the presumptive duration of probation. In other words, the Hambright panel purports to overrule the Kansas Supreme Court's statutory interpretation. 

Of course, this court could choose to overrule its prior holding in Whitesell, albeit such a tack should not be employed simply to reach a result the current court deems more desirable. "The doctrine of stare decisis recognizes that '"once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised."'" McCullough v. Wilson, 308 Kan. 1025, 1032, 426 P.3d 494 (2018).

The KSC held that circumstances did not justify overruling its precedent in this case, particularly in light of the Legislature's failure to amend the statute after Whitesell was decided:

The foregoing leads us to inquire whether more good than harm will come by departing from the holding in Whitesell. The panel did not expressly address that question, although it inadvertently pointed to the resultant harm from its decision when it string-cited the many Court of Appeals decisions that have followed the precedent. Two decades of reliance on Whitesell by the lower courts counsels against discarding it, unless 16 there is a compelling reason to do so. Given that a sentencing court is still able to impose an extended duration of probation under the Whitesell paradigm and a sentencing court that orders restitution can still invoke K.S.A. 2018 Supp. 21-6608(c)(7) to continue probation until restitution is paid, the compulsion to change the procedure for imposing an extended probation is not readily apparent. In short, the Court of Appeals decision overruling our holding in Whitesell and affirming the district court's departure to a 36-month period of probation is reversed. The matter is remanded to the district court for resentencing on the duration of probation under the correct legal standard.

October-November 2019 KSC Docket

Here are the criminal cases on the KSC docket for October 29-November 1, 2019. 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.

October 29--Tuesday--a.m.

State v. Sherman Jenkins, No. 118,120 (Shawnee)

Direct appeal; First-degree felony murder

Korey A. Kaul

[Affirmed; Beier; January 10, 2020]

• Improper admission of audio recording without proper identification
• "Moving violations" as used in fleeing statute is vague

State v. Amber Burden, No. 116,810 (Sumner)

Direct appeal (petition for review); Possession

Randall L. Hodgkinson

[Affirmed; Luckert; July 17, 2020]

• Incompetence to represent self

October 30--Wednesday--a.m.

State v. Freddie Thomas, No. 116,111 (Barton)

State appeal (petition for review)

Donald E. Anderson, II

[Reversed/remanded; Biles; April 24, 2020]

• Whether self-defense immunity applied

State v. Seth Collins, No. 117,743 (Sedgwick)

State appeal (petition for review)

Patrick H. Dunn

[Reversed/remanded; Biles; April 24, 2020]

• Whether self-defense immunity applied

State v. Kent Lindemuth, No. 116,937 (Shawnee)

Direct appeal (petition for review); Criminal threat

Christopher M. Joseph

[Reversed; per curiam; August 28, 2020]

• Improper denial of workplace defense instruction
• Whether criminal threat conviction based in part on reckless conduct unconstitutional

October 31--Thursday--a.m.

State v. Londro Patterson, No. 118,180 (Johnson)

Direct appeal; First-degree felony murder

Peter T. Maharry

[Affirmed; Biles; January 10, 2020]

• Felony murder statute includes unconstitutional conclusive presumption
• Improper instruction requiring jurors to follow instructions
• Prosecutorial error in jury selection
• Hard-25 sentence is disproportionate applied to young adults

John Balbirnie v. State, No. 115,650 (Franklin)

K.S.A. 60-1507 appeal (petition for review)

Gerald E. Wells

[Reversed/remanded; Luckert; July 24, 2020]

• IAC for failing to introduce 911 call made by witness

State v. Marvin Gray, 117,747 (Sedgwick)

Direct appeal; First-degree premeditated murder

Michelle A. Davis

[Affirmed; Rosen; February 28, 2020]

• First-degree premeditated and second-degree murder are identical offenses
• Improper admission of prior bad act evidence
• Failure to give lesser-included offense instruction

State v. Dale Willis, No. 117,436 (Johnson)

Direct appeal; First-degree murder

Jennifer C. Roth

[Affirmed; Stegall; September 25, 2020]

• Failure to allow defense argument
• Prosecutorial error in closing argument
• Improper admission of law witness opinion testimony
• Improper weighing of aggravating and mitigating factors at sentencing

November 1--Friday--a.m.

State v. Brandon Fowler, No. 116,803 (Sedgwick)

Direct appeal (petition for review); Domestic battery

Caroline M. Zuschek

[Affirmed; Beier; February 14, 2020]

• Improper use of prior misdemeanor for criminal history and to elevate battery to felony

State v. Wesley Smith, No. 115,321 (Sedgwick)

Direct appeal (petition for review); PBT refusal

Patrick H. Dunn

[COA dismissal affirmed; Rosen; January 31, 2020]

• Conviction to crime found unconstitutional should be vacated

Arkansas false imprisonment conviction not a person offense

Kimberly Streit Vogelsberg and Kasper C. Shirer won in State v. Ewing, No. 116,641 (Kan. August 2, 2019), obtaining a new sentencing hearing in a Sedgwick County theft and attempted aggravated burglary prosecution. The particular issue was whether a prior misdemeanor convictions from Arkansas were person offenses under the Kansas Sentencing Guidelines. The KSC applied its precedent in Wetrich (blogged about here), to hold that the Arkansas offense of false imprisonment was not identical or narrower than criminal restraint (a person offense): 

This shows that a person who would not be guilty of criminal restraint in Kansas might be guilty of second-degree false imprisonment in Arkansas. For instance, Kansas only requires probable cause to believe a person will or is about to take property to detain a person, while Arkansas requires actual "knowing concealment" of unpurchased property or the activation of an inventory control device after notice that one is in use. Accordingly, the Kansas crime is not comparable to second-degree false imprisonment in Arkansas because circumstances justifying an act otherwise constituting the Arkansas crime are not identical to or broader than those in Kansas.

