Kansas Defenders

Avoiding police is not evidence of crime [NOT FINAL]

2011-12-01T13:52:00.007-06:00

Lydia Krebs won in State v. Edwards, No. 104,034 (Kan. App. Oct. 28, 2011)(unpublished), obtaining reversal of a Johnson County felony DUI conviction. The case turned on a claim that officers did not have reasonable suspicion to detain Mr. Edwards in a Hy-Vee parking lot:

Therefore, Officer Njoroge needed reasonable suspicion of criminal activity for her initial encounter to have lawfully continued into an investigatory detention for the DUI tests. Officer Njoroge's decision to stop Edwards' car was arguably based on seven factors: (1) that Edwards' car “slowly crossed” 123rd Street; (2) that Edwards' car “accelerated quickly”; (3) that Edwards was attempting to avoid Officer Njoroge; (4) that Edwards pulled the car into a parking lot and went behind Hy–Vee; (5) that Edwards “blacked out” the car and did not park within a parking stall; (6) that there recently had been a robbery at the particular Hy–Vee; and (7) that there recently had been burglaries in the “area.”

In the case before us, none of the seven factors taken alone, or collectively, rises to the level of legally recognized reasonable suspicion. The crux of the State's argument rests on Officer Njoroge's conclusion that Edwards was attempting to “elude” Njoroge. No facts substantiate this conclusion. Moreover, the record suggests no reasonable basis from which Officer Njoroge could draw such an inference. If this factor is gone, the rest of Officer Njoroge's reasonable suspicion topples like a house of cards. Indeed, if the unsupported characterization that Edwards was attempting to “elude” Njoroge is removed from the equation in this case, there is no factual predicate to support what the law recognizes as reasonable suspicion.

Attempting to “elude” a police officer, even at 1 a.m. is insufficient to give law enforcement officers the requisite reasonable suspicion to conduct a Terry stop because attempting to “elude” an officer is not a crime when no illegal activity occurs. The remaining factors that Officer Njoroge relied on, under the totality of circumstances, fail to establish reasonable suspicion.

Because the state did not prove that the officer had articulable facts that collectively provided reasonable suspicion for the stop, the detention and subsequent investigation violated the Fourth Amendment.

[Update: the state filed a PR on November 28, 2011.]

No proof discovery was inevitable

2011-12-01T13:46:00.003-06:00

Michelle Davis won in State v. Richard Jones, No. 103,046 (Kan. App. Oct. 28, 2011)(unpublished), obtaining reversal of a Geary County possession conviction. The state conceded that the search of Mr. Jones' pocket was unlawful, but argued that the evidence would have been inevitably discovered. The COA distinguished attenuation doctrine and the inevitable discovery exception and held that the record did not support a finding of inevitable discovery:

Preliminarily, we note the scant, insubstantial, and hypothetical evidence justifying the application of the inevitable discovery doctrine presented by the State at the hearing on the motion to suppress evidence. As summarized in the Factual and Procedural Background section, important evidence to analyze this question was lacking. Although it was conceded that upon the officers' initial entry into the residence Jones was promptly handcuffed, no evidence was presented regarding the length of time Jones was detained at the residence during the execution of the search warrant. Additionally, the time period during which Jones was transported from the residence and held at the detention center in keeping with the police department's policy to detain individuals until their identity is confirmed is also unknown. Although the district court relied on Lieutenant Life's hypothetical and generic testimony that the FBI comparative fingerprint analysis would have taken at least 1 hour, we are left to speculate how long it actually took in the present case.

The answers to these questions would have provided an evidentiary basis in which to determine whether Jones' continued detention was a lawful or unlawful means to the inevitable discovery of the cocaine. Suffice it to say, it is not an appellate court's role to speculate about such factual matters. It is the State's burden, however, to establish the evidentiary basis for the inevitable discovery doctrine in each particular case.

Because the COA held that the state failed to prove the exception, it held that the continued detention violated the Fourth Amendment and reversed. The inevitable discovery doctrine requires proof that evidence would have been discovered in the case at bar, not just most hypothetical cases.

[Update: the state did not file a PR and the mandate issued on December 1, 2011.]

