tag:blogger.com,1999:blog-210653432024-03-13T14:33:49.370-05:00Kansas DefendersA discussion about issues, appellate decisions, and other news of interest to Kansas defenders. This site does NOT necessarily reflect the opinion or position of the Appellate Defender Office or of the Kansas Board of Indigent Defense Services. Nor does this in any way constitute legal advice or is it even warranted to be remotely accurate! It is intended to be a resource for Kansas defenders and others interested in the criminal justice system in Kansas.Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.comBlogger1298125tag:blogger.com,1999:blog-21065343.post-40838733805841007992021-10-30T15:35:00.010-05:002022-07-08T15:48:21.637-05:00Cumulative error requires consideration of all errors<p>Kasper Schirer won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/118792_1.pdf?ext=.pdf">State v. Cameron Taylor</a></i>, No. 118,792 (Kan. October 8, 2021), obtaining a new trial in a Finney County marijuana possession, battery on a law enforcement officer, and criminal threat prosecution. The COA had ordered a new trial on the possession charge based on a suppression issue, but affirmed the remaining convictions despite finding four additional trial errors, includingviolations of in limine orders, and prosecutorial error in closing argument. The COA had found that the trial errors were individually and cumulatively harmless with regard to the remaining counts. The KSC granted review on whether the errors were harmless under the cumulative error rule and found that the COA had misapplied the cumulative error rule: </p><p></p><blockquote>At the outset, it is readily apparent the panel erred in three distinctive ways in its
cumulative error analysis. First, it failed to consider the district court's erroneous denial
of the marijuana evidence in its analysis. Second, it failed to apply <i>Chapman's</i>
constitutional harmless error test, when at least three of the five errors implicated the
Fourth and Fourteenth Amendments to the United States Constitution. Third, it failed to
question whether the errors' cumulative effect savaged Taylor's credibility although it
observed the jury's credibility determination affected the verdict. </blockquote><p></p><p>The KSC went on to apply the correct cumulative error test and concluded that a new trial was required on all counts:</p><p></p><blockquote>With the burden on the State to show harmless constitutional error, we hold the
prosecution fails to establish beyond a reasonable doubt that the cumulative effect of all
five errors did not affect the trial's outcome. Had the jury believed Taylor's version of the
incident—or just found his testimony created a reasonable doubt—the jury would have
been legally required to return not guilty verdicts on the battery and threat charges.</blockquote><p></p><p>As a result, the KSC reversed the counts affirmed by the COA and remanded the entire ase to the district court with directions to give Mr. Taylor a new trial.</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-33632786070298509692021-10-24T09:21:00.001-05:002022-07-08T09:43:39.615-05:00Obstruction cannot occur until predicate offense completed<p>Caroline M. Zuschek won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/122800.pdf?ext=.pdf">State v. Jenkins</a></i>, No. 122,800 (Kan. App. October 1, 2021) (unpublished), obtaining reversal of a Jackson County obstruction conviction. The state charged Ms. Jenkins with obstructing apprehension or prosecution of a crime for hiding in her boyfriend in her home when sheriff's officers came to arrest him for a probation violation warrant and lying to officers. Specifically, the state charged Ms. Jackson with "knowingly harboring, concealing or aiding any person who . . . [h]as
committed or who has been charged with committing a felony or misdemeanor under the
laws of this state.".At a bench trial on stipulated facts, the district court concluded that the evidence did not support the obstruction charge because a probation violation warrant is not the same as having committed or being charged with a crime. But the district court found that, in a separate case, the state had separately charged Ms. Jackson's boyfriend with interference for hiding in Ms. Jackson's house to avoid arrest. The district court held that Ms. Jackson's actions constituted obstruction as it related to that predicate offense. </p><p>The COA noted the differences between the offenses of obstruction and the doctrine of aiding and abetting:</p><p></p><blockquote><p>To be guilty of obstruction . . . a defendant must
harbor, conceal, or aid a person who has already committed a crime. In other words, the
predicate crime of the other person must have been completed at the time the defendant's obstruction occurs. </p><p>. . . .</p><p>We need not delve into the historical foundations for the crimes of aiding a felon
or obstruction. Basically, they criminalize as a distinct offense helping someone who has
already committed a crime to evade capture. By contrast, under the statutory principles of
criminal liability in Kansas, if one person aids or assists another person who is in the
process of committing a crime, the person rendering the aid or assistance is guilty of that
crime. </p><p>. . . .</p><p>Duble's interference with the law enforcement officers looking to take him into
custody for the probation violation continued throughout the time he hid in Jenkins' house
and was ongoing when Jenkins told the officers he was not there. In short, Duble's crime
had not been completed at the time Jenkins misled the officers. Jenkins, therefore, could
not be guilty of obstruction in violation of K.S.A. 2020 Supp. 21-5913 on the stipulated
evidence and the charge as the district court revised it.</p></blockquote><p></p><p>As a result, the COA reversed the conviction, vacated the sentence, and entered a judgement of acquittal.</p><div>[Update: the state did not file a PR and the mandate issued on November 9, 2021.]</div>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-89445583990314946652021-10-24T09:14:00.001-05:002022-07-08T09:19:23.000-05:00IAC stemming from failure to file timely notice of alibi was shown even without trial attorney's testimony<p>Jacob Nowak won in <a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/122643.pdf?ext=.pdf">Rucker v. State</a>, No. 122,643 (Kan. App. October 1, 2021) (unpublished), obtaining a new trial in a Wyandotte County criminal threat and criminal discharge at an occupied building prosecution. Mr. Rucker filed a motion pursuant to K.S.A. 60-1507 alleging ineffective assistance of counsel for among other reasons, failing to file a timely notice of alibi. After the district court initially denied Mr. Rucker’s motion, the COA remanded for evidentiary hearing on several claims, including failure to file a timely notice of alibi. On remand, the district court found that Mr. Rucker had not shown either deficient performance nor prejudice. </p><p>In particular, the district court had faulted Mr. Rucker for failing to call trial counsel at the evidentiary hearing. The COA acknowledged that it was unusual, but not fatal to the deficient performance claim:</p><p></p><blockquote><p>Rucker's decision not to call [trial counsel] is unusual given that the prior panel remanded the matter for an evidentiary hearing on claims of ineffective assistance of counsel.</p><p>. . . .</p><p>That said, at times it is clear from the record and circumstances that trial counsel's actions were not strategic even without testimony from trial counsel. Because Rucker did not call [trial counsel] as a witness at the evidentiary hearing, the only explanation in the record for why [trial counsel] did not timely file the alibi notice comes from the October 23, 2012, pretrial hearing. There, [trial counsel] admitted that he had the list of the names of Rucker's alibi witnesses before the deadline to file the notice but claimed the information was "incomplete . . . to comply with the statute." [Trial counsel] did not elaborate on the information he needed to file the notice promptly, and the district court did not ask about the matter.</p></blockquote><p></p><p>The COA also held that the deficient performance met the prejudice test for ineffective assistance of counsel:</p><p></p><blockquote>Considering the totality of the evidence in the record, we find the confidence in the outcome of Rucker’s case is sufficiently undermined by the fact that at least four witnesses were not allowed to testify at trial that Rucker was with them at or near the time of the shooting. . . Rucker did not receive a fair trial because his counsel failed to timely file the alibi notice for no apparent reason.</blockquote><p></p><p>As a result, the COA ordered a new trial.</p><div>[Update: the state did not file a PR and the mandate issued on November 9, 2021.]</div>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-52449162760209154252021-10-23T13:44:00.013-05:002022-07-08T14:03:43.226-05:00Affirmatively misadvising client regarding calculation of criminal history score justifies plea withdrawal<p>Jennifer C. Roth won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/121464.pdf?ext=.pdf">State v. McKinzy</a></i>, Nos. 121,464 (Kan. App. October 1, 2021) (unpublished), obtaining remand for further proceedings in a Wyandotte district court murder prosecution. The state charged Mr. McKinzy with first-degree murder. The parties entered into an agreement where Mr. McKinzy would plead guilty to second-degree murder and a count of aggravated battery in a separate case. Prior to sentencing, Mr. McKinzy filed a motion to withdraw his plea because his attorney affirmatively misinformed him that he would be criminal history C for the murder conviction and criminal history B for the aggravated battery conviction. In fact, under clear Kansas law, Mr. McKinzy fell into criminal history category B for each (because the aggravated battery conviction counted as criminal history for the murder case). </p><p>The COA had little trouble holding that Mr. McKinzy was not represented by competent counsel, one of the factors to consider to determine whether to allow a person to withdraw a guilty plea:</p><p></p><blockquote>This record shows that the defense counsel's performance can be fairly
