Running wants and warrants during welfare check is flagrantly illegal conduct

Rick Kittel won in State v. Ellis, No. 120,046 (Kan. August 7, 2020), obtaining reversal and remand in a Lyon County drug possession prosecution. Police received a report from a convenience store that a woman had been in a restroom for an extended time. An officer knocked on the bathroom door and the woman inside said she was okay, but having stomach problems. When Ms. Ellis came out of the bathroom, she gave her drivers license to the officer, who gave it to dispatch for wants and warrants. While interacting with Ms. Ellis, the officer saw her hands shaking and asked her if she had been using drugs, which she denied. The officer asked to search her, but Ms. Ellis refused but admitted that she had drugs in her person. The officer learned that Ms. Ellis had a probation violation warrant, arrested Ms. Ellis, searched her wallet, and found drugs and paraphernalia.

On appeal, the state argued that the attenuation doctrine should be applied to excuse any improper search or seizure. The COA held that the search exceeded the scope of a proper welfare check and ordered suppression.

The KSC held that the officer's initial contact with Ms. Ellis was lawful as a welfare check and that the officer could legally obtain a drivers' license. But the KSC went on to hold that the officer exceeded the scope of a proper welfare check by retaining the drivers' license and running a wants and warrants check:

Here, Kent had no reasonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Kent testified that he saw no evidence of criminal activity and that Ellis assured him that she was not in need of assistance. Kent nevertheless retained her license and placed a call to dispatch for the express purpose of extending his investigation into whether she had any outstanding warrants. He directed her to go outside and call for someone to pick her up, and he interrogated her about drug use and told her he wanted to search her belongings. All of these activities broke the chain of lawful conduct that began when he responded to a welfare call.

The KSC recognized that at first blush, it appeared that the attenuation doctrine may have relieved the state from the exclusionary rule. But upon closer review, it held that it did not apply:

The problem for the State in the present case is that Kent was already engaging in an unconstitutional criminal investigation of Ellis before he received information about the possible warrant. He continued to exercise control over her, escorting her (or, in the words of the district court, "cajol[ing] her") outside the store and directing her to call for her ride, before the warrant was confirmed. Under the State's theory, police could approach random people on the street, demand their identification cards, and run warrant checks on them. If no warrant came up, then the detainee would be released—no harm, no foul. If a warrant came up, then the warrant would attenuate the unconstitutional stop and justify arrests and searches incident thereto. The police could routinely carry out criminal investigatory detentions of all citizens without risking suppression of discovered evidence.

The KSC also held that retaining the license and running wants and warrants is so far outside of the purpose of the welfare check that the officer's behavior was flagrant. As a result, the KSC refused to apply the attenuation doctrine and ordered suppression.

Judge has discretion to run multiple sentences concurrently

James M. Latta won in State v. Dunham, No. 121,081 (Kan. App. July 31, 2020), obtaining a new sentencing hearing in a a Saline County drug prosecution. Mr. Dunham pleaded guilty to charges involving conduct occurring why he was on probation from other charges.  The district court ran the sentences for the new charges consecutively and held that it did not have discretion to run them concurrently. After carefully reviewing the statutory history of the relevant sentencing statutes, the COA held this was erroneous:

Dunham had multiple sentences imposed on different cases on the same day. In the case of multiple sentences, [State v. Edwards, 252 Kan. 860, 852 P.2d 98 (1993)] guides our decision. Edwards informs us that the court has complete discretion under K.S.A. 1992 Supp. 21-4608(1) (now codified at K.S.A. 2019 Supp. 21-6606[a]) to run the sentences either consecutively or concurrently. That is, K.S.A. 2019 Supp. 21-6606(c), (d), and (e) play no role in multiple sentencing cases unless the sentencing court fails to address whether the multiple sentences run concurrently or consecutively. Edwards' interpretation of the previous version of K.S.A. 2019 Supp. 21-6606(a) thus allows a court flexibility—regardless of the sentence ordered in any individual case (such as consecutive prison terms included in the sentence for Case 3)—to run the sentences in multiple cases concurrently or consecutively as the court finds appropriate.

Because Dunham was sentenced for multiple crimes on the same day, the court erred in finding that it was required to run the sentences consecutively. We note Edwards is still good law and we are duty bound to follow Supreme Court precedent unless there is some indication that the Kansas Supreme Court is departing from its previous position. As in Edwards, this case must be remanded to allow the district court to exercise its discretion in determining whether Dunham's sentences in Cases 4 and 5 should run concurrently or consecutively with each other and with Case 3.

[Update: the state did not file a PR and the mandate issued on September 8, 2020.]

