Kansas Defenders

Age of defendant is an element of Jessica's Law offense

2009-07-02T09:46:00.008-05:00

Randall Hodgkinson won in State v. Bello , No. 99,225 (Kan. July 2, 2009), reversing a Hard-25 life sentence imposed pursuant to K.S.A. 21-4643 (Jessica's Law). The KSC affirmed Mr. Bello's convictions for aggravated criminal sodomy and aggravated indecent liberties with a child, but reversed the life sentence because the State failed to charge and the trial court failed to instruct the jury that Mr. Bello was over 18 years old at the time of the offenses.

The court rejected the State's argument that statutory citations in the charging document gave sufficient notice of the penalty. Citing Apprendi, the court also rejected the State's argument that the age of the defendant was "an element in a sentencing statute" and not an element of the offense. The court held:

At Bello's trial, the State presented no evidence as to his age, and the trial court did not instruct the jury to make a finding that Bello was age 18 years or older. Therefore, based on the facts reflected in the jury verdict, without the sentencing judge finding the additional fact of Bello's age, the statutory maximum sentences prescribed for the crimes of aggravated indecent liberties of a child and aggravated criminal sodomy were to be found in the KSGA nondrug offense sentencing grid along the lines for a severity level 3 felony and a severity level 1 felony, respectively. See State v. Gould, 271 Kan. 394, Syl. ¶ 4, 23 P.3d 801 (2001) ("A judge may not impose a more severe sentence than the maximum sentence authorized by the facts found by the jury."). To increase the penalty beyond that, i.e., to sentence Bello for an off-grid offense under K.S.A. 21-4643, the fact that Bello was age 18 years or older at the time he committed the offense needed to have been submitted to the jury and proved beyond a reasonable doubt. See Gould, 271 Kan. 394, Syl. ¶ 2.

The court remanded the case for resentencing on the convictions as on-grid felonies pursuant to the KSGA.

Right to refuse to consent to search

2009-06-27T21:29:00.003-05:00

Here is an article on FourthAmendment.com reporting on a recent Nevada case holding that it is improper for a prosecutor to comment on the refusal to consent to a search, just like it is improper for a prosectuor to comment on the exercise of other constitutional rights.

It's particularly useful becase we have been arguing (so far unsuccesfully) that it is improper in DUI cases to comment on the refusal to take a breath test in a DUI case, or to use the refusal as evidence. So far a lot of decisions have relied on Fifth Amendment analysis (saying that a blood/breath test isn't testimonial).

But if you apply a straight-forward Fourth Amendment analysis, as was applied in the Nevada case, it seems like the same result should obtain. You have a right to refuse consent (even if the officers have other authority to conduct the search over your refusal to consent).

Let's say officers have a warrant to search your house, but they know it might be on shaky grounds. So they come to your house and first ask for consent to search, which would render any problems with the warrant moot. But you refuse consent. Can a prosecutor use that refusal at trial against you? Not according to the Nevada case. Even though the officers could go ahead and search pursuant to the warrant. And why would investigation of DUI be any different? Even if the officers can require the test under their statutory authority, you still have the right to refuse.

Anyway, keep this in mind in these cases where the state is relying on the statute that says refusal is admissible in DUI cases.

Gant applied in Kansas

2009-06-26T15:31:00.003-05:00

Don Lill and Monte Miller (representing co-defendants) won in State v. Henning, No. 98,118 (Kan. June 26, 2009) affirming Judge Wheeler's suppression based on an improper search incident to arrest. The briefing and argument largely discussed the recent amendment to K.S.A. 22-2501(c), and the KSC decision spends considerable time discussing the legislative history of that amendment. But in the end, the KSC doesn't decide the specific contours of the amended statute:

Under these circumstances, we believe we can safely say that the legislature at least intended to undercut our holding in Anderson. We thus rule here that K.S.A. 22-2501(c)'s current wording would permit a search of a space, including a vehicle, incident to an occupant's or a recent occupant's arrest, even if the search was not focused on uncovering evidence only of the crime of arrest. We need not further define K.S.A. 22-2501(c)'s current parameters because Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710 (2009) leaves those parameters without legal effect.