characterized as "lackluster" advocacy. This was not simply a case of miscalculating a
criminal history score. McKinzy's attorney represented him while pleading to two high level felonies, and the attorney did not know, let alone understand, that multiple
convictions on the same day in different cases count against each other for criminal
history purposes. And, more importantly, failed to inform McKinzy of this very
important sentencing rule before entering pleas of guilty. </blockquote><p></p><p>The COA also observed that the district court appeared to confuse the standard for a post-sentencing motion to withdraw plea (requiring constitutionally deficient counsel) and a pre-sentencing motion to withdraw plea (requiring only good cause): </p><p></p><blockquote>We have two problems with the district court’s ruling. The first is it ignored the defense attorney’s admission of incompetence. The second problem is that the court used an incorrect test for a presentence motion to withdraw a plea.</blockquote><p></p><p>The COA reversed the denial of the plea withdrawal motion and remanded for further proceedings. </p><div>[Update: the state did not file a PR and the mandate issued on November 9, 2021.]</div>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-31678728058932344682021-10-23T10:22:00.003-05:002022-06-22T10:51:31.366-05:00Failure to argue voluntary act requirement in statutory rape case was IAC<p>Richard Ney and David L. Miller won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/113705_2.pdf?ext=.pdf">State v. Dinkel</a></i>, No. 113,705 (Kan. September 24, 2021), obtaining a new trial in a Saline County statutory rape prosecution. The Kansas Supreme Court had previously considered this case (blogged about <a href="https://kansasdefenders.blogspot.com/2020/06/statutory-rape-still-requires-proof-of.html">here</a>) and held that a voluntary act was an element of a statutory rape prosecution. In the previous decision, the KSC remanded to determine whether Ms. Dinkel's attorney was ineffective for failing to make any argument regarding the actus reus requirement. The district court held that Ms. Dinkel's attorney was not ineffective. A majority of the KSC disagreed:</p><p></p><blockquote><p>It is true [defense counsel] presented Dinkel's version of the events to the jury. But nothing
in his arguments or the instructions told the jury how it could use these defenses. The jury
was instructed to apply the law that the court gave it. That law provided that Dinkel was
guilty of rape if sexual intercourse occurred at certain times, Dinkel knowingly engaged
in the act, and K.H. was under 14 years old. It instructed the jury that Dinkel acted
knowingly if she was aware of the nature of her conduct. The State proved that sexual
intercourse occurred at least once during the described time period, that Dinkel was
aware of what was happening, and that K.H. was under 14 years old. Even if the jury
believed Dinkel's defenses, the instructions offered no avenue for the jury to find she was
not guilty. Thus, regardless of how aggressively or completely [defense counsel] presented Dinkel's claims, without any argument or instruction on the State's burden to prove that Dinkel's
acts had to be voluntary, her claims were legally irrelevant.</p><p>. . . .</p><p>[Defense counsel's] assertions did not provide the legal link between Dinkel's claims and
possible acquittal that Dinkel asserted. In fact, we question how [defense counsel's] argument did
anything but inject confusion into the jury's decision-making. When reading the
instructions, the trial judge told the jury that its "verdict must be founded entirely upon
the evidence admitted and the law as given in these instructions." As
we have noted, nothing in those instructions allowed the jury to find Dinkel not guilty if
it believed her version of events. So a statement telling the jury that it did not have to find
Dinkel guilty because that "didn't make sense" was bound to muddy up the deliberative
waters.</p><p>It appears [defense counsel] did not know the voluntary act requirement existed or, if he did,
he overlooked it. But this does not excuse his missteps. In <i>State v. Davis</i>, this court held
that counsel's performance had been deficient when "he was unaware of the proper legal
standard for a defense of mental disease or defect" and, consequently, "did not adequately
prepare for trial." 277 Kan. 309, 327, 85 P.3d 1164 (2004). Similarly, here, [defense counsel] neglected the voluntary act requirement and, consequently, forged ahead with a defense
that held no legal significance.</p></blockquote><p></p><p>The KSC went on to hold that the deficient performance prejudiced Ms. Dinkel's defense:</p><p></p><blockquote>The failure to give the jury the tools it needed to apply Dinkel's defense against the
State's case made it impossible to achieve the fundamental fairness we expect in a
criminal trial. The instructions told the jury the State had to prove Dinkel knowingly
engaged—meaning she was aware of her conduct—in sexual intercourse with K.H.
between November and March while K.H. was less than 14 years old. Dinkel admitted to
at least one instance of sexual intercourse with K.H. during this time. She also testified
that K.H. forcibly raped her during their first sexual encounter while she just "lied there"
and presented evidence to support this claim. But no instruction told the jury that Dinkel
was not guilty if she was forcibly raped. Because we generally presume juries follow
instructions, <i>State v. Race</i>, 293 Kan. 69, 77, 259 P.3d 707 (2011), the absence of an
instruction permitting the jury to apply Dinkel's defense was prejudicial. Without it,
Dinkel's testimony secured her conviction for at least one of the charges. </blockquote><p></p><p>As a result, the KSC reversed and remanded for a new trial.</p><p>[Update: according to <a href="https://hayspost.com/posts/c0ca8619-cda1-4950-a9e1-d413f4983cfe">this</a> Hays Post article, on remand, Ms. Dinkel entered into a no contest plea to contributing to a child's misconduct, with a maximum sentence of 23 months in prison].</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-63252276063569604692021-10-23T10:04:00.001-05:002022-07-01T10:11:37.197-05:00Potential for incorrect criminal history requires remand<p>Peter Maharry won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/123386.pdf?ext=.pdf">State v. Aschenbrenner</a></i>, No. 123,385 (Kan. App. October 1, 2021) (unpublished), obtaining a remand with directions in a Thomas County burglary prosecution. Mr. Aschenbrenner argued that his original 2020 sentences were illegal because his criminal history score of C included a prior juvenile adjudication of criminal threat, and the PSI did not reflect whether the adjudication was based on the intentional or reckless version of the offense. The state argued Mr. Aschenbrenner’s illegal sentencing claim was barred because he agreed to his criminal history score on the record at sentencing. </p><p>The COA disagreed with the state holding that Mr. Aschenbrenner’s stipulation to does not prevent the it from reaching the claim on appeal. Addressing the merits of the claim, the COA determined:</p><p></p><blockquote>If the adjudication is not included in Aschenbrenner’s criminal history, then his criminal history score would be F . . . Thus, if Aschenbrenner committed the reckless version of criminal threat, then his sentence for each burglary conviction does not conform to the applicable statutory provision and is, in fact, illegal.</blockquote><p></p><p>The COA declined to vacate Mr. Aschenbrenner’s sentences because the PSI did not establish which version of criminal threat was committed in the prior juvenile adjudication. Instead, the COA remanded with directions to the district court to determine whether the prior juvenile adjudication was based on the intentional or reckless version of criminal threat. The COA further directed the district court to vacate Mr. Aschenbrenner’s sentences and resentence him using the correct criminal history score if the state is unable to show that the juvenile adjudication was based on the intentional version of the offense.</p><div>[Update: the state did not file a PR and the mandate issued on November 9, 2021.]</div>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-78700094823809412192021-10-23T09:56:00.007-05:002022-07-01T10:03:01.702-05:00District court must inquire into conflict claims underlying plea withdrawal request<p>Jacob Nowak won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/123239.pdf?ext=.pdf">State v. Ramsey</a></i>, No. 123,239 (Kan. App. October 1, 2021) (unpublished), obtaining reversal and remand with directions from summary dismissal of a plea withdrawal motion in a Sedgwick County robbery prosecution . Mr. Ramsey argued that the district court was required to appoint him counsel and hold an evidentiary hearing for two reasons: (1) he received ineffective assistance from counsel who was unprepared to go to trial, forcing Ramsey to accept a plea; and (2) he was denied his right to conflict-free counsel.