Friday, May 31, 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.

Friday, May 24, 2019

Inattentive driving cannot support finding of reckless conduct

Randall L. Hodgkinson won in State v. Warnke, No. 118,738 (Kan. App. May 3, 2019), obtaining reversals in a Dickinson County aggravated battery and criminal damage to property prosecution. The charges stemmed from an accident on a rural county highway where Ms. Warnke's car collided with a horse-drawn buggy being driven by two teenage boys. The boys were thrown from buggy and injured and one of the horses died. The state charged and a jury convicted Ms. Warnke of reckless aggravated battery and criminal damage to property. Carefully reviewing the evidence in a light most favorable to the state, including times of different calls and text messages, the COA agreed with Ms. Warnke's claim that the state's evidence may have shown negligence, but could not support findings that Ms. Warnke was texting at the time of the collision. The COA drew upon those undisputed facts to conclude that the record contained insufficient evidence of reckless conduct:

In Warnke's case, none of the facts that supported a vehicular homicide conviction in these other cases—for which the standard for a conviction is lower—are found here. Warnke was a mother and paraprofessional driving home after working at the school. She was not a professional driver. She was driving a compact Nissan automobile, not a loaded semitrailer truck. She was not speeding. She did not accelerate as she approached the point of impact. There were no flashing lights or warning signs to alert her to the danger 21 ahead. No one on the vehicle ahead was waving for her to go around them. She was not impaired by drugs or alcohol. 

The district court found Warnke guilty of the traffic infraction of following too closely, but that was premised on the collision itself. The court also found her guilty of texting while driving, but that was premised on her reading a text from Christina while Warnke was sitting behind the wheel of her car with the engine running at the stop sign before turning onto K-43. There is no evidence that before the collision Warnke committed any traffic infraction as she proceeded down highway K-43 other than the breach of her common-law duty to keep a proper lookout of the road ahead. Speaking on a cell phone while driving is not a violation of our traffic laws. There is no evidence of conduct that constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Besides, to convict under our reckless aggravated battery statute the defendant must consciously disregard "a substantial and unjustifiable risk that circumstances exist or that a result will follow." K.S.A. 2018 Supp. 21-5202(j). We do not conclude that a motorist traveling on a straight, flat, dry, rural highway with little traffic during daylight hours with unobstructed visibility ahead disregards a substantial risk that she will collide with some vehicle ahead if she places a cell phone call. The evidence does not support the "conscious disregard" element of the statute. Obviously, this is not to say that Warnke was without fault. We can speculate that she probably allowed her mind to wander as she spoke to Christina on the phone. She may have been distracted while ending the call. She clearly was at fault applying the standard of ordinary negligence. She failed to maintain a proper lookout ahead. But her misconduct did not reach the high threshold for a felony criminal conviction for reckless aggravated battery.

The COA similarly concluded that Ms. Warnke's conduct could not support a finding for knowing criminal damage to property. As a result, it reversed that conviction as well.

[Update: the state did not file a PR and the mandate issued on June 10, 2019.]

Friday, May 10, 2019

Failure to give self-defense instruction requires new trial

Carol Longenecker Schmidt and Kasper C. Schirer won in State v. Qualls, No. 115,648 (Kan. April 19, 2019), obtaining a new trial in a Shawnee County first-degree murder prosecution stemming from a dispute over a pool game. This was Mr. Qualls' second appeal, his first conviction having been reversed and remanded for new trial for failure to give a lesser-included offense instruction (blogged about here). At the retrial, Mr. Qualls requested a self-defense instruction, citing testimony from Mr. Qualls that he thought he saw the decedent reaching for a weapon, but the district court refused. The KSC reviewed the record and, viewing the light in a most favorable light to Mr. Qualls, held that sufficient evidence would have supported subjective and objectively reasonable belief that use of deadly force was necessary:

This testimony describes a situation in which actions taken in self-defense could be justified: Beier hit Qualls twice; Qualls had been taken down in a choke-hold by someone else; Beier was shouting expletives at Qualls and was warning him to get out or something bad could happen; and Qualls saw Beier reach into his pants in a gesture suggesting he was reaching for a gun. Qualls found himself in a chaotic, threatening situation. Similar testimony in the first trial led this court to hold that the record, when viewed in the light most favorable to Qualls, was sufficient to let the jury “decide if Qualls had an unreasonable but honest belief that the use of deadly force was necessary to protect against Beier's alleged imminent use of unlawful force.”

The question in the present issue is whether the jury should have been allowed to consider whether he had a reasonable belief that deadly force was necessary. If Qualls reasonably believed Beier was threatening his life, self-defense would have been appropriate; if Qualls was responding to some other cue, then self-defense would not have been a legitimate defense.

Qualls' testimony sufficed to make the self-defense instruction factually appropriate. 

The KSC held that the failure to give the requested instruction was not harmless and therefore reversed for another new trial.

Just as an aside, I think it is difficult to imagine a case where an appellate court, applying the correct standard of review, could find that failure to give a requested affirmative defense instruction was error but harmless error.  Assuming that such an error is a constitutional error, the state would have to show there is no reasonable possibility that a jury could have formed a reasonable doubt regarding the affirmative defense. If there is evidence upon which a jury could make that determination (the standard of review for getting the instruction), in what situation could an appellate court hold that erroneous failure to give that instruction was harmless?

[Update: here is a WIBW article noting that after this appeal, Mr. Qualls entered into a plea agreement to intentional second-degree murder and a resultant 176-month prison sentence.]