The KSC also recognized that while some forms of battery in Arkansas were the same as battery in Kansas, some others were not because they were based on negligent conduct. The KSC applied its precedent in Obregon (blogged about here) to remand for the state to prove the subsection of the Arkansas battery statute involved in the Arkansas prior convictions (if necessary after reclassifying the false imprisonment conviction).

[Update: the state filed a motion for rehearing on August 23, 2019].

[Further update: the KSC denied the state's motion for rehearing and the mandate issued on October 3, 2019].

Discovery of additional prior convictions does not result in illegal sentence

Kai Tate Mann won in State v. Schulze, No. 119,184 (Kan. App. July 26, 2019), obtaining a new sentencing hearing in a Saline County theft prosecution. After being sentenced using criminal history category C, the state discovered some additional prior convictions. The state filed a motion to correct illegal sentence, which the district court granted, resentencing Mr. Schulze using criminal history category B. The COA cited two previous KSC cases and held that the state's failure to challenged the PSI at sentencing precluded it a later challenge regarding the existence (or non-existence) of prior convictions (at least in the same case)

While Lehman may have declined to apply the invited error rule to the requested illegal sentences, it did not negate the earlier distinction made between factual and legal stipulations. The State has not cited any cases suggesting the Kansas Supreme Court is departing from this distinction. Based on [State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015)] and [State v. Weber, 297 Kan. 805, 304 P.3d 1262 (2013)], the State cannot now challenge the factual basis for Schulze's criminal history score because it failed to object to it before the district court.

Because the original sentence was not illegal, the COA remanded with directions to resentence based on the first PSI report.

[Update, the state did not file a PR and the mandate issued on September 3, 2019].

Derivative evidence cannot attenuate initial illegal conduct

Kimberly Streit Vogelsberg and Randall L. Hodgkinson won in State v. Christian, No. 116,133 (Kan. July 26, 2019), obtaining reversal in a Reno County drug prosecution. Officers had arrested Mr. Christian for failure to provide proof of insurance. During the arrest, an officer directed Mr. Christian to put his keys on the roof of the car and asked about an attached silver container. Mr. Christian said that he kept pills in it and consented to a search. The search revealed marijuana. The officer then arrested Mr. Christian for possession of marijuana and searched the car, revealing other drug evidence.

The COA held that the initial seizure was not supported by reasonable suspicion, but held that the evidence should not be suppressed under the attenuation doctrine. On review, the KSC only reached the issue of whether the attenuation doctrine applied. The KSC held that there was temporal proximity because no substantial amount of time passed between the unlawful act and discovery of the evidence. In particular, the KSC rejected the state's claim that intervening circumstances were present:

Christian's arrest did not result from the officer fulfilling his duty to execute a preexisting arrest warrant. Instead, the panel found the officer had discretion to arrest Christian for no proof of insurance. Detaining Christian for the expired tag and arresting him for no proof of insurance were not "ministerial act[s]" consistent with the officer's "'sworn duty to carry out [the] provisions'" of an arrest warrant. Rather, these were discretionary acts within his investigatory role as a law enforcement officer. 

In addition, unlike a valid, preexisting warrant unrelated to the stop, the bases relied on to detain—the expired tag—and arrest Christian—the lack of proof of insurance—arose from and were directly related to the unlawful initial detention. Granted, these facts supported probable cause that crimes had been committed. But all of the officer's actions flowed from and were tainted by the unconstitutional seizure. To rule otherwise would allow derivative evidence to attenuate the initial illegality. But that is not the attenuation doctrine's purpose.

Finally, the KSC held that the officer's actions were flagrant because it could not be reasonable for officers to search a car for evidence of lack of proof of insurance. As a result, the KSC held that the attenuation doctrine could not apply in this case.

Flagrant violations do not attenuate Fourth Amendment violation

Reid T. Nelson won in State v. Sanders, No. 118,640 (Kan. July 26, 2019), affirming Judge Braun's suppression order in a Shawnee County drug possession prosecution. Judge Braun found that the officers' lacked reasonable suspicion to detain Mr. Sanders. The state appealed claiming, among other things, that even if the seizure was illegal, the attenuation doctrine applied to prevent application of the exclusionary rule. The COA agreed that the seizure was illegal, but also that the attenuation doctrine applied based on later discovery of an arrest warrant. The KSC granted review.

On the issue of whether the initial stop was illegal, the KSC agreed with the district court and the COA that the state failed to show reasonable suspicion, despite the officer's perception that Mr. Sanders had fled:

First, as we have discussed, it is not clear that Sanders had spotted the police. In contrast, the driver in Smith admitted that he had. Second, nothing in this record establishes that Sanders was not going about his business at that point. All the record contains about a possible attempt at concealment is Officer Belt's claim that Sanders attempted to hide behind a drainpipe in the alleyway. Often an officer's impression of an individual's actions would be enough to support a reasonable suspicion. Here, however, the district court discounted Officer Belt's testimony finding "too much of the answers to the questions or the scenario posed by the officers appears to be that of filling in the blanks after the fact as opposed to what they did, why they did it at the time."