Failure to prove facts about priors

2011-12-01T13:34:00.002-06:00

Washburn student intern Dustin L. Kirk and I won in State v. Hunt, No. 104,529 (Kan. App. Oct. 21, 2011)(unpublished), obtaining reversal of a Sedgwick County criminal possession of a firearm conviction. This case was litigated by bench trial mainly to preserve a suppression issue for appeal. But the criminal possession of a firearm charge required that the state prove that Mr. Hunt had been convicted "within the preceding 10 years." The COA held that the state failed to provide any evidence of that fact:

But the parties' stipulation that the gun was working certainly did not prove when the prior felony conviction had occurred. And the evidence had not done so, either. The evidence on this point was one officer's testimony that “[i]t turned out Mr. Hunt actually had a felony conviction for prior marijuana possession, which would make it a felon in possession of a firearm [offense], and that is what he was booked for.” The officer later confirmed that Hunt had “been previously convicted of a felony.” No one asked when that conviction had occurred.

. . . .

We do recognize, although the State does not make this specific argument, that Hunt was 22 years and 9 months old at the time of this arrest. Thus, for his past conviction to have been more than 10 years old at that time, he would need to have received the equivalent juvenile adjudication sometime before he was 12 years and 9 months old. Is that likely? No. But can we say beyond a reasonable doubt—based solely on the evidence presented at trial—that he didn't receive a juvenile adjudication for the equivalent of felony marijuana possession before he was 12 years and 9 months old? No. Even 12–year–olds can be adjudicated for marijuana possession.

. . . .

We can understand how the State's lapse occurred in this case. Presumably, both parties initially thought all of the elements needed to convict had been proved. But a trial was held, and the evidence wasn't sufficient to prove the defendant guilty beyond a reasonable doubt. The State bears that burden.

This case is a nice reminder that a bench trial, and even a bench trial on stipulated facts, is still a trial. The Due Process Clause still requires proof beyond a reasonable doubt with evidence on the record. It also may be a nice case why the state should support amending the Kansas statutes to reflect that defendants should be able to enter conditional guilty pleas, reserving specific issues for appeal.

[Update: the state did not file a PR and the mandate issued on November 29, 2011.]

Odor of marijuana not sufficient to search shoe [NOT FINAL]

2011-12-01T13:13:00.002-06:00

Rick Kittel won in State v. Robert Smith, No. 103,736 (Kan. App. Sept. 30, 2011)(unpublished), obtaining a reversal of a Geary County possession with intent to sell conviction. The issue revolved around the search of a passenger in a car stopped for incorrectly registered tags. When stopped, the detective detected the odor of marijuana on the passenger, they had him get out of the car and conducted a pat-down, which revealed $370 in cash, but no weapons or drugs. The detectives handcuffed the passenger and had him go back to the patrol car and remove his shoes. The COA considered whether this search violated the Fourth Amendment:

Whether the $370, Smith's nervousness, and the odor of perfume when coupled with the odor of marijuana provide probable cause is a close question. Probable cause is judged by the totality of the circumstances and not by judging each factor in isolation. Under current Kansas law the odor of marijuana alone is not enough, and the other factors in Smith's case provide little if any further support.

Because the COA held the detectives did not have probable cause, it held the search violated the Fourth Amendment and reversed the conviction.

[Update: the state filed a PR on October 25, 2011.]

Insufficient evidence of mistreatment [NOT FINAL]

2011-10-14T14:30:00.002-05:00

Lydia Krebs won in State v. Anderson, No. 103,484 (Kan. App. Sept. 30, 2011)(unpublished), reversing a Saline County felony mistreatment of a dependent adult conviction. The state charged Ms. Anderson stemming from her taking money out of a bank account on which she was a joint signatory with her mother. The COA held that such actions did not amount to the crime of mistreatment of a dependent adult:

Here, however, the evidence fails to support the State's obligation to show that Anderson somehow influenced Johnson to part with the money in the bank account. That didn't happen. Anderson had been authorized to sign checks on Johnson's account. And sign away, she did—apparently taking thousands of dollars to make improvements to her house and otherwise for her own benefit. Anderson did not need to induce Johnson to do anything to get the money and didn't attempt to do so. She just wrote checks.