</p><p>The COA noted that if the district court fails to fully investigate the basis for the claim and the necessary facts justify appointing new counsel, then the district court abuses its discretion. The COA reviewed the record and determined:</p><p></p><blockquote>Because the district court did not inquire further about these concerns, it abused its discretion as a matter of law by failing to ensure Ramsey was represented by competent, conflict-free counsel.</blockquote><p></p><p>The COA reversed the district court’s summary dismissal of Mr. Ramsey’s plea withdrawal motion and remanded for an evidentiary hearing on Mr. Ramsey’s plea withdrawal motion.</p><div><br /></div>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-44885145149081685702021-10-16T09:52:00.001-05:002022-06-22T10:15:44.769-05:00Victim request for leniency can be part of departure analysis<p>Peter Maharry and Patrick H. Dunn won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/120134.pdf?ext=.pdf">State v. Bliss</a></i>, No. 120,134 (Kan. App. September 24, 2021), obtaining reversal of one count in a multi-count Sedgwick County domestic violence prosecution. The state charged Mr. Bliss with two alternative counts of aggravated kidnapping. The jury returned a guilty verdict for both counts. Then the district court entered judgments of conviction on both counts as independent charges and imposed concurrent sentences of 84 months’ imprisonment with the sentence on one count held in abeyance.</p><p>On appeal, Mr. Bliss argued the state presented insufficient evidence to convict him on the first count of aggravated kidnapping. The state conceded the evidence was insufficient to support that conviction. However, the COA considered an "additional and fundamental error" with that conviction: “Because Bliss was charged with the two counts of aggravated kidnapping in the alternative, he could not be convicted and sentenced on both charges.”</p><p>The COA cited <i>State v. Vargas</i>, 313 Kan. 866, 867, 492 P.3d 412 (2021) noting that when jury verdicts are returned and entered for both alternative charges, the verdicts are merged as a matter of law resulting in only one conviction and sentence. The COA resolved both Mr. Bliss’s challenge to the sufficiency of the evidence in the first count and the conviction’s fundamental error:</p><p></p><blockquote>We thus remand this case to the district court with directions to enter an amended journal entry correctly reflecting that Bliss’ conviction on Count 4 has merged into his conviction for aggravated kidnapping and a single 84-month sentence, effectively reversing one of his convictions for that offense and vacating one of his sentences.</blockquote><p></p><p>The state had also appealed a durational departure granted in this case. The presumptive sentencing range was 203 to 226 months. The district court granted a durational departure to 84-months, relying on the victim's request for leniency and finding that Mr. Bliss did not have a history of committing violent crimes. The COA affirmed:</p><p></p><blockquote><p>The State attempts to sidestep these weighty considerations, arguing that—under
the first step in our analysis—the district court erred as a matter of law when it
42
considered M.B.'s request for leniency as a potential reason to depart. The State argues,
based on the Kansas Supreme Court's decision in <i>Hines</i>, that a victim's request for
leniency should never serve as a substantial or compelling reason to depart from a
presumptive sentence in a case involving domestic violence. We do not read <i>Hines</i> so
broadly.</p><p>. . . .</p><p>The State also asserts that the absence of violent criminal convictions can never
justify a departure because a defendant's criminal history score already accounts for prior
convictions. It is true that a district court may not justify a departure solely based on a
criminal history score or factors the Sentencing Guidelines already have taken into
account, such as "the difference in character between a defendant's past offenses and the
present offense." But a court may consider a
defendant's lack of violent history, in conjunction with other potentially mitigating
factors, to determine whether the reasons given "'when considered as a whole, constitute
substantial and compelling circumstances justifying departure.'"</p></blockquote><p></p><p>Because the COA held that the district court's bases for departure were proper, it affirmed the durational departure.</p><p>[Update: the KSC denied both the state's and Mr. Bliss' petitions for review on February 1, 2022 and the mandate issued on May 5, 2022].</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-1514575612248857152021-10-13T17:17:00.010-05:002021-10-15T14:37:14.455-05:00District Court not barred from considering on remand new video evidence that substantially impacts motion to suppress<p>Randall Hodgkinson won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/122959.pdf?ext=.pdf">State v. Thompson</a></i>, No. 122,959
(Kan. App. Sept. 10, 2021)(unpublished), obtaining reversal and remand in a Reno county drug
possession prosecution on a suppression issue. The case arose when a deputy pulled Mr. Thompson over for allegedly failing to yield to the deputy’s
emergency-lighted vehicle. A search after that stop discovered drugs. At the
district court, Mr. Thompson filed a motion to suppress asserting the deputy’s
emergency lights were not on when he passed the vehicle, meaning the officer
did not have cause for the traffic stop. Mr. Thompson testified that when he
passed the deputy’s vehicle he had not emergency lights on. The deputy
testified, however, that he had his rear emergency lights on after finishing
another traffic stop. While camera footage from the front of his vehicle showed
no visible flashes of red and blue lights, despite it being pitch black outside
that night, the officer said the lights were not visible from the front.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">The district court initially
ordered suppression, but the State filed an interlocutory appeal. A panel of
the Court of Appeals then reversed, saying the district court’s written order
still stated that deputy’s rear lights were on, and the deputy’s testimony
supported that finding, justifying the stop. The panel in that appeal rejected
Mr. Thompson’s argument that the district court had, in fact, found Mr. Thompson’s
testimony that the emergency lights were off more credible than the deputy’s
testimony. On remand, Mr. Thompson renewed his suppression issue after
discovering at the bench trial that a camera from the deputy’s vehicle
contained a 360-degree view which showed the emergency lights were off, but the
district court found it could not consider that evidence based on the mandate
from the first appeal. Mr. Thompson was convicted of drug crimes following the
bench trial. <o:p></o:p></p>
<p class="MsoNormal">On the second appeal, a
second COA panel held the district court was not barred considering the
suppression issue based upon the new evidence. The panel first noted that the
district court incorrectly viewed the previous appellate mandate as restricting
its ability to consider the new evidence. In particular, the mandate from the
first case, which reversed the district court's order of suppression and
remanded the case for further proceedings, did not prevent the district court
from considering the issue anew given the new evidence presented. The panel further
rejected the State’s argument that res judicata barred reconsideration of the
issue, as the doctrine does not apply to proceedings following remand from a
prior appeal. Likewise, law of the case did not preclude consideration of the
issue because it arose upon new evidence developed upon remand. Finally, the
panel rejected the argument that K.S.A. 22-3216 required Mr. Thompson file a second
motion to suppress, noting that Mr. Thompson’s arguments were the same as in
his original motion, and a court may re-entertain a motion to suppress based
upon new evidence produced at trial. The panel, thus, reversed and remanded the
case with direction for the district court to consider Mr. Thompson’s renewed
motion to suppress in light of the new camera footage. <o:p></o:p></p>Clayton Perkinshttp://www.blogger.com/profile/14852653058745434606noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-68619439538049470222021-10-13T15:46:00.003-05:002022-07-08T15:16:07.798-05:00Failure to adequately investigate and present available defense challenging State’s central theory of case is ineffective assistance of counsel requiring new trial [PR GRANTED]<p> <span style="font-family: inherit;">William J. Skepnek, of The Skepnek
Law Firm, P.A., of Lawrence, Keynen J. (K.J.) Wall, Quentin M. Templeton, and
Russell J. Keller, of Forbes Law Group, LLC, of Overland Park, Stephan L.
Skepnek, of The Sader Law Firm, of Kansas City, Missouri, and Kevin Babbit, of
Fagan & Emert, LLC, of Lawrence, Kansas won in </span><i style="font-family: inherit;"><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/122252.pdf?ext=.pdf">State v. Buchhorn</a></i><span style="font-family: inherit;">, No.
122,252 (Kan. App. August 13, 2021) obtaining a new trial in a Douglas County
second-degree murder prosecution.</span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk85030887;"><span style="font-family: inherit;">The case involved
the death of a nine-month old child. Ms. Buchhorn worked at the daycare where
the child died. She was the last person who admitted to having contact with the
child, but consistently denied harming the child. The State charged Ms.