In addition, the officer's belief, assertion, or hunch is not the critical consideration. Rather, a question of fact arises about whether Sanders intended to conceal himself or was merely standing by the drainpipe for some innocent purpose. But the district court did not specifically address the possibility of concealment and made no factual findings on this point.

Despite the lack of an explicit ruling, the State failed to object or request a clarification. A party must object to inadequate findings of fact or conclusions of law to preserve the issue for appeal. When a party fails to object, an appellate court can presume the district court found all facts necessary to support its judgment. Remand is necessary only where the record does not support such a presumption and the lack of findings precludes meaningful review.

The KSC held that the record supported the district court's findings regarding the officers' credibility and that it would not reweigh them.

On the issue of attenuation, the KSC reviewed the factors set out in Brown v. Illinois, 422 U.S. 590 (1975) to determine whether a particular Fourth Amendment violation is sufficiently attenuated to allow use of evidence discovered after the violation. The KSC agreed that temporal proximity weighed in favor of Mr. Sanders and that a warrant can be an intervening circumstance favoring the state. But because the search took place in this case before discovery of the warrant, the KSC held that the this circumstance was less compelling. Finally, the KSC held that the final factor "purpose and flagrancy of the official misconduct" was perhaps the most critical fact and favored Mr. Sanders:

Here, the district court found: "I still think the whole thing had been set up to be able to make the contact and do those things with [Sanders]. Then they find out about the warrant." And "those things" the district court referred to were questioning Sanders and conducting a frisk. It further found the officers pieced together their justifications after the fact. In other words, the district court found the officers did not have a subjective, good-faith belief that their actions were justified when they initiated the seizure. Instead, they acted on the hope something would turn up. Their actions were purposeful and flagrant misconduct.

As to another flagrancy consideration, the United States Supreme Court found it significant that the officer in Strieff acted legally after he made an unconstitutional seizure. Here, the officers made an unlawful seizure and then conducted two warrantless searches. And the State has failed to establish a valid exception to the warrant requirement for either search. In other words, the officers committed several unconstitutional violations.

In summary, the panel erred in concluding there is "no evidence in the record to suggest that the officers' seizure—albeit overzealous—constitute[d] flagrant misconduct." The third factor weighs in favor of suppression. The district court properly reached that conclusion when it mentioned the attenuation doctrine and said: "[T]hey find out that there's a warrant but my belief, counsel, is that the activity or that the whole issue of seizing the defendant, I have great difficulty with based on the testimony that I've heard." The district court also found the "issue [with] seizing the defendant" was that it was set up. Even if no other Brown factor weighed in favor of suppression, the officers' flagrant misconduct would tip the scale. But all three factors tip that way. The district court did not err in suppressing the evidence. 

The KSC also rejected the state's late attempt to argue for the inevitable discovery doctrine and, therefore, affirmed Judge Braun's suppression order.

Mandate rule does not prevent judge from doing necessary tasks to dispose of a case

Kevin J. Zolotor and Charles A. O'Hara won in State v. Soto, No. 117,059 (Kan. July 26, 2019), obtaining a new hearing in a Sedgwick County murder prosecution. A jury convicted Mr. Soto of premeditated first-degree murder. On appeal, Mr. Soto argued that his hard-50 sentence was unconstitutional under Alleyne v. United States. The KSC vacated the hard-50 sentence and remanded for resentencing (blogged about here). Although initially indicating it would still seek a hard-50 sentence, the state eventually decided to simply settle for a hard-25 sentence.

On remand, the parties learned about a potential Brady violation and newly discovered evidence related to what a witness had said during interviews. After substantial briefing from the parties, the district court held that it was procedurally barred from considering the Brady and newly discovered evidence claims by the mandate rule. After a detailed history of appellate mandates in Kansas, the KSC disagreed:

But this court—as it turns out, in harmony with the United States Supreme Court and the United States Court of Appeals for the Tenth Circuit—has so far resisted the impulse to make the "jurisdictional" generalization about the mandate rule and the broader doctrine of law of the case.

We continue to resist that impulse today. Our synthesis of Kansas precedent on the mandate rule is more nuanced than the State's: The rule applies to prevent district court action on remand only when an issue has already been finally settled by earlier proceedings in a case, including issuance of the appellate mandate. If a final settlement of an issue has occurred, the district judge is not free to expand upon or revise that history. The mandate rule does not, however, prevent a district judge from doing whatever else is necessary to dispose of a case. This means the district judge must not only do as the mandate directs; he or she must also do what is needed to settle other outstanding issues that must be decided to complete district court work on the case. Such issues may have been allocated for decision in the district court in the first place and then untouched by appellate proceedings. They may include issues arising from late-breaking facts.

The KSC also held that the district court had statutory authority to consider Mr. Soto's motion for new trial and so remanded for full consideration of his claims.

Securities fraud prosecution requires actus reus in Kansas

David L. Miller, Richard Ney, and Kurt P. Kerns won in State v. Lundberg and Elzufon, No. 114,897/114,898 (Kan. July 19, 2019) affirming Judge Burgess' dismissal of several counts in a Sedgwick County securities fraud prosecution. The primary issue at the district court an on appeal was whether any acts subject to the Kansas Uniform Securities Act occurred in Kansas. The KSC plurality concluded that they did not:

Here, an offer to sell was not made from Kansas—in other words, it did not originate from Kansas—under any of these formulations of the definition. Instead, Lundberg and Elzufon retained agents in another state and those agents made an offer on behalf of the company. The offers originated with the California intermediaries. Documentation or other communication sent on behalf of Real Development or the LLCs that supported the offers, which as discussed above could be interpreted to constitute an offer, was sent from Minnesota, not Kansas. No act comprising the sales offer process that underlies these charges against Lundberg and Elzufon occurred in Kansas. While we recognize the offers were extended on behalf of the Kansas LLCs, we find no support for an interpretation of the KUSA that would allow a Kansas court to exercise criminal jurisdiction only because the entity purportedly benefiting from the security issuance was organized under Kansas law and has a place of business in Kansas when no act in connection with the sale or offer occurred in Kansas.