The evidence and the scheming do not amount to mistreatment of a dependent adult. Had Anderson gone to Johnson and used the illicit means described in the statute to get Johnson to write checks to her that would have constituted mistreatment in violation of K.S.A. 21-3437(a)(2). For example, if Anderson had falsely claimed to need the money for her own medical care or threatened to move Johnson to an inferior care facility to get Johnson to sign checks payable to her, such conduct would violate the statute. But that's not what happened here.

As a result, the COA reversed the conviction.

Problem when verdict form doesn't allow for acquittal [NOT FINAL]

2011-10-09T10:18:00.002-05:00

Christina Waugh won in State v. Rice, No. 103,223 (Kan. App. Sept. 9, 2011), obtaining a new trial for two counts of attempted aggravated criminal sodomy in a Nemaha County prosecution (the COA affirmed two counts of aggravated indecent liberties).

With regard to the criminal sodomy counts, the state charged Mr. Rice charged with aggravated criminal sodomy. The district court decided to give lesser-included offense instructions for attempted aggravated criminal sodomy. But the verdict form had some problems:

“COUNT I
“We, the jury, find the defendant, Dennis Edward Rice, not guilty of the crime of Aggravated Criminal Sodomy.
__________
Presiding Juror

“We, the jury, find the defendant, Dennis Edward Rice, guilty of the crime of Aggravated Criminal Sodomy.
__________
Presiding Juror

“We, the jury, find the defendant, Dennis Edward Rice, guilty of the lesser included
crime of Attempted Aggravated Criminal Sodomy.
__________
Presiding Juror”

As the COA recognized, the verdict form did not provide an option of finding Mr. Rice not guilty of attempted aggravated criminal sodomy or generally not guilty. The jury convicted Mr. Rice of attempted aggravated criminal sodomy. After a long review of applicable case law, the COA held that the defective verdict was clear error:

Critically, the jury was never provided a place on the verdict form to find Rice not guilty of the lesser included offense. Although the jury was told that Rice was presumed innocent and that it should find him not guilty if it had a reasonable doubt on any of the claims required to be proved by the State, the jury may have already found Rice not guilty of the charged crime on Count I. There was only one line remaining, and expecting the jury to know it could choose not guilty there as well would presume not only that the jury was capable of going beyond the form provided, it would presume the jury was capable of disregarding a reasonable interpretation of the trial court's instructions to chose only one line.

BTW, although the KSC has repeatedly disapproved separate guilty and not guilty instructions on lesser-included offenses, I still think they are a good idea. (The problem in this case is that they simply didn't give complete instructions).

Why? So that a jury could acquit on a greater offense, but hang on a lesser. For example, say a jury is considering first-degree murder, with second-degree murder as a lesser. And say six jurors have a reasonable doubt regarding premeditation and six jurors have a reasonable doubt about guilt altogether. What should be the result? There are twelve jurors that think the defendant is not guilty of first degree murder, which should be acquittal on that greater charge (and therefore retrial only on the lesser). But the pattern verdict form does not allow for that possibility. Under the pattern verdict form required by the KSC, you would simply have a hung jury.

So, if you're in this situation where the district court has given lessers (with pattern verdict form) and the jury has indicated that it reach a unanimous verdict, ask the district court to poll the jury regarding their verdict on the greater offense. It's an off chance, but it the jury unanimously found that the client was not guilty of the greater offense, it would be a pretty good issue.

[Update: Mr. Rice filed a PR from that part of the COA decision he lost on October 11, 2011.]

Happy Kansas Constitution Day!

2011-10-04T05:34:00.002-05:00

A few weeks ago, we celebrated Constitution Day. The Court of Appeals sat in special settings at several locations around the state. Kansas schools focused on the history of the Constitution. Constitution Day, of course, celebrates the anniversary of the date the U.S. Constitution was signed at the Constitutional Convention (September 17, 1789). I appreciate and support the recognition for the U.S. Constitution. But where is the love for the Kansas Constitution?

On October 4, 1859, the voters of the territory of Kansas ratified the Wyandotte Constitution, which remains our state constitution to this day. But as Paige Nichols and Dan Monnat explained in an article last year, the Kansas Constitution is a lonely and forgotten document. They explained: "[t]he rights that many free-staters died facedown in the mud to secure are rarely treated as sovereign rights independent of the federal constitution." In fact, Kansas appellate courts frequently interpret the Kansas Constitution as a mirror of its federal counterpart (even when the language of our state constitution is different). However, part of the blame is on the practitioners, who rarely seem to raise Kansas constitutional claims separate from the federal issues.