Improper instruction and prosecutorial error require new trial

Michelle A. Davis won in State v. Thomas, No. 115,990 (Kan. July 24, 2020), obtaining a new trial in a Chautauqua County aggravated battery and child abuse prosecution. There were separate claims that the instructions were improper and that the prosecutor committed error in closing argument.

The parties agreed that the jury instructions related to aggravated battery were legally incorrect. Pursuant to State v. Hobbs, 201 Kan. 203, 340 P.3d 1179 (2015), the aggravated battery instruction is required to show that the defendant "knowingly" acted: that he or she "was aware the conduct was reasonably certain to cause the result." Instead, the district court instructed the jury that "knowingly" only meant that the defendant intended to engage in the conduct which resulted in great bodily harm, not that he intended to cause the precise harm. As a result, the KSC held that the instruction was not legally appropriate. 

Mr. Thomas also claimed that the prosecutor erred by showing the jury a photograph of the child and telling the jury to acquit if they thought it was okay to do that to a child. The KSC agreed that such arguments were not proper:

We agree that read in isolation the prosecutor's arguments clearly encouraged the jury to convict based on an assessment of whether the jury thought Thomas' actions were okay, not on whether the State had met its burden of proving the elements. But we disagree with the panel's conclusion that the meaning changed when read in context of other statements. The prosecutor made no attempt to relate the statement to the cruel and inhuman punishment element or any other element. And the prosecutor shifted the jurors' attention away from the case to how they felt about whether "that's okay to do to your child." (Emphasis added.) The last two words invited jurors to consider the crime in the context of families or community, either of which is error.

When considering the impact of the prosecutor's improper argument, the KSC noted that "the prosecutor repeated the argument, inviting the jury to make its own emotional assessment about what was okay." The KSC considered the cumulative effect of the two errors:

But the instruction given here allowed the jury to find Thomas guilty if it determined he intended to engage in the conduct. Thus, we cannot be sure the jury based its verdict on the requisite level of culpability. We recognize serious credibility issues surround Thomas' defense that the house did not consistently have hot water, and those credibility issues might have prevented us from determining clear error occurred. But given that no direct evidence disputed Thomas' testimony about the lack of hot water, applying the constitutional harmless error standard, we cannot say beyond a reasonable doubt that the verdict was not affected. The jurors could have based the verdict on a lower level of culpability than one requiring they find that Thomas knew it was reasonably likely great bodily injury or disfigurement would occur. 

The prosecutor's erroneous statement increases this uncertainty because it encouraged the jury to convict if it concluded Thomas' actions, even if merely negligent, were not "okay." This statement invited consideration of emotion rather than a reasoned and dispassionate consideration of the facts and the law as applied to those facts—in particular, as to whether Thomas had knowingly caused the harm. 

As a result, the KSC reversed the aggravated battery conviction and remanded for a new trial. 

Finally, the KSC agreed with Mr. Thomas' argument that a Virginia conviction for assault and battery was broader than any Kansas person offense and therefore under Wetrich (blogged about here), could not be classified as a person offense in criminal history. 

Failure to introduce exculpatory 911 call was ineffective assistance of counsel

Gerald E. Wells won in Balbirnie v. State, No. 115,650 (Kan. July 24, 2020), obtaining a new trial in a Franklin County second-degree murder prosecution. After the COA affirmed the conviction on direct appeal, Mr. Balbirnie claimed IAC in a motion pursuant to K.S.A. 60-1507. In particular, Mr. Balbirnie claimed that his appointed trial counsel had failed to admit a 911 recording where the caller identified someone other than him as the killer.

The COA had held that Mr. Balbirnie showed defective performance but, in light of eyewitness testimony and Mr. Balbirnie's recorded statements, concluded that he failed to establish prejudice. The KSC disagreed with the latter finding:

As to the first point, the evaluation of veracity would likely be influenced by the forensic evidence. The State's forensic pathologist testified that after the fatal wound was inflicted, Nicholson would have had at least a few seconds of awareness before experiencing a gradual cessation of all functions. The fatal wound would have caused death within a few minutes and usually would cause a person to collapse "pretty rapidly." A jury could view the call as significant evidence of present sense impressions about the sequence of events and who inflicted stab wounds, especially since Nicholson collapsed near Brown.

The call undermines the credibility of Brown, Wallace, and Ellsmore, as Wallace denied using a weapon, and Brown and Ellsmore both testified they did not see Wallace with a knife.

The call also discredits the testimony of Brown about Balbirnie's admission. Brown testified that after the police had arrived, Balbirnie said, "'I stabbed the dude in the neck.'" Neither the call nor any officer's testimony confirms that admission.

. . . .

