Wednesday, December 18, 2019

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.]

Tuesday, December 17, 2019

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.]

Monday, December 16, 2019

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
  • 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

Wednesday, December 11, 2019

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.]