Carl blogged about Gant here. The KSC applied Gant and the candid officer made it an easy decision:

Factually, this case is more similar to Gant than to Belton but, analytically, a factual comparison is unnecessary. There is no dispute that there was no warrant to search the car. A recognized exception to the Fourth Amendment's warrant requirement must apply, or the search was invalid and the evidence it uncovered appropriately suppressed by the district court judge. When a search is challenged, the State bears the burden of demonstrating that it was lawful. The State's only argument here is that the search of the car was a proper search incident to the arrest of Henning under K.S.A. 22-2501(c). (Zabriskie, although out of the car and standing near Henning during the search, had not yet been arrested herself.) Even more specifically, the State's only argument, based as it must be on the testimony of Stevenson, is that the search depended upon the recently amended and newly effective language of K.S.A. 22-2501(c), which, as we have discussed above, considerably broadened its scope and exceeded the purposes allowed for such searches under the Chimel rule. As Stevenson noted, his training was up-to-the-minute and told him he was permitted to search the car not only for evidence of the crime of arrest but for evidence of another crime or crimes.
Gant expressly disapproved of this approach.

It's worth repeating that the KSC held that suppression is the correct remedy:

A recognized exception to the Fourth Amendment's warrant requirement must apply, or the search was invalid and the evidence it uncovered appropriately suppressed by the district court judge.

This should be cited on the remedy issue if brought up by the state.

Exposure to communicable disease statute constitutional, but not proven

2009-06-24T10:13:00.003-05:00

Lydia Krebs won her second KSC case of the day in State v. Richardson, No. 100,445 (Kan. June 19, 2009), reversing two Lyon County convictions for exposing another to a life-threatening disease. The KSC reviewed K.S.A. 21-3435, making it a crime "for an individual who knows oneself to be infected with a life threatening communicable disease knowingly: (1) to engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening disease." The KSC held that the statute defines a specific intent crime and that any other interpretation would leave the statute constitutionally suspect:

without proffering any authority, the State contends that giving effect to the statute's plain specific intent language would actually thwart the legislature's intended purpose of preventing the intentional exposure of others to HIV. The State argues that any act of sexual intercourse or sodomy by an HIV positive person, even utilizing a condom, creates some element of risk that the virus will be transmitted to the sex partner, so that total abstinence is the only means by which an infected person may avoid exposing another to HIV. Accordingly, the State suggests that the specific intent to expose another to HIV is inherently included in the defendant's general intent to engage in sexual intercourse. Under the State's interpretation, a person infected with HIV must be totally abstinent or risk being prosecuted for a felony each and every time he or she engages in sexual intercourse or sodomy, regardless of whether the act is between two consenting (perhaps married) adults with full knowledge of the virus and utilizing prophylactic measures. We disagree.

The parties did not address whether the State's interpretation might be constitutionally suspect. A person's decision to engage in private, consensual sexual conduct is protected by the United States Constitution. See Lawrence v. Texas, 539 U.S. 558, 156 (2003); Griswold v. Connecticut, 381 U.S. 479 (1965). Nevertheless, if the legislature intended to criminalize all acts of sexual intercourse or sodomy by any person infected with HIV, it could certainly have said so without employing specific intent language. The State's public policy arguments cannot be reconciled with the plain language of K.S.A. 21-3435(a)(1), and we find that the statute creates a specific intent crime. The State was required to prove that Richardson, knowing he was infected with HIV, intentionally engaged in sexual intercourse with the specific intent to expose [the other individuals] to HIV.

The KSC rejected Mr. Richardson's claims that the statute fails to adequately define "life threatening" disease and what constitutes "exposing" someone to such a disease. The KSC held that "life threatening" means "something that poses a threat to life" and that such a definition provides sufficient notice that a person of ordinary intelligence would understand what is prohibited. The KSC noted that intentional exposure to influenza might support a prosecution under this statute, although "the prosecutor's burden of establishing the requisite specific intent may be more difficult to carry."

Finally, the KSC applied this interpretation and held that the state had failed to provide evidence that Mr. Richardson had the required specific intent for conviction under K.S.A. 21-3435:

[T]he State attempts to shift the burden of proof by arguing that Richardson "presented no direct evidence of his own belief that a low viral load could not transmit or expose another to the virus" and that he failed to demonstrate at trial that the sex with either of these women was consensual. Of course, the State has the burden of proving beyond a reasonable doubt each and every element of the crime, including Richardson's specific intent to expose M.K. and E.Z. to HIV. Richardson had no burden to disprove specific intent.

Finally, at oral argument, the State asserted that the trial testimony of Richardson's treating physician established that Richardson had been thoroughly educated on the risks of transmitting HIV through sexual intercourse. That knowledge, the State argues, is a circumstance which would support the specific intent element. However, Dr. Penn's testimony was less than definitive on that point. When asked by the prosecutor whether he had discussed with Richardson "safe or acceptable practices for engaging in sexual contact," the doctor replied, "I think we did early on, but I–I can't give you a time." Subsequently, when questioned by defense counsel, the doctor conceded that his records did not reflect such counseling for Richardson, even though the doctor maintained comprehensive records which should have reflected such a conversation with a patient. In short, the doctor's testimony did not establish the
circumstance which the State now asserts.