Even so, the State, Court of Appeals panel, and amicus all rely on Lintz and Newsome to conclude that Kansas has a sufficient "nexus" to the alleged crimes to invoke Kansas jurisdiction. We are not persuaded by these cases because jurisdiction arises under the KUSA only if an offer or sale occurred in the state—not just because the transaction has some sort of "nexus" to the state.

We also conclude the panel of the Court of Appeals erred in its analysis because it confused concepts of constitutional long-arm jurisdiction with the statutory jurisdiction granted by the KUSA. The panel emphasized Lundberg's and Elzufon's contacts with Kansas, noting Lundberg and Elzufon formed the Kansas LLCs to raise funds from investors to develop property in Wichita; the LLCs have places of business in Kansas; the LLCs conducted substantial operations in Minnesota and Kansas; some securities issued by the LLCs include choice-of-law and forum-selection provisions designating Kansas law and Kansas courts for resolving disputes; Lundberg signed a promissory note (one that did not relate to the charges at issue on appeal) while in Kansas; a Wichita investor purchased a promissory note issued by a Kansas LLC, even though the criminal charges based on this transaction had been dismissed before the case reached the Court of Appeals; Lundberg and Elzufon were in Kansas "on multiple occasions"; one intermediary traveled to Wichita to meet Lundberg and Elzufon; and, one time, information about investments was faxed from a hotel in Wichita. The panel then found these contacts substantial enough that Lundberg and Elzufon should have anticipated being brought into court in Kansas. 

This type of minimum contacts analysis might satisfy constitutional due process requirements, but it fails to address the statutory language limiting Kansas' jurisdiction over criminal acts arising under the KUSA.

As a result, the KSC affirmed Judge Burgess' dismissal of these counts for lack of jurisdiction.

Chief Justice Nuss to retire

Here is a court press release announcing that Chief Justice Nuss will retire on December 17, 2019. He has served on the Kanas Supreme Court since 2002 and as Chief Justice since 2010. This will trigger the nomination process set forth in the Kansas Constitution utilizing the Supreme Court Nominating Commission to forward nominees to the Governor.  This is the second retirement from the Kansas Supreme Court, following Justice Johnson's recent announcement blogged about here.

[Update: here is a blog post reporting the short list from the Nominating Commission for this vacancy.]

[Further update: here is a blog post reporting the Governor's selection of Kenyan (KJ) Wall to fill this vacancy.]

September 2019 KSC Docket

Here are the criminal cases on the KSC docket for September 9-12, 2019. 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 9--Monday--a.m.

State v. Corey Yazell, No. 116,761 (Johnson)

Probation violation appeal (petition for review)

Randall L. Hodgkinson

[COA reversed; Rosen; June 19, 2020]

• Whether probation violation appeal moot

State v. Robert Ward, No. 116,545 (Franklin)

Probation violation appeal (petition for review)

Kasper C. Shirer

[COA reversed; Rosen; June 19, 2020]

• Whether probation violation appeal moot

State v. Jason Hachmeister, No. 114,796 (Shawnee)

Direct appeal; First-degree premeditated murder

Joseph A. Desch

[Affirmed; Stegall; June 5, 2020]

• Improper admission of bad act evidence
• Prosecutorial error in closing argument

State v. Anthony Becker, No. 118,235 (Ford)

Direct appeal; First-degree premeditated murder

Patrick H. Dunn

[Affirmed; McAnany; February 28, 2020]

• Prosecutorial error 
• Failure to give lesser-included offense instructions

September 10--Tuesday--a.m.

State v. Christopher Lyman, No. 114,312 (Geary)

Direct appeal; First-degree felony murder/ child abuse

Richard Ney

[Affirmed; Nuss; January 10, 2020]

• Newly discovered evidence requires new trial
• Brady violation
• Improper admission of medical expert testimony
• Improper admission of prejudicial photographs
• Change of judge improperly denied
• Improper exclusion of medical records review

State v. Samuel Harris, No. 112,883 (Lyon)

Direct appeal (petition for review); Robbery/kidnapping

Reid T. Nelson

[Affirmed; Biles; December 13, 2019]

• Insufficient evidence of kidnapping
• Failure to instruct on criminal restraint as lesser included offense
• Failure to give unanimity instruction
• Failure of trial counsel to file a motion for arrest of judgment

Ziad Khalil-Alsalaami, No. 115,184 (Riley)

K.S.A. 60-1507 appeal (petition for review)

Richard Ney

[Reversed/remanded; per curiam; September 11, 2020]

[Motion for rehearing granted and re-argued on December 18, 2020]

• Failure to object to admission of incriminating statements was IAC

September 11--Wednesday-a.m.