Buchhorn with first-degree murder. <o:p></o:p></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk85030887;"><span style="font-family: inherit;">The State’s theory
of prosecution at trial relied on then Douglas County Coroner Erik Mitchell,
who performed the autopsy:<o:p></o:p></span></span></p>
<p class="MsoNormal" style="margin-left: 0.5in;"><span style="font-family: inherit;"><span style="mso-bookmark: _Hlk85030887;"><span style="color: #212121; line-height: 107%;">Dr. Mitchell's autopsy
revealed that O.O. had suffered a significant </span></span><span style="mso-bookmark: _Hlk85030887;"><span style="line-height: 107%;">skull fracture<span style="color: #212121;"> but
no brain swelling. Dr. Mitchell deduced that O.O. died instantly following a
blow to the head, which he claimed released mechanical energy into the base of
the brain causing ‘temporary cessation of function at the base of the brain’ or
‘depolarization of neurons.’ He suspected that O.O. was stepped on.<o:p></o:p></span></span></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk85030887;"><span style="font-family: inherit;">At trial, Buchhorn’s
counsel presented testimony from forensic pathologist Dr. Carl Wigren that the
skull fracture showed signs of healing, meaning the injury was a few days to a
week old, and the cause of death was unknown. The defense did not directly
address Dr. Mitchell’s “depolarization theory”. Ms. Buchhorn was convicted of
the lesser-included offense of reckless second-degree murder. <o:p></o:p></span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;">Following the
verdict, Ms. Buchhorn obtained new counsel who moved for a new trial arguing, <i>inter
alia</i>, that her previous counsel provided ineffective assistance of counsel
by failing to adequately investigate and challenge Dr. Mitchell’s dubious
forensic testimony. To support those claims, the defense presented new medical expert
testimony, including Dr. Sudha Kessler, a pediatric neurologist who had
extensive experience treating pediatric brain injuries, who explained the “depolarization
theory” was unreliable:<o:p></o:p></span></p>
<p class="MsoNormal" style="margin-left: 0.5in;"><span style="mso-bookmark: _Hlk85030887;"><span style="font-family: inherit;">[Dr.
Mitchell's theory is] just fantastical, because it's not something I have ever
been taught, not something I teach, not something—just not consistent. It's not
consistent with the medical literature because there is no literature on magical
disruption of the brain that causes death and that doesn't exist. In addition
to looking though my own textbooks, looking through the two database searches I
did, I was so taken aback by all this that I ... [asked] my colleagues if they
have heard of this idea; and honestly, most of the time, the response that I
got was laughter.<o:p></o:p></span></span></p>
<span style="font-family: inherit;"><span style="mso-bookmark: _Hlk85030887;"></span>
</span><p class="MsoNormal"><span style="font-family: inherit;">The defense further presented testimony from Alice Craig, a
professor at the University of Kansas School of Law and attorney at the Paul E.
Wilson Project for Innocence & Post-Conviction Remedies, who opined that given
Dr. Mitchell’s testimony on the “depolarization theory” at the preliminary
hearing raised questions on its validity, reasonable counsel would have
investigated the basis for the theory, recognized it was dubious, and challenged
it directly. The district court denied the motion for new trial, noting Ms. Buchhorn’s
trial counsel had considerable experience, and had prepared what was
potentially a winning strategy at trial.<o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: inherit;">The COA reversed the district court, holding, under the <i>Strickland
v. Washington</i> standard, that Ms. Buchhorn’s trial counsel ineffective and
prejudiced her right to a fair trial in these circumstances. The failure to
investigate the “depolarization theory” was objectively unreasonable given that
it was clearly established as central to the State’s case prior to trial, and
minimal investigation would have established its dubious nature. Therefore, the
defense utilized by counsel at trial was not a strategic decision, but one
based on a failure to investigate other available defenses. The COA explained:<o:p></o:p></span></p>
<p class="MsoNormal" style="margin-left: 0.5in;"><span style="font-family: inherit;">The trial court erred in finding
it was reasonable for Buchhorn's counsel to rely upon Dr. Wigren to define the
medical issues they needed to address. The ultimate control of a case rests
with the lawyers and not the expert witnesses. It is incumbent upon the lawyers
to define clearly for the experts the scope of their assigned tasks. Here, the
communication channel broke down. The lawyers expected Dr. Wigren to tell them
everything they needed to know about O.O.'s death and Dr. Mitchell's theory on
causation. Dr. Wigren, however, apparently understood his engagement far more
narrowly and offered an expert opinion on the skull fracture and possible
causes of death rather than a critique of Dr. Mitchell's theory.<o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: inherit;">The COA further explained that while the decision to hire
Dr. Wigren may have been reasonable to contest the timing of the skull
fracture, the failure to reasonably investigate, and to present expert
testimony challenging the State’s dubious central theory of the case was not. The
COA further found Ms. Buchhorn’s defense was prejudiced by these failures given
that the lack of any physical evidence tying her to the death meant the case
hinged on the credibility of Dr. Mitchell’s “depolarization theory”, and
evidence could have been presented establishing its dubious nature. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: inherit;">[Update: the state filed a petition for review on September 7, 2021.]</span><o:p></o:p></p><p class="MsoNormal">[Further update: the KSC granted the state's PR on November 24, 2021.]</p>Clayton Perkinshttp://www.blogger.com/profile/14852653058745434606noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-4642443590050733412021-09-09T13:11:00.004-05:002021-10-15T14:36:30.897-05:00Failure to give jury instruction on non-exclusive possession of a vehicle requires new trial. <p> Randall Hodgkinson and Washburn student intern (now Wichita PD) Daniel Beall-Hall won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/122583.pdf?ext=.pdf">State v. Douglas</a></i>, No.
122,583 (Kan. App. Aug. 6, 2021)(unpublished), obtaining a new trial in a Reno County
prosecution for possession of methamphetamine and possession of drug
paraphernalia. The case arose in 2017 when a deputy stopped Mr. Douglas for speeding. Mr. Douglas was driving a truck that belonged
to a contractor he worked for, which four or five other employees also
regularly drove. While searching the truck the deputy found a clear pill
containing methamphetamine as well as a spoon and syringe. The deputy would
testify at trial that he saw the pill fall from Mr. Douglas’ pocket, while Mr.
Douglas would testify that there was no pill in his pocket at all. Consistent
with his defense that the pill and paraphernalia belonged to one of the other
users of the truck, Mr. Douglas requested a jury instruction on non-exclusive
possession of the vehicle (See PIK Crim. 4th 57.040), which the district court
denied. The COA found the failure to give the instruction was
erroneous:</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 0.5in; text-align: left;">A criminal defendant generally is
entitled to an instruction on the law applicable to his or her theory of
defense if the instruction would be both legally and factually appropriate.
State v. Dupree, 304 Kan. 377, 397, 373 P.3d 811 (2016). Douglas' sole defense
at trial was that the methamphetamine and drug paraphernalia found in the truck
must have belonged to another person with access to the truck. Based on the
record before us, Douglas' requested instruction on nonexclusive possession was
legally and factually appropriate and the district court erred by failing to
give the instruction.<o:p></o:p></p>
<p class="MsoNormal">In finding the error required a new trial, the COA emphasized the factual dispute over where the pill was located:<o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 0.5in; text-align: left;">Douglas' entire defense at trial
was that the methamphetamine and drug paraphernalia found in the truck must
have belonged to another person with access to the truck, and there was
evidence at trial that supported this defense. Douglas had a right to receive
his requested jury instruction on nonexclusive possession of the vehicle, and
we conclude the State has failed to meet its burden of showing that the
instructional error was harmless.</p><p class="MsoNormal" style="margin-left: 0.5in; text-align: left;">[Update: the state did not file a PR and the mandate issue on September 15, 2021.]</p><p class="MsoNormal" style="margin-left: 0.5in; text-align: left;"><br /></p>Clayton Perkinshttp://www.blogger.com/profile/14852653058745434606noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-76343809630032102982021-09-04T14:21:00.002-05:002021-10-15T14:34:17.622-05:00No evidence of provocation to support attempted manslaughter conviction<p>Peter Maharry won in <a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/121942.pdf?ext=.pdf"><i>State v. Boldridge</i>,</a> No. 121,942 (Kan. App. August 13, 2021)(unpublished), obtaining reversal in a Atchison County attempted voluntary manslaughter prosecution. The prosecution stemmed from an Atchison police officer's investigation of potential theft of services and the resultant exchange of gunfire between between Mr. Boldridge and the officer. In particular, Mr. Boldridge argued that there was no evidence in the record to support a finding of provocation required for the form of attempted voluntary manslaughter as the jury was instructed. Mr. Boldridge argued that he could not have been acting with legally sufficient provocation because he was reacting to an attempt to make an arrest, which cannot be lawfully resisted, even if the arrest itself is unlawful. The COA reluctantly agreed:</p><p></p><blockquote>We find Boldridge's argument is correct even if the result it mandates feels wrong.