Here is coverage of the appeal in the Lawrence Journal-World.

Can't use juvenile adjudications for persistent sex offender classification

2009-06-24T10:05:00.003-05:00

Lydia Krebs won in State v. Boyer, No. 98,763 (Kan. June 19, 2009), vacating an enhanced sentence in a Sedgwick County case under K.S.A. 21-4704(j) based on a prior juvenile adjudication. This was primarily a statutory construction case--the KSC had to decide whether a juvenile adjudication satisifies the part of K.S.A. 21-4704(j) which is triggered if the defendant has "at least one [prior] conviction for a sexually violent crime." Based on its precedent, that's pretty easy:

This court and the Court of Appeals have repeatedly held that the legislature not only knows how to distinguish between juvenile adjudications and adult convictions, but it has done so in several statutes. To hold that a reference to convictions in K.S.A. 21-4704(j) now also encompasses juvenile adjudications would throw doubt on the application of other current statutes. Presumably, the legislature has written the current statutes with the court's prior interpretations in mind. It is the prerogative of the legislature, not the court, to amend those statutes. We affirm the decision of the Court of Appeals in this case, holding that juvenile adjudications are not to be considered in the determination of persistent sex offender status under K.S.A. 21-4704(j).

This is sure consistent with what they've said before, so it's not too surprising. But it will sure make a big difference for persons who were dealt with previously in the juvenile system.

In limine violation and Doyle violation result in new trial [NOT FINAL]

2009-06-24T09:54:00.004-05:00

Rick Kittel and KU Defender Project student Sebastien Orosco won in State v. Pruitt, No. 100,039 (Kan. App. June 19, 2009), winning a new trial in a Lyon County attempted burglary prosecution. There were two trial errors that were of concern to the COA: (1) a violation of an in limine order when an officer/witness answered a question implying prior bad acts and (2) a Doyle violation, which was implicitly conceded in the state's brief. The COA found both errors and rejected the state's argument that they were harmless:

Here, the evidence against Pruitt was not overwhelming. For instance, the jury found Pruitt not guilty of the battery charge. This case depended on the credibility of the witnesses. Previously, we determined that the prosecutor's elicitation of testimony that police knew Pruitt because of "another incident" was a violation of the order in limine. Moreover, the trial court did not instruct the jury to disregard Keiss' testimony. In addition, the violation seemed to be intentional and Keiss' testimony was prejudicial. The prosecutor followed the order in limine violation with a Doyle violation. Although the trial court admonished the jury not to consider Pruitt's post-Miranda silence in its deliberation, the damage had been done in the credibility contest between Surmeier and Pruitt. The Doyle violation was apparently intentional, and Keiss' testimony was very prejudicial. Moreover, there is no telling what effect Keiss' testimony (in violating the order in limine and the post-Miranda silence rule) had in a case primarily based on credibility. As a result, we determine that Pruitt was substantially prejudiced by Keiss' testimony.

The COA also held that an Allen instruction, indicating that another trial would be a burden was improper under Salts (blogged about here), and reversed on that as well. It's another example of Salts resulting in a reversal where defense counsel objected to the pattern instruction, even though it was clearly erroneous in Salts itself.

Due Process violation for probation violation delay [NOT FINAL]

2009-06-23T09:46:00.003-05:00

Lydia Krebs won in State v. Curtis, No. 99,474 (Kan. App. June 19, 2009), reversing a Reno County probation violation finding. The defendant claimed a Due Process violation for a twenty-one month delay between filing of the motion revoke and the decision. The COA reviewed case law on probation violation delay, including the most recent KSC caselaw:

Here, Curtis does not argue he was prejudiced by the State's delay; rather, he argues the State waived the right to pursue revocation as a result of the violation. Thus, the issue is one of waiver. Although each of the cases cited above ultimately makes a legal finding as to whether the State has waived its right to pursue revocation of probation, none of the cases define waiver. Black's Law Dictionary defines waiver as the voluntary relinquishment of a known right. Waiver may be express or implied. "'An implied waiver may arise where a person has pursued such a course of conduct as to evidence an intention to waive a right, or where his conduct is inconsistent with any other intention than to waive it.'" Black's Law Dictionary. Applying this definition in the context of whether the State has waived its right to pursue probation revocation, courts necessarily must consider the State's conduct to determine whether such conduct reflects (1) reasonable diligence in pursuing revocation or (2) unreasonable inaction in pursuing revocation, indicating implied waiver.