State v. Jeremy Claerhout, No. 115,227 (Johnson)

Direct appeal (petition for review); Second-degree unintentional murder

Meryl Carver-Allmond

[Affirmed; Rosen; December 6, 2019]

• Improper admission of prior diversion agreement
• Improper admission of police officer as crash data retrieval expert
• Failure to instruct on voluntary intoxication

State v. Kyle Chavez-Majors, No. 115,286 (Butler)

Direct appeal (petition for review); Agg battery (DUI)

Rick Kittel

[Affirmed/remanded; Rosen; December 20, 2019]

• Park ranger did not have probable cause to justify warrantless blood draw
• Park ranger did not have exigent circumstances to justify warrantless blood draw

State v. Darrell Broxton, No. 114,675 (Wyandotte)

Direct appeal (petition for review); Second-degree murder

Korey A. Kaul

[Affirmed/vacated; Stegall; April 17, 2020]

• Improper exclusion of document prepared by Florida prosecutor
• Improper classification of prior Florida burglary conviction

September 12--Thursday--a.m.

State v. Jalen Jones, No. 113,044 (Sedgwick)

Direct appeal (petition for review); Attempted first-degree murder

Patrick H. Dunn

[Petition dismissed as improvidently granted; September 17, 2019]

• Failure to instruct on defense of person
• Failure to instruct on lesser-included offense

State v. Ken 'Dum Owens, No. 115,441 (Sedgwick)

Direct appeal (petition for review); Agg robhery/criminal use of weapon

Clayton J. Perkins

[Affimed; Luckert; November 1, 2019]

• Constitutional speedy trial violation

PSI insufficient to determine if out-of-state conviction is person felony

Jennifer C. Roth won in State v. Obregon, No. 117,422 (Kan. June 28, 2019), obtaining a new sentencing hearing in a Geary County drug prosecution.  The KSC applied State v. Wetrich (blogged about here), to hold that a Florida battery conviction may or may not have been comparable to a Kansas person offense. The KSC noted that Florida has two different ways to commit an offense called "battery," one which is like Kansas' and another that is not. In particular, because Florida battery turns on the victim's will, there are some things that would be battery under the Florida statute that would not be a crime in Kansas. The KSC concluded that the record was insufficient to make a final determination:

We should also clarify how this alternative means problem fits within our standard of review for these person-crime classification cases. Typically we describe the classification issue as a question of law, but it is a bit more nuanced because it is the State's burden to prove by a preponderance of the evidence that the defendant committed a crime for which classification is appropriate. And when the crime in question is an out-of-state offense with alternative means—some of which would not be comparable to Kansas person crimes—the State's burden is to establish that the defendant committed a version of the offense supporting the person classification. 

On appeal, the district court's finding that the State met its crime classification burden must be supported by substantial competent evidence to withstand scrutiny. The presentence investigation summary frequently can satisfy the State's burden absent defendant's objection, but more is required when the summary does not indicate which version of the out-of-state offense the defendant committed.  And failing additional proof, the person-crime classification is erroneous as a matter of law. 

Applying this clarified standard of review, we hold the district court erred in classifying Obregon's Florida battery conviction as a person crime. The PSI report is the only item in the record establishing the conviction as part of his criminal history, and it does not indicate what version of the offense he committed. This means on this record there is not substantial competent evidence to support the district court finding that Obregon committed a Florida offense with a comparable Kansas person crime. And because the Florida offense on its face is broader than the Kansas comparator, it should not have been classified as a person offense under Wetrich without supporting evidence.

Remand is necessary so the district court can determine the appropriate classification. At resentencing, the State will have the burden to prove Obregon's criminal history by a preponderance of the evidence. 

This is an important holding because, although sometimes a PSI may be specific regarding alternative means from another state, they often are not. This case provides authority for a procedure in cases where a PSI is not sufficiently clear.

The appeal also involved a claim that the district court improperly applied a six-month enhancement for carrying a firearm to commit the crime. Mr. Obregon had pleaded no contest to the drug offenses, but had not stipulated to any facts related to firearms. The COA held that independent findings by the district court violated Apprendi v. New Jersey. The KSC held that, because special verdicts are not generally appropriate in Kansas, remand for a trial on that fact at this point in the procedural posture of the case was not possible.

Profanity-laced threat from officer renders confession involuntary

Thomas J. Bath won in State v. Guein, No. 115,426 (Kan. June 28, 2019), obtaining a suppression order in a Johnson County distribution prosecution. The charges stemmed from interactions between Lenexa police officers and Mr. Guein in what they believed was a high-drug-crime area. The district court had suppressed several statements made after Mr. Guien was handcuffed but before he was given Miranda warnings. But the district court admitted several statements made before officers handcuffed Mr. Guein and statements made after the Miranda warnings. A majority of the COA held that the district court erred by denying Mr. Guein's motion to suppress the post-Miranda statements, but upheld the admission of the statements made before being handcuffed. The KSC granted both the state's petition for review and Mr. Guein's cross-petition for review.

With regard to the statements made before being handcuffed, the KSC went through a detailed analysis of the factors used to determine whether a reasonable person would feel free to terminate the interrogation and disengage from the encounter. 

We acknowledge Guein's subjective beliefs are not part of the legal analysis to determine if the interrogation is custodial or investigative. But we observe, among other things, he testified he changed from denying—to admitting—to Weber that he had marijuana because his "pockets were empty and [he] was still in a state where [he] wasn't free to go." He further testified he believed Weber was going to search him anyway, and he did not feel he had the option of not answering his questions. He also testified that during the encounter he feared for his physical safety. 

More to the dispositive analytic point, however, after our de novo review we conclude a reasonable person in Guein's position would have held the same beliefs—that he or she was not free to terminate the interrogation and disengage from the encounter. In short, we conclude nearly every factor listed in [State v. Lewis, 299 Kan. 828, 326 P.3d 387 (2014)] leads to the conclusion that the interrogation was custodial. We specifically disagree with any panel suggestion that Guein was not "'subjected to restraints comparable to those associated with a formal arrest.'" So Weber should have given Guein Miranda warnings before questioning him.