Generally, the existence of legally sufficient provocation would make Boldridge's actions
less culpable, i.e., the jury could convict him of attempted voluntary manslaughter as
opposed to attempted second-degree murder. But, the jury had the option to convict
Boldridge of attempted second-degree murder and declined to do so. Its verdict,
therefore, stands or fails based on the sufficiency of the evidence for attempted voluntary
manslaughter. Our role is to resolve issues of law, not questions of fact or matters of
equity. Here, an essential element of the offense—legally
sufficient provocation—is lacking.</blockquote><p></p><p>The COA rejected the state's primary claim that Mr. Boldridge was barred from raising this issue because it was invited error. Recognizing that there is a difference between an instructional issue and a sufficiency issue, the COA reiterated that the state has to prove every element of the charged crime, regardless of the requested instructions. As a result, the COA reversed the attempted voluntary manslaughter conviction.</p><p>[Update: the state did not file a PR and the mandate issued on September 21, 2021.]</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-29482664177320739562021-08-28T13:56:00.003-05:002021-10-15T14:19:37.439-05:00Clear error plus?<p>Michelle A. Davis won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/119764_1.pdf?ext=.pdf">State v. Tommy Jones</a></i>, No. 119,764 (Kan. August 6, 2021), obtaining reversal of two counts in a Sedgwick County sexual exploitation of a child prosecution. The state had charged Mr. Jones in two counts with ""promot[ing] any performance that includes sexually explicit conduct by a child under eighteen (18) years of age . . . knowing the character and content of the performance." But the jury instructions only required the state to prove he "persuaded, induced, or enticed the child victim to engage in sexually explicit conduct 'with the intent to promote a performance.'" Unsurprisingly, the state admitted that the instructions for these two counts were legally erroneous.</p><p>The real question on appeal was whether the error required reversal. Because the instructions were not objected to below, the COA held they were not clearly erroneous. And this is the interesting aspect of this case--the ongoing difficulty squaring clear error review with the constitutional harmless error test. The KSC recognized that omission of an essential element is a significant constitutional error, which normally would trigger application of the constitutional harmless error test. But it went on to hold, in form at least, that because the error was not raised at the district court, the clear error test for instructional errors should apply. But it went on to find that the error was reversible in this case in terms that sound a lot like constitutional harmless error review: </p><p></p><blockquote>The overlap of "sexy" with "sexually explicit conduct" is not so complete as to warrant our firm belief, on appellate review, that the error had little likelihood of changing the result at trial.</blockquote><p></p><p>In its discussion of the proper reversal standard, the KSC cited <i>State v. Daniels</i>, 278 Kan. 53, 58-63, 91 P.3d 1147 (2004) as reviewing the omission of an element for clear error, but noting the need to evaluate harmlessness under the test set forth in <i>Neder v. United States</i>, 527 U.S. 1, 17 (1999). So it may be that for some significant constitutional instructional errors, although appellate courts are still called to conduct clear error review for reversal, it may be a slightly more robust species of clear error.</p><p>As an aside, the reversal of these two counts led to the reinstatement of two other counts that had been vacated by the COA as multiplicitous, so it is not clear if this decision will impact Mr. Jones' sentence that much. But keep it in mind when thinking about reversal standards for instructional issues involving constitutional error.</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-63754318575071765832021-08-07T12:42:00.004-05:002021-08-10T15:06:08.549-05:00Insufficient evidence that offenses of conviction were sexually motivated<p>Meryl Carver-Allmond won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/122413.pdf?ext=.pdf">State v. Rinke</a></i>, No. 122,413 (Kan. July 30, 2021), reversing the district court's finding that Mr. Rinke's crime was sexually motivated requiring him to register as a sex offender in a Johnson County murder prosecution. After pleading guilty to felony murder and aggravated kidnapping, when sentencing Mr. Rinke, the district court also made findings that the offenses were sexually motivated. On appeal, Mr. Rinke argued that any sexual acts were unrelated to the offenses of conviction. Reviewing the record for substantial competent evidence, the KSC found the record was insufficient to support the district court's finding:</p><p></p><blockquote>The plain language of K.S.A. 2020 Supp. 22-4902(c)(18) defeats the State's other
argument that crimes following sex need be intertwined only with the sex act to be
considered crimes performed for sexual gratification. The statutory language does not say
that an unlisted nonsex crime need only be temporally or otherwise intertwined with an
act that led to sexual gratification. Instead, it requires that Rinke committed felony
murder and kidnapping "for the purpose of the defendant's sexual gratification." K.S.A.
2020 Supp. 22-4902(c)(18). No evidence suggests Rinke murdered and kidnapped J.P.
for the purpose of a sexual reward, so he would reach the state of being sexually gratified,
or because those crimes gave him a source of sexual satisfaction or pleasure.</blockquote><p></p><p>As a result, the KSC reversed the order for sex offender registration.</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-21336142724521408772021-07-09T10:39:00.010-05:002021-08-16T15:13:35.982-05:00Self-Defense Dismissal Affirmed<p>Jess W. Hoeme, and Carrie E. Parker, of Joseph, Hollander
& Craft LLC, of Topeka, won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/122268.pdf?ext=.pdf" target="_blank">State v. Betts</a></i>, No. 122,268 (Kan. App. June
18, 2021) affirming Judge O’Connor’s finding that Mr. Betts was entitled to self-defense
immunity in a Sedgwick County reckless aggravated battery prosecution. The
prosecution stemmed from events where Mr. Betts - then a Wichita Police Officer
- fired two shots at a lunging dog after entering a home during an investigation.
Mr. Betts’ shots missed the dog, but fragments from one of the bullets
ricocheted and hit a young girl in the eyebrow and toe. The state charged Mr.
Betts with reckless aggravated battery.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">The district court granted Mr. Betts’ pre-trial motion for
self-defense immunity, holding that he met the standard for both a subjective
and objectively reasonable belief that use of deadly force was justified. In
affirming, the COA noted that the material facts were not in dispute, and that
the state had waived any argument that the lunging dog was not unlawful force
for purposes of the self-defense statutes. Following the opinion in <i>State v.