The COA went on to apply a Barker v. Wingo constitutional speedy trial analysis and held that

(1) a time period of 616 days elapsed between Curtis' arrest and adjudication of his probation violation; (2) a 393-day delay in the adjudication can be attributed to an unreasonable failure by the State to pursue Curtis' case; and (3) Curtis made an affirmative assertion of his right to timely adjudication on more than one occasion. Our evaluation of these factors strongly support a finding that the State failed to act in a timely and reasonable manner in pursuing the adjudication of the probation violation. We find the State's failure in this regard represented an implied waiver on the part of the State to pursue the violation; thus, the court's decision to go forward with the revocation proceeding violated Curtis' right to due process. Accordingly, we reverse the probation revocation and vacate the order to serve the underlying sentence.

Interesting. Keep this in mind on probation violation cases.

Overbroad non-exclusive possession instruction [NOT FINAL]

2009-06-23T09:33:00.005-05:00

Meryl Carver-Allmond won in State v. Douglas-Keough, No. 100,316 (Kan. App. June 19, 2009)(unpublished), obtaining a new trial in a Reno County drug prosecution. The district court gave a nonexclusive possession instruction based on P.I.K. Crim. 3d 67.13-D, but it included all of the possible factors under that pattern instruction. Ms. Douglas-Keough objected to three of the factors being included because the state had not presented evidence of those factors. The COA agreed:

The seven factors were set forth as if they were facts supported by the evidence at trial. For instance, the jury was instructed that it may consider Douglas-Keough's "previous participation in the sale of a controlled substance." However, there was absolutely no evidence that Douglas-Keough ever sold drugs, and any inference that she may have done so was highly prejudicial. The jury was also instructed that it may consider the fact the controlled substance was found in plain view. There was no evidence that the drugs were found in plain view in the vehicle, but instead the evidence showed that the drugs were found in an empty pack of cigarettes shoved down between the driver's seat and the center console. The contradiction between the language of the instruction and the evidence presented at trial could have easily misled the jury as it decided whether Douglas-Keough possessed the drugs in question.

Another example of when an objection makes the difference. This is a suspect instruction in general--we don't tell juries what factors are important with regard to essential elements very often. Look carefully if this instruction is being pushed by the court or the prosecutor.

Acquittal in vehicular homicide case

2009-06-11T14:25:00.002-05:00

Here is a Wichita Eagle article reporting that Steve Mank won an acquittal in State v. Pasteka, ending a Sedgwick County vehicular manslaughter prosecution.

We sure are seeing an increase in these cases where accidents are prosecuted as crimes. Good to see a jury recognize that accidents tragically happen.

ICE hold doesn't vitiate statutory right to speedy trial [NOT FINAL]

2009-06-09T09:37:00.004-05:00

Patrick H. Dunn won in State v. Montes-Mata, No. 98,883 (Kan. App. May 29, 2009), affirming Judge Wheeler's dismissal of Lyon County drug charges on statutory speedy trial grounds. The issue stemmed from a decision whether an immigration hold kept a person from being held solely by reason of the pending state charges:

We conclude the immigration detainer issued to the Lyon County Sheriff's Department merely expressed ICE's intention to seek future custody of Montes-Mata and requested notice from Lyon County prior to terminating Montes-Mata's confinement. The detainer did not, however, place a hold on Montes-Mata and he continued to be held in custody solely by reason of the instant charges.

Consequently, the immigration detainer issued by ICE did not vitiate Montes-Mata's right to be brought to trial within 90 days under K.S.A. 22-3402, and we affirm the district court's dismissal of the charges based on a violation of Montes-Mata's statutory speedy trial rights.

Is this a recurrent issue?

Insufficient evidenc to support accident convictions [NOT FINAL]

2009-06-09T09:28:00.006-05:00

Kevin P. Sheppard won in State v. Holm, No. 100, 943 (Kan. App. May 29, 2009), reversing a Shawnee County leaving the scene of an accident and failure to report an accident convictions. The COA construed K.S.A. 8-1602 to -1604:

A reading of these statutes appears to require remaining at the scene of a noninjury accident only if the property damaged by the damaging driver is attended by another person. Therefore, a single-car, noninjury accident does not require remaining at the scene unless the property of some other person is damaged.

Because the state only showed a single-vehicle accident the COA reversed the leaving the scene of an accident conviction. Further, the Court noted that the statute has a minimum amount of damage that must occur before an accident must be reported:

K.S.A. 2008 Supp. 8-1606 only requires reporting requirements for noninjury property accidents if there is at least $1,000 in property damage. In construing K.S.A. 2008 Supp. 8-1606 in the light most favorable to the defendant, as we are required to do, Holm's conviction cannot stand. K.S.A. 2008 Supp. 8-1606 fails to criminalize the failure to report accidents with property damage less than $1,000. The State failed to introduce evidence to document an apparent $1,000 in damage to Holm's van or the ditch where it landed, although such damage may have occurred. As a result, there was insufficient evidence to support Holm's conviction for failure to report.