Therefore the KSC held that the statements made before being handcuffed should have been suppressed. The KSC also held that the state had failed to show that Mr. Guein voluntarily spoke to officers after the provision of Miranda warnings, particularly in light of profane language used by the officer:

We conclude, like the majority, that taken in context, it would not be unreasonable for a person to have determined Weber made an implied threat that was connected to answering the questions in the way he wanted.

En route to this conclusion, for several reasons we specifically reject the State's related argument that Guein, as a college-educated man who brought a gun with him to a meeting where he intended to sell marijuana, would not have been affected by the use of Weber's language. First, profanity is often used for emphasis and reinforcement. So we agree with the panel majority that its use here "amplified the serious nature of the statements being made, as the use of any particularly strong language, forcefully said, might do." 

Second, we note how context changes the use of language and its connotations. For example, we contrast the title of the popular movie "Whiskey Tango Foxtrot" (and what the military's phonetic "Foxtrot" stood for there, i.e., "What the fuck?"), with an armed police officer's instruction to an arrestee: "Don't fuck around with me and I ain't gonna fuck around with you, okay? You hear me?" and, "Don't fuck with me, okay? You hear me?" And consider the language is directed to an arrestee cuffed from behind and being walked across the parking lot of a closed business to the officer's patrol car at 1:30 a.m.—when eyewitnesses are unlikely. 

. . . .

Here, we have an armed officer during a walk and talk who twice essentially tells an arrestee (handcuffed behind his back) "[d]on't fuck with me"—when I "ask you some questions here in a little bit" because "I know what you're doing out here [a drug deal]" and "I'm telling you right now, I know what's going on, all right?" The arrestee is then immediately placed alone in a patrol car to think about what this meant—for a yet-to-be determined amount of time. His contemplation is followed 10 minutes later by a rapid, dismissive reading of the Miranda warning—including Guein's right to remain silent— that the officer says "I've gotta" give. This sequence indicates that arrestee Guein had better not be silent because that would show he was "fuck[ing] around" and not "be[ing] honest" with Weber who twice told Guein he knew why Guein was there. Right after being Mirandized, Guein agreed to talk. So we agree with the panel majority that Weber's language implied physical violence toward Guein, prompting his later incriminating statement. 

So Mr. Guein's post-Miranda statements are also suppressed.

Justice Johnson to retire

Here is a court press release announcing that Justice Lee Johnson will retire on September 8, 2019. He has served on the Kansas Supreme Court since 2007 and before that on the Kansas Court of Appeals since 2001.This will trigger the nomination process set forth in the Kansas Constitution utilizing the Supreme Court Nominating Commission to forward nominees to the Governor.

[Update: here is a blog post reporting the short list from the Nominating Commission for this vacancy.]

[Further update: here is a blog post reporting the Governor's selection of Chief Judge Evelyn Wilson to fill this vacancy.]

Skip rule isn't a rule

Michelle A. Davis won in State v. Barrett, No. 113,767 (Kan. June 7, 2019), obtaining a new trial in a Riley County reckless second-degree murder prosecution. The primary issue on appeal revolved around the district court's denial of a requested self-defense voluntary manslaughter lesser-included offense instruction. The state initially charged Mr. Barrett with intentional second-degree murder, but the jury found Mr. Barrett guilty of reckless second-degree murder. The COA majority held that the district court should have given the voluntary manslaughter instruction, but held that it was harmless under the "skip rule." The KSC clarified that the "skip rule" is not an automatic bar to reversal but just part of the regular harmless error test:

Originally, we described the skip rule this way: '"When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.''' But in recent years, we clarified that the skip rule is not, in fact, a hard and fast rule. Instead, it is "'simply a logical deduction that may be drawn from jury verdicts in certain cases.'"  Moreover, we cautioned courts to make this deduction only where it "reasonably (as opposed to mechanically) applies."

. . . .

But the skip rule is not a replacement for our longstanding harmlessness tests. And it is not an automatic harmlessness pass. Instead, the logical deduction inherent in the skip rule is one factor, among many, to be 13 considered as part of the applicable harmlessness test. In her dissent, Judge Arnold-Burger traced the history of the skip rule and correctly noted that we have often discussed the rule along with finding the evidence was insufficient to support the disputed instruction. We clarify today that for a jury instruction challenge, the touchstone of reversibility is the applicable harmlessness test. To the extent prior decisions have suggested otherwise, we provide the necessary corrective today. 

Moreover, the skip rule is not amenable to mechanical (or mathematical) application because—as jury nullification and inconsistent verdicts suggest—juries can play a mitigating role in complex cases, such as this. As Judge Arnold-Burger astutely observed, an imperfect self-defense voluntary manslaughter instruction would have served as an alternative to the mental disease or defect defense, and the evidence could have reasonably supported either theory. In other words, on the spectrum from an intentional second-degree murder verdict to a mental disease or defect acquittal, an imperfect self-defense voluntary manslaughter verdict would have fallen somewhere in the middle. In that scenario, the jury could have reasonably concluded that Barrett's mental illness affected his intent but did not negate his culpable mental state entirely.

Applying the proper test, the KSC held that the state failed to prove the error was harmless and reversed for a new trial.