Bowers</i>, 239 Kan. 417, 425, 721 P.2d 268 (1986), and noting testimony that
the Wichita Police Department policy authorized use of force against animals
and “it was not uncommon for an officer to use their weapon against a dog”, the
COA recognized that attacking dogs can qualify as deadly force supporting a
subjective and objectively reasonable use of deadly force under the self-defense
statutes. The COA further rejected the State’s arguments that self-defense was
unavailable for reckless crimes, noting that reckless behavior requires a
person <i>unjustifiably</i> disregarded a danger, and self-defense acts as a
justification. The COA clarified that the self-defense immunity statute can
apply “regardless of whether the State has charged conduct that is intentional,
knowing, or reckless.”<o:p></o:p></p>
<p class="MsoNormal">Looking into the limited data on police / dog interactions,
it appears that the encounters are significantly more deadly for the dog than
the officers. While there are no official national statistics, the Department
of Justice <a href="https://www.policefoundation.org/publication/reducing-dog-shootings-in-routine-police-encounters-regulations-policies-practices-and-training-implications/" target="_blank">published a report</a> estimating that 20 - 30 dogs are killed by police
each day in the U.S., or between 7,300 – 10,950 a year. The National Law Enforcement
Memorial Fund does not include dog attack as the cause of death for any officer
between 2010 and 2020, and their database of narrative descriptions of on-duty
deaths comes up with no results when searching for “dog” or “canine” [However,
searching for “horse” found over 50 deaths related to horse accidents going
back to the 1700’s]. Nationally, there was <a href="https://nationalcanineresearchcouncil.com/wp-content/uploads/2015/09/Update-Dog-Bite-Related-Fatalities-In-The-United-States-2000-2015_0.pdf" target="_blank">an average of 29.1 dog bite relateddeaths per year</a> between 2000 and 2015. In comparison, <a href="https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6829a5-H.pdf" target="_blank">bee stings caused anaverage of 62 deaths per year</a> between 2000 and 2017.</p><p class="MsoNormal">[Update: The State filed a petition for review on July 15, 2021.]</p><p class="MsoNormal"><o:p></o:p></p>Clayton Perkinshttp://www.blogger.com/profile/14852653058745434606noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-86746058395209542692021-06-25T09:50:00.004-05:002021-06-25T09:52:53.252-05:00Governor grants clemency to 8<p><a href="https://kansasreflector.com/2021/06/24/kansas-governor-grants-clemency-to-8-embracing-political-risk-in-rare-use-of-power/">Here</a> is a Kansas Reflector article reporting that Governor Kelly granted clemency to eight people last week. The article has some nice background on the recipients and also some historical information about clemency practice in Kansas.</p><p>As noted in the article, grants of clemency can be risky for politicians:</p><p></p><blockquote><p>“There is some political risk in doing this,” the governor said. “Your opponent, given the opportunity, can and will use it against you if somebody you pardon does something wrong. So I think governors tend to weigh the political risk pretty heavily, because there is a downside.”</p><p>Still, she said, “we have to realize that we’re dealing with human beings here.”</p></blockquote><p>As noted in the article, there has not been a lot of success in the pardon/commutation world in Kansas in recent decades. But this might be a sign that defenders should not forget about this option for clients with stories of procedural injustice that cannot be remedied by the court system. </p><p></p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-45064587722997301982021-06-25T09:23:00.001-05:002021-06-25T09:24:33.481-05:00Wichita defense lawyer wins acquittal in international criminal tribunal<p><a href="http://warriorlawyers.com/kurt-p-kerns/">Kurt P. Kerns</a> won an acquittal for his client, Dick Prudence Munyeshuli, in an international criminal tribunal in Arusha, Tanzania. As described in the judgment <a href="https://www.irmct.org/sites/default/files/attachments/articles/210625-Nzabonimpa-Summary-of-Judgement.pdf">here</a>, his client was charged with contempt for allegedly improperly revealing the identities of protected witnesses and having improper conduct with protected witnesses in a previous international criminal prosecution. The judge found that although Mr. Munyeshuli had some culpability, the prosecution had not proved its case:</p><p></p><blockquote>The evidence presented by the Defence reflects that Mr. Munyeshuli’s Lead Counsel, Mr.
Peter Robinson, instructed him to commit the violation at the heart of this charge. Mr. Munyeshuli
deserves a warning for his conduct in these circumstances and not a criminal conviction. I am entering a
finding of NOT GUILTY for Mr. Munyeshuli under Count 3 of the Nzabonimpa Indictment. </blockquote><p></p><p>Congratulations and great work, Kurt!</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-42012964403130237512021-05-29T10:33:00.002-05:002021-06-07T10:44:30.443-05:00Failure to give requested involuntary manslaughter instruction requires new murder trial<p>Korey A. Kaul won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/121284.pdf?ext=.pdf">State v. Nunez</a></i>, No. 121,284 (Kan. May 14, 2021), obtaining a new trial in a Sedgwick County first-degree murder prosecution. Although the KSC held that the district court had sufficient evidence to overcome Mr. Nunez' immunity claim, it went on to hold that the district court improperly refused to give a requested instruction for involuntary manslaughter as a lesser included offense. The district court gave instructions on lessers for second-degree intentional murder and voluntary manslaughter and on self-defense. But the district court refused to give Mr. Nunez' requested instruction for involuntary manslaughter-excessive force, holding that, because . The KSC applied its recent cases to hold that a defendant need not concede that a killing was reckless or unintentional to get an instruction on involuntary manslaughter-excessive force. The KSC went on to hold that the requested instruction was factually appropriate in this case:</p><p></p><blockquote>Here, the evidence that Nunez possessed a reasonable and honest belief in the
necessity of physical force to defend himself or his property, at least initially, was
substantial. One testifying witness from the scene stated that Guzman had taken Nunez
by the neck and was holding a blade to him, a blade that may have left the mark on
Nunez' neck that was noted by law enforcement. Nunez repeatedly told law enforcement
officers that Guzman had attacked him with a knife. Although it was not a kitchen knife,
as described by Nunez, a boxcutter was found close to Guzman's body. And Nunez told
the 911 dispatcher that it was a situation of either Nunez or Guzman surviving the attack. </blockquote><p></p><p>Finally, the KSC addressed whether the error in this case was harmless:</p><p></p><blockquote>If the jury accepted parts of
Nunez' theory of his defense that were supported by the evidence, it could conclude that
Nunez was afraid for his life after being attacked by a knife-wielding assailant. Although
a third party pulled Guzman off of Nunez, causing Guzman to fall down, in the short time
that followed, Nunez might well have been afraid for his life, fearing that Guzman would
stand back up and renew his attack, possibly using the nearby boxcutter. Nunez
repeatedly told police that he saw Guzman reaching for a knife even while he was
wounded and on the ground. The excessive force would consist of fatally shooting an
assailant three times while the assailant was falling down or lying on the floor, but such a
scenario is what imperfect self-defense is intended to address.</blockquote><p></p><p>As a result, the KSC reversed and remanded for a new murder trial. </p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-69080068200263664292021-05-28T22:12:00.004-05:002022-07-08T15:19:06.785-05:00Double rule applies when separate complaints are consolidated for trial<p>Reid T. Nelson and Debra J. Wilson won in <a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/120587.pdf?ext=.pdf"><i>State v. Dixon</i>,</a> No. 120,587 (Kan. App. May 14, 2021), obtaining a new sentencing hearing in a Sedgwick County prosecution for aggravated kidnapping, rape, and other charges stemming from two consolidated cases. The COA affirmed Mr. Dixon's convictions, but took issue with the sentencing procedure. In this case, two separate cases, each involving multiple charges, were consolidated for trial. At sentencing, the district court set a base sentence of 653 months in the first complaint and additional consecutive sentences from that charging document for a total of 1,157 months. The district court also set a base sentence of 653 months in the second complaint and additional consecutive sentences from that charging document for a total of 888 months. The district court ran the sentences from the two cases consecutively for a total controlling sentence of 2,045 months.</p><p>Under K.S.A. 21-6819(b)(4), the "total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence." This is sometimes know as the "double rule." By its terms, it only applies to multiple convictions arising from a single complaint. Even where cases are consolidated for trial, the statute would purport to result in two base sentences and two applications of the double rule.</p><p>Mr. Dixon challenged this construction of the statute as unconstitutional under the Equal Protection Clause and the COA agreed:</p><p></p><blockquote><p>Dixon's argument that the double rule distinguishes between "arguably
indistinguishable" classes has merit. Essentially, both classes of defendants Dixon
identifies proceed to one trial on multiple charges that "are of the same or similar
character or are based on the same act or transaction or on two or more acts or
transactions connected together or constituting parts of a common scheme or plan." But
only defendants who have all the crimes brought in one charging document can benefit
from applying the double rule to all the convictions together. Defendants who have
crimes filed in separate charging documents consolidated for trial cannot benefit from
applying the double rule to all the convictions together. The only difference between
these two classes of defendants is whether there is one case number or two. </p><p>We find that the double rule treats arguably indistinguishable classes of defendants
differently. </p></blockquote><p></p><p>The COA next considered whether such disparity could stand in light of the low "rational basis" test for Equal Protection challenges. The COA noted that, if Mr. Dixon could benefit from the double rule on his entire sentence, his maximum sentence would have been 1,306 months. Instead, because he was charged in two complaints instead of one, he received a sentence of 2,045 months. </p><p></p><blockquote>We are mindful that the rational basis test is a very lenient standard and a statute
must be enforced as written "if any state of facts reasonably may be conceived to justify
it." But we are unable to find that the strict application of K.S.A.