Saturday, May 04, 2019

Too much to ask the jury to not smell the skunk

Rick Kittel won in State v. Phillips, No. 118, 314 (Kan. App. April 12, 2019)(unpublished) reversing Ellis County convictions for criminal possession of a firearm, possession of drug paraphernalia, and possession of marijuana.

Police executed a search warrant on a house looking for drugs and drug paraphernalia. They believed that one of the two bedrooms in the house belonged to Mr. Phillips because a few items related to him (an ID card from another state, a job application, and mail) were found in the bedroom. Police found marijuana and paraphernalia in the home and found a handgun and ammunition in the bedroom they associated with Mr. Phillips. He could not legally possess a firearm because he was on probation for a felony conviction.

Prior to trial, Mr. Phillips asked that the state not be allowed to mention to the jury that he was a convicted felon and in return he would stipulate that he could not legally be in possession of a firearm. The district court concluded that it would inform the jury that Mr. Phillips was a convicted felon, but would not reveal the specifics of that prior conviction. The pretrial order of the district court read: “Defendant stipulated Defendant could not possess a firearm. State will not introduce evidence of Defendant’s prior conviction unless defendant ‘opens the door’”.

This planned course of action almost immediately went awry at jury trial when, in its introductory instructions, the district court informed the jury “the defendant within ten years preceding such possession [of a firearm] has been convicted of unlawful possession of controlled substance[.]” Mr. Phillips objected to this effective violation of the pretrial order and requested a mistrial. The district court denied the request for mistrial and tried to remedy the situation by ordering the jury to disregard the previously given instruction. The district court then gave another instruction to the jury, omitting the language that referred to Mr. Phillips’ prior conviction of possession of a controlled substance. The jury later convicted on all three counts.

On appeal, the COA undertook a two-part analysis: (1) determine if there was a fundamental failure in the proceedings, and (2) determine if it was possible to continue the trial without injustice. The COA first found that “by informing the jury that Phillips had a prior conviction for marijuana possession the district court defeated the purpose of the stipulation.” Even though this was a mistake on the part of the district court, it created an undue risk of prejudice that caused a fundamental failure in the proceedings. On the second part of the two-part analysis the COA stated:

[Phillips] argues that the degree of prejudice was too great to be cured. He notes that “[c]olorful analogies” are used to describe this problem. “[O]ne ‘cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’.” We agree.

Considering the particular facts of the case, the COA determined that the degree of prejudice presented by the district court’s error was exceptionally high. As a result, the convictions were reversed and the case remanded for a new trial.

[Update: the state did not file a PR and the mandate was issued on June 13, 2019].

Murdock revisited

Patrick H. Dunn and Samuel Schirer won in State v. Murdock, No. 117,315 (April 19, 2019), reversing the "correction" Mr. Murdock's sentence in a Shawnee County prosecution. As blogged about here, Mr. Murdock won in a previous appeal establishing that his pre-guidelines offenses should be classified as nonperson felonies. Pursuant to this decision, the district court resentenced Mr. Murdock using criminal history category C instead of criminal history category A. Then, less than a year after the KSC's final order in Murdock I, the KSC reversed it in State v. Keel, No. 106,096 (Kan. 2015). The state then filed a motion to correct illegal sentence in Mr. Murdock's case, arguing that the sentence imposed was now illegal under Keel. The district court agreed and resentenced Mr. Murdock using criminal history category A.

The KSC reversed and remanded to reinstate the sentence imposed after the first appeal. It did so by clarifying what it means for a sentence to be illegal under K.S.A. 22-3504:

Indeed, our longstanding definition of an "illegal sentence" suggests a sentence that was legal at the time it was imposed cannot later become illegal when the law changes. For example, and most relevant here, we have often held an illegal sentence includes one "that does not conform to the statutory provisions, either in character or the term of the punishment authorized." According to the State, an illegal sentence would also include one that does not conform to a future, unwritten, unknown statute at sentencing (and at resentencing, and at the next resentencing, and so on, as long as applicable statutes are amended). This view stretches the definition of an illegal sentence beyond its reasonable bounds and provides no logical endpoint. On the contrary, our existing definition implicitly recognizes that a district court judge must sentence a defendant according to the law in effect at the time.

Today, we clearly state what we gestured toward in Lee: the legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time—the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law. 

Here, we pause to note that today's holding does not disturb our longstanding rule that in a direct appeal, a defendant will receive the benefit of any change in the law that occurs while the direct appeal is pending. To the extent our prior caselaw confused the procedural mechanism of a direct appeal with a motion to correct an illegal sentence, we now clarify the distinction. Put simply, a party may seek and obtain the benefit of a change in the law during the pendency of a direct appeal, but a party moving to correct an illegal sentence is stuck with the law in effect at the time the sentence was pronounced. 

 Because the KSC held that the sentence imposed after its first decision was clearly legal at the time, it held that the district court erred by imposed a "corrected" sentence after the law changed in Keel.

Wednesday, May 01, 2019

Judge Warner

Here is the Governor's press release announcing that she has appointed Sarah Warner, a Lenexa attorney to fill the vacancy created by the retirement of Judge Patrick McAnany. Warner, an Ave Maria School of Law graduate, practices law in Lawrence with the Thompson Warner firm and clerked for Chief Justice Robert E. Davis of the Kansas Supreme Court.

[Update: here is a court press release indicating that Judge Warner will be sworn in on August 8, 2019.]