So today, in an effort to promote the use and independent protections of the Kansas Constitution, I celebrate Kansas Constitution Day. Although it's not an official holiday (yet), I will be meeting with like-minded Kansans to honor the anniversary of the adoption of the Kansas Constitution (we will be meeting at Free State Brewery in Lawrence). I encourage you to join.

You have to be there to acquiesce.

2011-09-30T09:23:00.000-05:00

Patrick Dunn won in State v. Donnie Taylor, No. 104,455 (Kan. App. August 26, 2011)(unpublished), affirming Judge Rome's dismissal of several drug charges based on a statutory speedy trial violation. At one pre-trial proceeding, Mr. Taylor's lawyer appeared and requested a continuance, but Mr. Taylor was not present. The COA described the issue:

The issue is this: Did Taylor's absence from the December 1, 2009, hearing in which his lawyer requested and received a continuance require that the resulting delay be charged against the State? If so, the 90–day deadline expired during that time, requiring Taylor's discharge based on a violation of K.S.A. 22-3402.

. . . .

The Arrocha holding fits the material facts here in that Taylor's counsel sought a continuance that pushed the trial date past the speedy trial deadline. But—and this is a crucial but—in that case Arrocha was present by his counsel's side and did not personally object. Here, Taylor was not to be found physically in the courtroom or electronically present through an audio-visual connection from a remote location. In short, Taylor could not have lodged a personal objection because he had no opportunity to do so despite the statutory requirement of K.S.A. 22-3208(7) that he be present at the motion hearing and, thus, be afforded that opportunity. We need not determine if the hearing on the motion to continue was a critical stage of the case in a constitutional sense, thought it might have been. Taylor's statutory right to be present is of sufficient magnitude to direct the outcome here.

There was, of course, no mystery about Taylor's whereabouts. He was an involuntary resident of the Reno County jail and presumably could have been produced for the December 1 hearing. This is not a situation in which a defendant voluntarily failed to appear and, thus, reasonably might be viewed as having waived any personal objection to the proceedings.

Taylor had a right to voice an objection to his counsel's motion for a continuance, particularly one pushing the trial past what would have been the speedy trial deadline. And he had a right to be present at the motion hearing. Neither of those rights was observed except in the breach. The combined effect was to deprive Taylor of the opportunity to assert his speedy trial right. And, in turn, he cannot be said to have agreed to or acquiesced in the compromise of that right. The lesson, if there be one, is that a criminal defendant needs to be present at a hearing on a motion for a continuance and should affirmatively state on the record his or her personal assent to the request before the judge rules.

Good lesson.

[Update: the state did not file a PR and the mandate issued on September 30, 2011.]

Contradictory instructions require reversal

2011-09-22T09:38:00.001-05:00

Lydia Krebs won in State v. Xavier Miller, No. 100,247 (Kan. Sept. 2, 2011), obtaining a new trial in a Wyandotte County intentional second-degree murder prosecution. The KSC summarized the issue:

whether the district court clearly erred when it appropriately instructed the jury that it should simultaneously consider the lesser included offenses of second-degree murder and voluntary manslaughter, but then erroneously gave a contradictory instruction directing the jury to consider the offense of voluntary manslaughter only if it could not agree on the offense of second-degree murder.

This is another case in a fairly long and consistent line of cases dealing with voluntary manslaughter as a lesser-included offense of second-degree murder. It's sort of an odd duck because voluntary manslaughter is second-degree murder PLUS some mitigating circumstances. KSC precedent makes it clear that the jury should consider the offenses together, but the instructions in this case were contradictory, indicating in one place that the jury should consider them at the same time, but also instructing the jury to consider voluntary manslaughter only after consderation of the greater offense. The KSC held this to be clear error:

We conclude under the facts of this case, that when the jury was given contradictory instructions to consider the lesser included offenses of second-degree murder and voluntary manslaughter both sequentially under a modified form of PIK Crim. 3d 56.05, Alternative A, and simultaneously under PIK Crim. 3d 56.05, Alternative B, and the remaining instructions, closing argument, and verdict form also led the jury to consider the lesser offenses sequentially rather than simultaneously, a real possibility exists that the jury would have rendered a different verdict had it been properly instructed.