This might be useful in some other contexts.

Lesser verdict in Hutch murder case

2009-06-08T12:16:00.002-05:00

Here is a Hutchinson News article reporting that PD Kelly Driscoll won a verdict of second-degree murder in State v. Williams, a Reno County first-degree murder prosecution. From the article, it sounds like state-of-mind was the big issue.

Lots of great appellate work by defenders

2009-06-02T10:57:00.000-05:00

We try to track and publish good cases as they come out. Not surprisingly, we are somewhat focused on ADO cases (because we are from the ADO). We try to post on other cases when we know about them, so we pretty regularly post on other defenders' published and unpublished reversals, which we can track. But it is often difficult to know when defenders have won in unpublished state appeals (because they show up as affirmed on the court web site and it doesn't show who is appellant/appellee on the case list). Because the ADO does not generally do interlocutory appeals, they can sort of fly under the radar.

I recently did a westlaw search and it turned up a lot of great trial/appellate work by defenders in these types of cases in the last few months. We posted on them (retroactively dated to around when the decision came out), but we thought we would also just list and link them here:

State v. Ramos, No. 99,544 (Jan. 16, 2009); Shawna Miller (now Jackson County CA); affirming Judge Ireland's suppression order based on improper car stop.

State v. Hilson, No. 99,421 (Feb. 6, 2009); Michael Whalen; affirming Judge Powell's grant of a new trial in a K.S.A. 60-1507 proceeding.

State v. Frischenmeyer, No. 99,975 (Feb. 13, 2009); Sam Kepfield; and State v. Swansen, No. 100,331 (Feb. 13, 2009); John Sullivan; companion cases affirming Judge Chambers' suppression order rejecting application of emergency doctrine.

State v. McFadden, No. 99,832 (Feb. 13, 2009); Shawn Lautz; affirming Judge Chambers' suppression order based on improper seizure of car.

State v. Miller, No. 99,998 (Feb. 13, 2009); Steven Jensen; affirming Judge Harth's dismissal based on statutory speedy trial.

State v. Renteria, No. 99,309 (Feb. 27, 2009); Michael Holland II; affirming Judge Rome's dismissal based on statutory speedy trial.

State v. Rodriguez, No. 100,626 (March 13, 2009); Alex McCauley; affirming Judge Bornholdt's suppression based on an improper search of a vehicle.

State v. McPherson, No. 100,072 (March 13, 2009); affirming Judge Larson's suppression order based on improper community caretaking stop.

State v. Pickerill, No. 100,189 (April 3, 2009); Charles O'Hara; affirming Judge Chambers' denial of a motion to continue.

Good job. Be sure to let us know about good decisions like this. And let us know about good orders you get in district court that aren't appealed. If you send us a .pdf, we will post it on the blog (and other defenders can cite it as persuasive authority)!

State must prove adult's inability to consent [NOT FINAL]

2009-06-02T09:21:00.005-05:00

Matthew J. Edge won in State v. Wylie, No. 99,580 (Kan. App. May 22, 2009)(unpublished), reversing a Lyon County rape conviction. The state charged Mr. Wylie with alternative counts of rape by force and rape of a woman unable to give consent due to a mental disability. The jury acquitted of rape by force and rape by inability to consent. The COA rejected the state's argument that the victim's failure to affirmatively state that she understood certain consequences of sexual intercourse was sufficient to show inability to consent:

The State argues that unlike the victim in [State v. Ice, 27 Kan. App. 2d 1, 997 P.2d 737 (2000)], C.F. never affirmatively stated that she understood certain consequences of sexual intercourse, such as AIDS or venereal disease. It contends C.F. merely agreed with the defense attorney that a woman can get pregnant if a man has sex with her. It also contends that C.F. never testified that she had the right to resist advances and say no. According to the State, this all establishes that the level of C.F.'s understanding of sexual activities was less than that of the victim in Ice.
The problem with the State's argument is that it suggests that the absence of testimony is sufficient to establish that C.F. was incapable of giving consent. The argument, in essence, transfers to Wylie the burden to prove C.F. was capable of giving consent, when legally it was the State's burden to prove C.F. was not capable of giving consent. The argument is contrary to the elementary principle that the State has the burden to prove each element of the crime charged.