2020 Supp. 21-6819(b)(4) to Dixon's cases implicates any legitimate sentencing goal. As
a result, we find that the statute, as applied to Dixon's cases, does not pass rational basis
scrutiny. Thus, we conclude that the double rule found in K.S.A. 2020 Supp. 21-
6819(b)(4), as applied to Dixon's cases, violates his equal protection rights under the
Fourteenth Amendment.</blockquote><p></p><p>The COA went on to hold that the proper remedy was to extend the protection of the double rule to all of Mr. Dixon's sentences.</p><p>[Update: Mr. Dixon filed a petition for review from the affirmance of his convictions on June 4, 2021.]</p><p>[Further update: the state filed a cross-petition for review on July 1, 2021.]</p><p>[Further update: the KSC denied both the state and Mr. Dixon's PRs on September 27, 2021.]</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-38037187482049882192021-05-22T10:24:00.003-05:002021-08-10T15:06:35.838-05:00Appellate court should not make criminal history findings<p>Michelle A. Davis won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/122818.pdf?ext=.pdf">State v. Rankin</a></i>, No. 122,818 (Kan. App. April 30, 2021), obtaining a remand for determination of whether a prior crime was a person felony. On appeal, Mr. Rankin sought to challenge a prior juvenile adjudication used in his criminal history calculation score under <i>Boettger. </i>In response, the state sought to prove that the prior adjudication was for intentional criminal threat asking the appellate court to take judicial notice of the complaint from the juvenile case. The COA acknowledged that it could take judicial notice of the district court document, but still held that it should not make a criminal history finding on appeal:</p><p></p><blockquote><p>Here, the State is asking this court to make factual findings beyond what is
necessary to resolve a mootness issue. Although this court can take judicial notice of the
original complaint . . . we observe that this evidence
alone does not necessarily resolve whether Rankin's juvenile adjudication for terroristic
threat was based on the intentional or reckless version of the statute; the original
complaint may have been amended later in the proceedings. Rankin should receive a full
hearing in district court to resolve the issue. At such a hearing the district court should
consider all available records in [the juvenile case] including the original and any amended
charging documents, any plea agreements, transcripts of plea colloquies, findings of fact
and conclusions of law from a bench trial, and the journal entry of adjudication.</p></blockquote>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-68521106853609920172021-04-26T21:25:00.002-05:002021-04-27T09:36:20.780-05:00Credibility determinations require giving self-defense instruction<p>Michelle A. Davis won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/121181.pdf?ext=.pdf">State v. Holley</a></i>, No. 121,181 (Kan. April 23, 2021), obtaining a new trial in a Sedgwick County first-degree murder and child endangerment prosecution. At trial, Mr. Holley requested a self-defense instruction, but the district court refused because it found that Mr. Holley was committing a forcible felony. The state had conceded that the instruction should have been given, but asserted that the failure to do so was harmless. The KSC agreed that the instruction was legally appropriate under its more recent case law and that it was factually appropriate. But it disagreed that with the state that the error was harmless:</p><p></p><blockquote><p>The jury was provided
with competing narratives. According to Reed, Holley tried to rob Smith at gunpoint and
fired the initial shot. But according to Holley, Smith tried to rob Holley by grabbing his
$200-$300 cash and fired the initial shot, followed by an attempted shot that was only
prevented by Smith's gun jamming. </p><p>The physical evidence supported Holley's claim that both Smith and Holley fired
or tried to fire shots. Smith's Jimenez pistol was jammed and a live Hornady .380 auto
caliber cartridge was stuck inside the barrel. Holley admits to shooting Smith and ballistic
testing showed the Smith & Wesson Bodyguard Holley possessed at the time of his arrest
matched the projectile recovered from Smith's autopsy. </p><p>The physical evidence, however, does not establish who fired or tried to fire their
gun first. The sequence of events hinges on testimony from Reed and Holley. Thus,
whether Holley used self-defense boils down to a credibility question. Without the jury
making this credibility determination, we cannot be sure that the court's failure to instruct
the jury on self-defense did not affect the outcome of this trial. </p></blockquote><p></p><p>As a result, the KSC reversed the murder conviction and remanded for new trial. The KSC also affirmed the child endangerment conviction, holding that the state did not have to prove probability or likelihood of harm to prove child endangerment.</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-40203416917029160082021-04-26T21:11:00.002-05:002021-04-27T09:36:44.630-05:00Misstatement of law and fact require new trial<p>Jennifer C. Roth won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/118710_1.pdf?ext=.pdf">State v. Watson</a></i>, No. 118,710 (Kan. April 23, 2021), obtaining a new trial in a Wyandotte County Medicaid fraud prosecution. The charges stemmed from allegations that Mr. Watson submitted inaccurate time sheets as part of his employment with a home health-care agency. Mr. Watson admitted that the time sheets did not accurately reflect exact times of day worked, but asserted that the total time was accurate. After a jury convicted Mr. Watson, the district court ordered over $13,000 in restitution.</p><p>The COA had found one harmless prosecutorial error, but vacated the restitution order. The KSC found an additional prosecutorial error and held that the errors required reversal:</p><p></p><blockquote>The prosecutor misstated the
evidence by arguing Watson failed to provide any proof that he had worked the total
hours recorded on his time sheets, an argument that disregarded Watson's own testimony.
The prosecutor also misstated the law by arguing Watson was guilty of Medicaid fraud
based solely on his submission of inaccurate timesheets, without regard to whether
Watson had acted with intent to defraud. These errors substantially diminished, or
effectively eliminated, an essential element of the crime of conviction—the defendant's
intent to defraud Medicaid. Simultaneously, the errors undermined Watson's central
defense to this charge—that he acted without intent to defraud.</blockquote><p></p><p>The KSC clarified that proof of inaccurate time sheets only satisfied one element of the offense of Medicaid fraud, but not the culpable mental state requirement:</p><p></p><blockquote>Under the plain language of this statute, proof that a defendant made false
statements or misrepresentations to Medicaid satisfies only one element of Medicaid
fraud. To secure a conviction, the State must also prove the defendant made such false
statements or misrepresentations with the "intent to defraud." An "[i]ntent to defraud"
means "an intention to deceive another person, and to induce such other person, in
reliance upon such deception, to assume, create, transfer, alter or terminate a right,
obligation or power with reference to property." K.S.A. 2019 Supp. 21-5111(o). As used
in this definition, "deception" means "knowingly creating or reinforcing a false
impression, including false impressions as to law, value, intention or other state of mind."