I especially note the note that "as jury nullification and inconsistent verdicts suggest--juries can play a mitigating role . . ."  It is interesting to think about whether an appellate court can discern whether a particular case would show circumstances that might lead to nullification and give effect that observation.

Officer immediately telling person to open their hand is not a voluntary encounter

Randall L. Hodgkinson won in State v. Andrade-Reyes, No. 115,044 (Kan. June 7, 2019), obtaining reversal and remand in a Johnson County drug possession prosecution.  One night, Johnson County bike officers say some people sitting in a car in an apartment complex parking lot and approached them. An officer thought she saw Mr. Andrade-Reyes reach toward the floorboard and that when confronted, thought Mr. Andrade-Reyes was sitting upright with hands tightly clenched. The officer directed Mr. Andrade-Reyes to open his hand and a bag dropped, which was later determined to contain cocaine. 

The district court held that the encounter was voluntary and therefore, denied Mr. Andrade-Reyes' motion to suppress. Alternatively, the district court held that the officer's actions were justified because of "odd" behavior and for "officer safety."

The KSC held that the encounter was not voluntary: 

Here, some factors suggest the officers seized Andrade-Reyes and others do not. As the Court of Appeals noted, the officers did not display a weapon, block the vehicle with the bicycles, activate the bicycles' emergency lights, or act in a threatening manner. These factors were weighty enough in the district court's and the Court of Appeals panel's assessment for both courts to conclude the encounter was voluntary. 

On the other hand, the officers approached the vehicle late at night in a dark area of the parking lot. The car was legally parked. There were no bystanders. Officer Larson did not introduce herself or state her reason for approaching the vehicle. Nor did she indicate Andrade-Reyes was free to leave or to refuse to answer questions. Instead, with the beam of her flashlight shining into the car, she immediately began asking Andrade-Reyes what was in his hands. Significantly, she did not take Andrade-Reyes' silence or lack of a physical response as an indication he did not wish to interact with the officers. Instead, according to the district court's findings, her voice became "nervous" and she persisted in asking him what was in his hands until he opened them. Although we do not have the body camera footage available to us, at the suppression hearing, the State seemingly quoted from it, stating that Officer Larson asked: "What's in your hand? What's in your hand? Open your hand." In other words, Officer Larson commanded or ordered Andrade-Reyes to open his hand. Further, although the officers did not activate their emergency lights or park their bicycles behind the vehicle, they stood near the doors of the car—one officer on each side. Andrade-Reyes, as a passenger, had no control over moving the car itself. These factors are much like—and even stronger indications of a seizure than—those in [State v. Williams, 297 Kan. 370, 300 P.3d 1072 (2013)] where we held a detention had occurred. 

The KSC held that the fact that the officers in this case did not activate their emergency lights was not weighty late at night upon immediate police questioning in an isolated location. In particular, the KSC held that Mr. Andrade-Reyes' reaction (or lack thereof) showed that the encounter was not voluntary:

Here, however, Andrade-Reyes did not respond. Officer Larson testified that when she asked Andrade-Reyes what was in his hands "[h]e just stayed there with his hands clenched just looking at me and wouldn't move." Rather than accepting that he had the right not to consent to a continuation of the encounter, she repeatedly asked her question and eventually issued a command. Even though Officer Larson spoke in a normal voice and was not loud, rude, or intimidating, her demeanor does not negate her persistence or her command to Andrade-Reyes to open his hands.

The KSC also held that the officer's lacked reasonable suspicion to detain Mr. Andrade-Reyes:

Similarly, Officer Larson and Officer Gross did not testify to knowing of any recent criminal activity and the vehicle was legally parked. The fact the encounter occurred late at night in a high-crime area is not indicative of criminal activity, nor is Andrade-Reyes appearing startled and reaching toward the floorboard. Under the totality of the circumstances, the officers did not have reasonable suspicion to detain Andrade-Reyes. He thus was subject to an unlawful seizure that tainted the subsequent discovery of the white substance. Accordingly, the evidence should have been suppressed unless another basis exists for allowing the questioning and the search.

Finally, the KSC rejected any possible claim of generalized officer safety as a basis for detention in this case (if it could be a justification in any case absent reasonable suspicion of a crime). As a result, the KSC reversed and remanded with directions to suppress the drug evidence.

Church sacristy is not a building or other structure for burglary

Patrick H. Dunn won in State v. Glover, No. 120,098 (Kan. App. June 7, 2019), affirming Judge Mott's dismissal of Sumner County burglary charges. The state alleged that Mr. Glover entered an unlocked Catholic church and entered the locked sacristy where he stole items from a locked cabinet. The sacristy is a room that is normally locked and located within the church, while the church itself was unlocked and open to the public.

Judge Mott dismissed the charges finding that the state did not prove that Mr. Glover entered the building without authorization. The state argued that Mr. Glover's entry in the sacristy constituted entry into a building or other structure that met the requirements of the burglary statute. After reviewing extensive case history in relation to the definition of "building or other structure," the COA agreed with Judge Mott:

First, even if we rely on previous caselaw focusing on whether someone is leasing a subpart of a building Glover could not be guilty of a burglary. Like the storeroom in [State v. Hall, 270 Kan. 194, 14 P.3d 404 (2000)], the sacristy was only owned by the church. It was not leased out to another individual or entity. See 270 Kan. at 202. Glover was authorized to enter the church and the sacristy was solely owned by the church. 