What is more, many of Balbirnie's statements while alone in the interview room, at least as described in the record, are ambiguous and others are denials of guilt. Defense counsel pointed to the interviews in closing, arguing that when Balbirnie was left alone in the room, he repeatedly said, "'I just didn't do anything wrong.'" A detective testified that Balbirnie never confessed. In fact, Balbirnie consistently told the detectives that he was merely a witness and had nothing to do with the stabbing. Finally, during the 60-1507 evidentiary hearing, Balbirnie's trial counsel testified Balbirnie has consistently maintained his innocence. The evidence is not as one-sided as the State would suggest. 

Because of what the KSC described as "many credibility and evidentiary issues,"  it concluded that "the result of Balbirnie's trial is unreliable because of a prejudicial breakdown in the adversarial process." The KSC reversed the conviction and remanded for a new trial.

Residual clause of criminal possession of weapon statute is vague

Kimberly Streit Vogelsberg, Clayton J. Perkins, and Kasper C. Shirer won in State v. Christopher Harris, No.116,515 (Kan. July 17, 2020), reversing a Sedgwick County criminal possession of a weapon conviction. The issue in the case involved the "residual" clause of K.S.A. 2019 Supp. 21-6304 making it illegal for a felon to possess "any other dangerous or deadly cutting instrument of like character." Mr. Harris was convicted for possessing a pocketknife. The KSC majority held that this residual clause did not provide explicit and objective standards of enforcement, it was facially unconstitutionally. On its way to its conclusion, the KSC majority observed that there are actually different analyses that can be relevant:

The challenged statute must clear two distinct—albeit relatively low—hurdles. One hurdle is grounded in the due process requirements of the Fourteenth Amendment. The other in the doctrine of separation of powers emanating from both our federal and state constitutions. On the one hand, a "statute that 'either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application' violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness." On the other hand, the law must "provide explicit standards for those who apply them" or it will amount to an "impermissibl[e] delegat[ion]" of "basic policy matters" by the legislative branch to "policemen, judges, and juries for resolution on an ad hoc and subjective basis." Finally, the need to prevent "arbitrary and discriminatory enforcement is heightened for criminal statutes because criminal violations result in the loss of personal liberty."

The KSC majority noted that many vagueness challenges are brought with respect to the first of these hurdles. But it focused the question in this case on the second:

Today's case gives us a textbook example of the same kind of enforcement guesswork that can result from a vague law. The statute makes it a crime for Harris to possess a weapon. A weapon "means a firearm or . . . a 11 dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character." It is undisputed that Harris did not possess a firearm, a dagger, a dirk, a switchblade, a stiletto, or a straight-edged razor. In these circumstances, enforcement officials must ask, what exactly is a dangerous cutting instrument of like character? We are unable to discern a sufficiently objective standard of enforcement in this language. Instead, we are left with the subjective judgment of the enforcement agencies and actors. A pair of scissors? Maybe. A safety razor blade? Perhaps. A box cutter? Probably, but would that decision be driven by an objective rule or a historically contingent fear of box cutters? 

The KSC majority explained the dangers associated with vague laws in stark and dystopian terms:

It is the very overbreadth of such laws that renders them impermissibly vague. It is not necessarily because they are ambiguous on their face—an overbroad law can be very clear. The problem, in fact, may be amplified by clarity. If a law "makes everyone" a violator, then "prosecutors and the police [will] both define the law on the street and decide who has violated it." Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511 (2001). This is a world in which "almost anyone can be arrested for something." Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (Gorsuch, J., concurring in part and dissenting in part).

Even outside of many of these hypotheticals, the KSC majority held that the circumstances of the instant case showed arbitrary enforcement:

And we do not have to speculate on the answer to this question. Here we have a concrete example of government officials expressing and operating under diametrically opposed, yet plausible, enforcement standards—a sure sign of subjectivity in action. The State of Kansas, through its prosecutors, believes (and has acted on its belief) that K.S.A. 2019 Supp. 21-6304 is meant to be enforced against Harris and his pocketknife. But the State of Kansas has also, through its Department of Corrections, published a handbook and advised parolees (including Harris) that K.S.A. 2019 Supp. 21-6304 is not meant to be enforced against Harris and his pocketknife. Even without any bad faith on the part of the government—and the record here gives us no reason to suspect there is—the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard.

Using this rationale, the KSC majority held that the residual clause was unconstitutionally vague and therefore reversed and remanded with directions to dismiss the charge.

As an appellate procedure point, one interesting aspect of this decision was the inclusion of a photograph of the pocketknife at issue in the actual decision. More appellate courts have shown a willingness to include such documents in their decisions. Appellate practitioners should also think about creative ways to use such documents in their briefs as well. 

[Update: the state filed a motion for rehearing/modification on July 30, 2020.]

[Further update: the KSC denied the state's motion for rehearing/modification on August 27, 2020 and the appellate mandate issued on September 8, 2020.]