The COA went on to review the record, especially's C.F.'s tesimony:

C.F.'s testimony was clear and lucid throughout her direct testimony and cross-examination. Her account was specific, and she answered the questions about the incident in completed thoughts. Her understanding of sex and its consequences is far from rudimentary.

As a result, the COA held that the state had failed to introduce sufficient evidence of inability to consent.

The COA rejected Mr. Wylie's claims that this problem infected an aggravated burglary conviction, which it affirmed.

[Update: the state filed a PR on June 15, 2009. Mr. Wylie filed a cross-PR on June 22, 2009.]

Reversal for failure to give lessers

2009-06-02T09:14:00.006-05:00

Rick Kittel and KU Defender Project student Julie Larson won in State v. Hawkins, No. 98,459 (Kan. App. May 22, 2009)(unpublished), getting a new trial in a Montgomery County felony theft and fleeing and eluding prosecution. The COA reversed and remanded on each count based on failure to give lesser-included offense instructions. With regard to the felony theft, although the victim testified that the value of the stolen car was between $1000 and $25000, he also admitted on cross-examination that that conclusion was based on the insurance company's estimate and that an average persom might have said it was worth "about a hundred dollars." Based on this evidence, the COA held the district court should have given a misdemeanor theft instruction. Similarly, the COA held that the district court should have given reckless driving as a lesser of felony fleeing and eluding.

[Update: the state did not file a PR and the mandate issued on June 25, 2009.]

Not guilty on battery on a correctional officer

2009-05-29T15:37:00.003-05:00

Here is a Hutchinson News article reporting that Sarah Sweet-McKinnon won an acquittal in State v. Hubbard, ending a Reno County battery on a correctional officer prosecution.

Captial murder charges dismissed

2009-05-19T09:09:00.009-05:00

The State has dismissed capital murder charges against Jason Strand and Kendrick Shears, two Hutchinson Correctional Facility inmates accused of the murder of fellow inmate David Warren. Tim Frieden and Jeff Wicks represented Mr. Shears, and John V. Wachtel and Roger L. Falk represented Mr. Strand. Here is a hutchnews.com article on the dismissal.

At a preliminary hearing in March, the court found that probable cause existed for the capital murder charges against Shears and Strand, but the men had not been arraigned at the time of the dismissal. Reno County District Attorney Keith Schroeder said in a news release, “To proceed to trial, with full knowledge of the overwhelming weaknesses in the credibility of key witnesses, would be reckless, irresponsible and likely result in acquittal."

A third defendant, Charvell Robinson, had also been charged with capital murder in the case, but the court found at the March preliminary hearing that there was no probable cause to believe that Mr. Robinson committed any crime. Marc Manna and Gary W. Owens represented Mr. Robinson.

Can't use uncounseled misdemeanors for enhancement

2009-05-08T14:39:00.004-05:00

Michelle Davis won in State v. Youngblood, No. 96,850 (Kan. May 8, 2009), reversing a Harvey County conviction for second-time possession of a hallucinogenic drug. The critical issue was whether the distrrict court could use a prior municipal conviction for enhancement purposes. There were two issues: (1) did the state prove waiver of counsel and (2) did Mr. Youngblood have a right to counsel? On the first issue, the KSC held that the state had failed to prove a waiver:

Defense counsel asked the municipal judge whether he had any independent recollection of whether Youngblood waived counsel on the day he pled or whether he waited to waive counsel until he signed the waiver form on November 1. The judge responded that he had "the general gist of the conversation with Mr. Youngblood in going through the standards, having done it hundreds of times with that inquiry but in terms of the exact quote of what he said, no. I don't." Again, no clarification was sought as to what "standards" the witness was referring or the nature and extent of the "inquiry" the municipal judge had made hundreds of times.

Apparently, the State would have us accept on faith that the municipal judge's standard procedure includes sufficiently informing the defendant of his or her rights, so as to meet the criteria for a valid waiver. However, [In re Application of Gilchrist, 238 Kan. 202, 208, 708 P.2d 977 (1985)] stressed the need to have either a record of the court proceedings in which a criminal defendant waives the right to counsel or a written waiver of counsel "for the purpose of proving an accused was properly advised of his rights and that he knowingly and intelligently waived those rights."

It is not enough to show that Youngblood, after the fact, corroborated that he had waived counsel. The State must also prove that the initial waiver was properly obtained after appropriate advice as to the right to counsel, i.e., that the plea hearing waiver was knowingly and intelligently made. A post-sentencing written waiver will not legitimize an invalid pre-plea waiver.

On the second point, the KSC applied Alabama v. Shelton, 535 U.S. 654 (2002),a fairly recent SCOTUS decision, and held that even though Mr. Youngblood was not required to serve the suspended sentence in the prior municipal case, the suspended sentence was sufficient to trigger the right to counsel.