K.S.A. 2019 Supp. 21-5111(e).</blockquote><p></p><p>The KSC concluded that the prosecutor's misstatement of fact and law went to the heart of Mr. Watson's defense (that he did not have intent to defraud), and therefore required a new trial.</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-69440236447732940342021-03-26T20:25:00.006-05:002022-07-08T15:20:47.523-05:00Court's mistake leads to statutory speedy trial violation<p>Peter Maharry won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/120643_1.pdf?ext=.pdf">State v. Queen</a>, </i>No. 120,643 (Kan. March 19, 2021), reversing Douglas County second-degree murder, attempted second-degree murder, and attempted voluntary manslaughter convictions. During the prosecution, at one point the district court and the prosecutor incorrectly stated that the statutory speedy trial deadline was April 30 when in fact it was March 30. The district court faulted the defense attorney for failing to inform the Court of the mistake and also held that the crowded docket exception allowed the court to extend the speedy trial period. The KSC rejected each rationale:</p><p></p><blockquote><p>Likewise, here, the appellate record does not include an order entered during the
150-day statutory period that granted a continuance based on any of the reasons
authorized in the speedy trial statute. Even so, the State argues the judge implicitly
invoked the crowded docket exception. But the overall structure of the statute supports an
interpretation that the exception applies only if the trial court enters an order deferring an
initial setting to a future date. Each exception in K.S.A. 2020 Supp. 22-3402 requires overt action on the part
of the district court and does not automatically spring into operation. </p><p>For example, K.S.A. 2020 Supp. 22-3402(a) and (b) provide an exception when
"the delay shall happen as a result of the application or fault of the defendant." Referring
to that exception, K.S.A. 2020 Supp. 22-3402(c) says that in such cases, "the trial <i>shall be</i>
rescheduled within 90 days of the original trial deadline." (Emphasis added.) Subsections
(d), (e)(1), and (e)(2) contain similar provisions if a defendant's failure to appear or
competency matters delay the trial. </p><p>But subsections (e)(3), relating to the unavailability of material evidence, and
(e)(4), relating to crowded dockets, are different. Rather than require the district court to
reschedule the trial, the statutory language provides grounds under which the court may
extend the trial time through "[n]ot more than one continuance." The use of the words "extended" and "continuance" in these exceptions is significant. It
reveals an intent by the Legislature to require an overt act—the granting of a
continuance—for the exceptions to apply. These exceptions do not automatically spring
into operation simply because of the existence of the statutory factors. </p></blockquote><p></p><p>As a result, the KSC held that the crowded docket exception did not extend the time limit beyond 150 days. The KSC also held that the record did not support a finding of acquiescence: </p><p></p><blockquote><p>Here, Queen's counsel's statement that the proposed trial date "works for defense"
was a passive response to the judge's inquiry into availability and does not rise to the
level of acquiescence to a continuance beyond the speedy trial deadline or a waiver of the
statutory speedy trial right. Under our caselaw, something more is required than this type
of passive response. </p><p>Even so, the district court judge held, and the State now contends, that defense
counsel had a duty to speak up because Kansas Rule of Professional Conduct (KRPC) 3.3
(2020 Kan. S. Ct. R. 353), imposes on Kansas attorneys a duty of candor toward the
court. KRPC 3.3 prohibits an attorney from knowingly misleading the court as to an
incorrect statement of law or fact. We first observe that the record fails to establish that
defense counsel knowingly misled the court. We also note the tension between the district
court judge's expectations of counsel and both our caselaw and defense counsel's role in
the adversarial process in a criminal case, tensions the Court of Appeals discusses. We refrain from that discussion because of the
guidance in comment 20 to the prefatory scope of the KRPC. Comment 20 instructs that a
violation of a KRPC does not create a presumption that a legal duty has been breached,
does not necessarily warrant nondisciplinary remedies, should not be used as procedural
weapons, and does not provide adversaries with standing to seek enforcement of the
rules. In other words,
nothing in the KRPC alters our longstanding caselaw that a criminal defendant has "no
obligation to take affirmative action" to protect his or her speedy-trial right.</p></blockquote><p></p><p>Because a passive response to the district court's inquiry was not acquiescence, it also did not excuse the speedy trial violation.</p><p>As a result, the KSC reversed and remanded with directions to dismiss the charges against Mr. Queen with prejudice.</p><p>[Update: this case was named the 2021 ADO case of the year!]</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-12302790054845991762021-03-06T14:49:00.009-06:002021-03-29T15:03:56.273-05:00Stand-Your-Ground ruling supported by sufficient evidence<p>Patrick H. Dunn won in <a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/121790.pdf?ext=.pdf"><i>State v. Dukes</i>,</a> No. 121,790 (Kan. App. February 12, 2021), affirming Judge Mitchell's finding that Mr. Dukes was entitled to Stand-Your-Ground immunity in a Sedgwick County voluntary manslaughter prosecution. The prosecution stemmed from an altercation where the decedent had approached Mr. Dukes in his truck, ran back to his car after Mr. Dukes displayed a handgun, and retrieved his own handgun and headed back towards Mr. Dukes' truck. Mr. Duke shot at the decedent, resulting in the decedent's death. The district court held that Mr. Dukes met the standard for both a subjective and objectively reasonable belief that use of deadly force was justified. Under the appropriate standard of review, the COA affirmed:</p><p></p><blockquote><p>In particular, the court found that Berryman had a semi-automatic weapon within
reach (under him on the passenger seat) when he returned to his car. The district court
found that this evidence and a reasonable inference therefrom—Berryman had
purposefully retrieved the gun since Lawton was in the passenger seat when Berryman drove into the parking lot—combined with Dukes' testimony that he believed Berryman
was retrieving a gun with the intent to shoot him and that Dukes saw Berryman with a
gun when Dukes drove away, were sufficient to convince a reasonable person that Dukes
acted with a reasonable belief that his life was in danger.</p><p>Having reviewed the transcript of the evidentiary hearing, we conclude there is
evidence in the record that supports the district court's finding that Dukes "waffled"—i.e.,
vacillated or flip-flopped—in his account of whether Berryman had a gun when he first
approached Dukes' truck. As the district court indicated, Dukes
initially told the police that Berryman carried a gun when he came toward the truck, but
at the hearing Dukes stated he thought he saw Berryman with a gun when Dukes was
driving out of the parking lot. The State places too fine a point on the district court's use
of the verb "waffled" (instead of using a word like "altered"), especially since the State
did not correct the court when it used the same language in its initial denial of Dukes'
request for immunity. Regardless, the district court's finding is supported by substantial
competent evidence in the record.</p><p> At its core, the State's argument is not so much a challenge to the sufficiency of
the evidence supporting the district court's finding as it is an effort to undermine to the
court's credibility assessments and weighing of Dukes' testimony against the State's
assertions that Dukes, not Berryman, was the initial aggressor in the confrontation. In its
brief, the State urges several reasons why the court should not have credited Dukes'
account of the events. But it is not our role on appeal to second-guess credibility
determinations. Instead, we must determine whether relevant and legal evidence in the
record supports the district court's factual findings.</p></blockquote><p></p><p>Because substantial evidence supported the district court's finding, the COA affirmed the dismissal.</p><p>[Update: the state filed a PR on March 4, 2021.]</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0tag:blogger.com,1999:blog-21065343.post-56715013196646301592021-02-12T20:33:00.006-06:002021-04-02T08:49:31.118-05:00Proof by clear and convincing evidence is not proof beyond a reasonable doubt<p>Randall L. Hodgkinson won in <i><a href="https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/121092.pdf?ext=.pdf">State v. Baumgarner</a></i>, No. 121,092 (Kan. App. January 22, 2021), reversing a Sumner County criminal possession of a firearm conviction. The state charged Mr. Baumgarner with possession of a firearm by a person "who is or has been . . . subject to involuntary commitment." The only evidence introduced by the state on the question of Mr. Baumgarner's status was an order from a previous commitment hearing finding, by clear and convincing evidence, that Mr. Baumgarner was such a person. The COA first held that the statute requires proof of actual status, not merely a previous adjudication: </p><p></p><blockquote>the State's position cannot be easily reconciled with the
governing statutory language in several respects. We, therefore, reject a construction of
the statute making adjudication under the Care and Treatment Act either a necessary or a
sufficient condition to convict for criminal use of a weapon. The exercise also
demonstrates why Baumgarner's take is truer to the statutory language.</blockquote><p></p><p>The COA then held that the evidence in this case, proof by clear and convincing evidence, was insufficient to support a conviction beyond a reasonable doubt:</p><p></p><blockquote><p>the only evidence the State presented bearing on Baumgarner's mental
status was a certified copy of the order of adjudication entered in 2015. And that order
included a finding by clear and convincing evidence that Baumgarner had a mental
illness permitting his involuntary commitment. Under Kansas law, clear and convincing
evidence is a degree of proof greater than a preponderance and less than beyond a
reasonable doubt. If proved by clear and convincing evidence, a fact has been
established to be "highly probable." Not to belabor the point, a "highly
probable" fact has not been proved beyond a reasonable doubt.</p><p> Accordingly, without some additional evidence, the finding in the 2015 order
adjudicating Baumgarner could not and did not prove his mental status beyond a
reasonable doubt. Jurors properly instructed on the differing burdens of proof could not
conclude otherwise. It is no rejoinder to say that the order was some circumstantial
evidence that Baumgarner may have been mentally ill beyond a reasonable doubt. In the
absence of other evidence, such an inference would be no more than unsupported
speculation or conjecture—a vaporous notion insufficient to support a criminal conviction.</p></blockquote><p></p><p>As a result, the COA reversed the conviction and sentence.</p><p>[Update: the state filed a PR on March 1, 2021.]</p>Randall Hodgkinsonhttp://www.blogger.com/profile/04429850112416642766noreply@blogger.com0