Second, we find that the plain language of the statute requires an unauthorized entry into a "building . . . or other structure." K.S.A. 2018 Supp. 21-5807(a)(2). A room is not a building or structure under a common understanding of either word. See Webster's New World College Dictionary 1262 (5th ed. 2014) ("room" is "a space within a building enclosed by walls or separated from other similar spaces by walls or partitions"); Webster's New World College Dictionary 1440 (5th ed. 2014) ("structure" is "something built or constructed, as a building or dam"); Webster's New World College Dictionary 195 (5th ed. 2014) ("building" is "anything that is built with walls and a roof, as a house or factory; structure"). The sacristy was nothing more than a room within the church building. Whether a room inside a building is locked does not impact whether entry into the building or structure was authorized. Moreover, the State's interpretation would lead to unintended results. If the defendant entered a business without authorization and then entered a locked storage closet, the defendant would be guilty of two burglaries under the State's interpretation. This is not consistent with the plain language of the statute. 

[Update: the state did not file a PR and the mandate issued on July 15, 2019].

Improper mistrial after prosecution witness will not take oath does not allow second trial

Mark J. Dinkel won in In re Bowman, No. 119,270 (Kan. May 17, 2019), obtaining a writ of habeas corpus for a client in a Saline County rape and aggravated criminal sodomy prosecution. This case involved a first trial which ended in a mistrial when the alleged victim, a young child, would not take the oath required for witnesses. Prior to a second trial, Mr. Bowman sought relief from the KSC, claiming that a second trial would violate the Double Jeopardy Clause and K.S.A. 21-5110.

The KSC detailed the efforts in the first trial to get the child witness to take the oath and the district court's conclusion that she was not likely to do so. The state indicated that without the witness' testimony it could not continue with the trial; it had already made several statements during its opening statement referring to the anticipated testimony and other witnesses had testified regarding her out-of-court statements, which would be rendered inadmissible hearsay. Noting that jeopardy had attached, defense counsel asked that the matter be dismissed. The state asked for a mistrial, which after extensive argument, the district court granted. The district court granted a mistrial because it believed it was "physically impossible to proceed with the trial in conformity with law" and because "[p]rejudical conduct in the courtroom, [made] it impossible to proceed with the trial without injustice to either the defendant or the prosecution." The latter stemmed from the district court's accidentally leaving on a microphone so that the child witness could hear the parties arguments. As such, the district court held that manifest necessity required a mistrial and therefore, that retrial would not violate the Double Jeopardy Clause.

First, the KSC acknowledged that an original action was appropriate to bring the double jeopardy (constitutional or statutory) claim to the appellate court because part of double jeopardy protection under either \s to not have to go through a second trial. As a result, a later appeal would not be a complete remedy.

On the merits, the KSC reviewed K.S.A. 22-3423, the mistrial statute in Kansas, and concluded that the child witness' refusal to take the oath did not render it "physically impossible" to proceed with trial:

Giving the common words in the phrase "physically impossible" their ordinary meaning, failure of even a critical portion of the State's proof because of a recalcitrant witness of any age and for any reason does not make trial a physical impossibility. The child's refusal to take the oath certainly made it more difficult for the State to obtain a conviction on the rape and sodomy counts in the same way it is harder for any lawyer to obtain a desired result when evidence heralded in earlier testimony or the lawyer's own opening statement fails to materialize.

In addition, the circumstances of Bowman's case also did not meet the subsection (1)(a) requirement that any continuation of the trial would not be in conformity with the law. Although the judge was correct that the child's inability to testify meant that at least some of the testimony he had admitted earlier over defense counsel's objection could not be considered by the jury on any count, jurors could have been instructed to disregard it. And jurors, as defense counsel observed, are routinely instructed that the statements of counsel, such as those in the prosecutor's opening, are not evidence in and of themselves.  This means that it was within the judge's power to neutralize the ill effects to either party from the collapse of the prosecutor's trial strategy.

Likewise, the KSC majority held that the district court's accidentally leaving on its microphone did not make it "impossible to proceed with the trial without injustice to either the defendant or the prosecution":

The first problem with this argument is that the district judge's expressed concern, on the record before us, qualifies as mere conjecture. No sworn testimony or other evidence exists to demonstrate that the child heard or understood any of what was said during the bench conference or that whatever she heard or understood caused her to leave the witness stand or rebuff the court reporter's second series of efforts to administer the oath.

The second problem is that, even if we assume that the child accidentally overheard the bench conference and did understand counsel's arguments to be prompted by her behavior and, as a result, refused again to take the oath, the State faces the same difficulty in relying on subsection (1)(c) that it faced in relying on subsection (1)(a). It simply was not "impossible," as that common word is ordinarily understood, to proceed with the trial "without injustice to either the defendant or the prosecution."

Continuing the trial would not have led to injustice to Bowman. We must remember that Bowman opposed the mistrial; he wanted to continue and take his chances on the proof the State was ultimately able to muster. Rather than starting over with a new jury, Bowman wanted the judge to attempt to cure any prejudice arising from the earlier admission of hearsay testimony and the prosecutor's opening statement. Had the judge made reasonable efforts along those lines, and Bowman been convicted, the defense could not have complained successfully on appeal that the hearsay or opening statement were so harmful that Bowman deserved a reversal. Bowman and his counsel would have invited any error in failing to grant a mistrial. They would be stuck with the consequences of the risk they embraced. 

The KSC majority held that the trial was terminated without the consent of the defendant and did not fall within any exception to statutory double jeopardy protections found in K.S.A. 21-5110. The KSC rejected the state's claim that it was impossible to proceed to a jury verdict and, therefore, granted the writ of habeas corpus and ordered that Mr. Bowman be release and discharged from further liability.