Youngblood was entitled to counsel when the municipal court found him guilty and sentenced him to a prison term, even though the jail time was conditioned upon probation. The denial of that right to counsel renders the uncounseled misdemeanor conviction in municipal court unconstitutional under the Sixth Amendment. Accordingly, the unconstitutional conviction could not be collaterally used in district court for sentence enhancement. Youngblood's conviction for felony possession of hallucinogenic drugs is reversed.

This seems to be an accurate application of Shelton.

Attempted Jessica's Law is a grid offense

2009-05-08T14:28:00.003-05:00

E. Jay Greeno won in State v. Horn, No. 100,373 (Kan. May 8, 2009), obtaining remand for new sentencing in a Butler County attempted criminal sodomy case. The KSC construed two different provisions noting that Jessica's Law purports to cover listed offenses and attempts to commit those listed offenses, but that the sentencing guidelines provides that attempt to commit an off-grid offense is a severity level 1 offense. The KSC concluded both statutory provisions apply:

The district court focused on the provisions of Jessica's Law, particularly noting that K.S.A. 21-4643(a)(2)(B) requires the sentencing court to impose the applicable guidelines sentence if it results in a longer prison term than the mandatory minimum of 25 years (300 months). That persuaded the district court that the legislative intent was to impose the longest possible prison term for the crimes listed in 21-4643(a)(1), including attempts. While that intuitive assessment of legislative intent is likely accurate, we cannot simply ignore the fact that the legislature did not clearly state its intent by amending K.S.A. 21-3301(c) to exclude K.S.A. 21-4643.

Where the legislature fails to manifest a clear legislative intent by permitting the existence of conflicting statutory provisions, the rule of lenity must be considered. The general application of the rule is that "'[c]riminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.'"

Employing the rule of lenity in this case leads us to resolve the conflicting statutory provisions in favor of Horn. Specifically, aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1) is an off-grid felony. K.S.A. 21-3506(c). Pursuant to K.S.A. 21-3301(c), the separate crime of attempted aggravated criminal sodomy is ranked as a nondrug severity level 1 felony. Therefore, we vacate Horn's hard 25 life sentence under 21-4643 and remand for appropriate sentencing for a severity level 1 nondrug felony under the KSGA.

Interesting--sort of like McAdam, but they sure never cite McAdam.

In-laws connection insufficient for probable cause

2009-05-04T15:46:00.005-05:00

The Tenth Circuit decided Poolaw v. Marcantel, No. 07-2254 (10th Cir. May 4, 2009), a 1983 case, where officers searched a suspect's in-law's property and stopped a suspect's sister-in law mostly because they were the suspects' in-laws. The Court held that familial relationship, by itself, is insufficient for probable cause:

Adhering to established Supreme Court precedent and the unanimous case law of this and other courts, we hold that a familial relationship is insufficiently particularized to justify invading an individual’s reasonable expectation of privacy. Applying this rule to the present case, we conclude that the Poolaws’ status as Astorga’s in-laws, combined with the meager additional facts known to Marcantel and Hix, were insufficient to support a finding of either probable cause to search the property or reasonable suspicion to detain Chara. Further, because these Fourth Amendment principles were clearly established at the time of their actions, Marcantel and Hix are not entitled to qualified immunity.

Might be useful in some other Fourth Amendment contexts.

There's probably some sort of in-laws joke in here, but it's escaping me.

Kudos to David Freund for the tip.

May 2009 KSC docket

2009-05-04T13:26:00.005-05:00

Here are the criminal cases on the KSC docket for May 11-15, 2009. 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 over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

May 11--Monday--a.m.

State v. James Boyer, No. 98,763 (Sedgwick)
Sentencing appeal (petition for review)
Lydia Krebs
[Reversed and remanded; Rosen; June 19, 2009]

Use of juvenile to classify as persistent sex offender

State v. Gerald Gonzalez, No. 99,657 (Sedgwick)
Direct appeal; Rape/Agg Indecent Liberties (Jessica's Law)
Rachel L. Pickering

Failure to charge and instruct on element of crime
Insufficient evidence
Ineffective assistance of counsel

State v. Ronnie Morlock, No. 97,447 (Sedgwick)
Direct appeal (petition for review); Possession with Intent to Sell
Mark T. Schoenhofer

Fourth Amendment

State v. Karlan Ransom, No. 99,794 (Sedgwick)
Direct appeal; First-degree murder
Nancy Ogle

Fourth Amendment
Improper admission of irrelvant evidence
Improper inclusion of biased juror

May 12--Tuesday--a.m.

State v. David Easterling, No. 100,454 (Shawnee)
Sentencing appeal
Christopher M. Joseph

Sentencing procedure

State v. Christopher Case, No. 98,077 (Dickinson)
Sentencing appeal (petition for review)
Christina M. Waugh

Extension of post-release violates Apprendi

May 13--Wednesday--a.m.

State v. Gary Morningstar, No. 99,788 (Sumner)
Kirwin L. Spencer

State v. Jerry Trussell, No. 99,411 (Butler)
Direct appeal; First-degree murder
Michael C. Brown

Sufficiency of evidence
Admission of confession
Improper leading questioning

May 14--Thursday--a.m.

State v. Darren Raschke, No. 98,861 (Rice)
Sentencing appeal (petition for review)
Carl Folsom

Imposition of fines without consideration of ability to pay

State v. Michael Houston, No. 98,373 (Wyandotte)
Direct appeal (petition for review); Second-degree murder
Carl Folsom

Improper denial of witness prior bad acts
Improper admission of evidence about incarceration at Larned
Improper admission of hearsay
Failure to instruct on involuntary manslaughter

Lisa Boldridge v. State, No. 97,652 (Atchison)
K.S.A. 60-1507 appeal (petition for review)
Jean K. Gilles Phillips

Ineffective assistance of counsel

State v. Harry White, No. 100,264 (Saline)
Motion to withdraw plea; Agg indecent liberties (Jessica's Law)
Carl Folsom

Withdrawal of plea where defendant inaccurately advised of maximum penalty

May 15--Friday--a.m.

State v. Cynthia Casady, No. 99,023 (Doniphan)
Sentencing appeal (petition for review)
Shawn E. Minihan
[Affirmed; Rosen; June 26,2009]

BIDS application fee

Second hung jury in Salina murder case

2009-05-04T10:03:00.005-05:00

Here is the Salina Journal article reporting that, for the second time, a Saline County second-degree murder prosecution has ended in a hung-jury. The article indicates that the prosecutor will decide whether to try, try again. Nice job to Julie McKenna for her great work in the case.

[Update: here is a Salina Journal article reporting that the prosecutor plans to try a third time.]

When all else fails, see if you can get the defense attorney to testify

2009-05-01T09:10:00.005-05:00

Here is a Hutch News article reporting that Judge McCarville has found public defender Sarah Sweet-McKinnon in contempt for refusing to testify regarding confidential client communications in a Reno County murder prosecution. I thought it was sort of interesting that the prosecutor says that this "is a murder case, and the sole goal is to find the truth." Really? Even if it means thowing the rules of professional conduct out of the window? I guess that's one view.

We will update on this appeal when there is something to update.

[Update: here is a Hutch News article reporting on the ongoing saga.]

Acquittal in Reno County

2009-04-29T17:42:00.002-05:00

Here is a Hutch News article reporting that Lee Timan won an acquittal in State v. Dirkson, ending a Reno County agg battery prosecution.

Just because you might get to leave later doesn't mean you feel free to leave now

2009-04-27T15:54:00.000-05:00

John Moon of Albequerque won in U.S. v. Fred, No. 08-2052 (10th Cir. April 20, 2009)(unpublished), obtaining suppression of statements under Miranda. The main question was whether Mr. Fred was in custody. The Tenth Circuit underwent a detailed analysis of the district court's findings, holding that some were supported and some were clearly erroneous. The court particularly distinguished the fact that the agent told Mr. Fred he could leave at the end of the interview as not supporting a finding that Mr. Fred would have felt free to leave:

Fred’s ability to leave when he was done with the interview, as Mahoney testified, is quite different than Fred’s ability to leave at any time, as the district court erroneously found. We agree that the emphasized portion of Mahoney’s testimony “resounds more as a compulsion that he is not leaving until he talks.” Mahoney’s testimony does not support the district court’s conclusion that Fred was informed he was free to leave at any time.

. . . .

Taking all of these facts into consideration, we conclude that a reasonable person in Fred’s position would have understood that he was in custody during the interview. Fred was in an enclosed room at the FBI office with two FBI agents, seated with his back to a door he reasonably thought was closed. The agents wore badges and guns. The interview lasted between one and a half and two hours. McClanahan was not permitted to be present in the room while her husband was interviewed. As Mahoney testified, Fred was told he could leave when he was done. Miranda warnings were not given prior to Fred’s custodial interrogation, and the district court should have suppressed Fred’s statements.

The Tenth Circuit went on to hold that the improper admission of the statements was not harmless and reversed.

Kudos to David Freund for the case tip.