This is an important result because many COA cases (like the COA in this case in fact) have held that improper instructions regarding ordering of jury consideration are cured if there is at least one correct instruction. But this case stands for the proposition that contradictory instruction on a fundamental point is clear error.

"Black man with facial hair" is too broad of a description to justify gun-point detention

2011-09-09T11:20:00.003-05:00

Ryan Eddinger won in State v. Johnson, No. 98,812 (Kan. Sept. 2, 2011), reversing Wyandotte County convictions for possession of cocaine and possession of marijuana. The court held that the FBI violent crimes task force lacked reasonable suspicion to initially detain Mr. Johnson.

On the day Mr. Johnson was stopped, the FBI task force was looking to serve an arrest warrant on Shane Thompson, who, according to his DOC face sheet, was a black male with short hair, who had facial hair, and was 5’2” tall. The task force went to Thompson’s mother’s house in Kansas City, and they were unable to find him (and there was no evidence that Thompson had been there anytime recently). But the task force apparently did not want to get all dressed up for nothing. The KSC described the additional facts as follows:

Approximately 5 blocks away from Thompson's mother's residence, [Mr.] Johnson and [Mr.] Brown were walking on a sidewalk. Johnson is approximately 5'11" tall, and Brown stands around 5'9". Both men are black and have facial hair. The officers, in multiple unmarked squad cars with emergency lights activated, exited their cars, drew their weapons, and approached Johnson and Brown and requested identification. Officer Michael Blegen of the Missouri Department of Corrections and a member of the FBI task force later searched Johnson and discovered marijuana and crack cocaine. Johnson was arrested and later charged with possession of marijuana, possession of cocaine, and possession of a controlled substance without a tax stamp.

Mr. Johnson filed a motion to suppress. At the suppression hearing, Officer Blegen claimed that the difference in height in between the face sheet (5’2”) and Mr. Johnson’s height (5’11”) was acceptable because the face sheet was not always accurate. Based on the officer’s testimony, the district court and the Court of Appeals determined that suppression was not warranted. The KSC disagreed, holding:

The officers in this case lacked reasonable suspicion because: (1) Johnson's location was not related to criminal activity; (2) there is no evidence that the officers used reliable information; and (3) the physical description of "black man with facial hair" was too broad to be of any assistance in formulating reasonable suspicion.

So ultimately, Mr. Johnson was stopped at gun point by multiple officers because he was a "black man with facial hair." Kuddos to Ryan for his good work on this one (I believe he grew out his beard for the KSC argument). But, it really should not have been a close call. It is really quite disturbing that this type of "information" is used to justify stopping our fellow citizens at gun point.

Failure to disclose critical exculpatory evidence

2011-08-26T14:12:00.005-05:00

Here is a Wichita Eagle article reporting that federal prosecutors have decided to dismiss charges involving allegations of genocide in Rwanda. (We previously blogged about the case here and here). Part of the rationale for dismissal included the fact that the federal government had failed to disclose critical exculpatory evidence that it had in its possession five months prior to charges being brought.

Congrats to Kurt Kerns and Melanie Morgan for their zealous work in this case!

Denial of self-representation requires new trial

2011-08-24T10:33:00.007-05:00

Korey Kaul won in State v. Kendall Brown, No. 103,425 (Kan. App. Aug. 19, 2011)(unpublished), obtaining a new trial in a Saline County rape prosecution. Mr. Brown had filed four letters with the trial court indicating his desire to represent himself at trial. The district court held that, due to a limited educational background and history of mental illness, Mr. Brown could not knowingly and voluntarily waive his right to counsel and therefore denied his request. On appeal, the state did not argue in support of that finding, but argued that Mr. Brown's requests were equivocal. The COA rejected both claims:

Because the right of self-representation does not hinge upon the ultimate outcome of the criminal trial, the fact that [an attorney] was a highly trained criminal defense attorney who probably would have provided Brown with a better defense than Brown was capable of providing for himself is irrelvant. Similarly, a criminal defendant's level of education is relevant only to the extent that he or she is literate and capable of understanding the dangers and potential consequences or proceeding pro se. Clearly, the amount of training or legal sophistication, alone, does not enable a court to force counsel upon an unwilling criminal defendant.

Next, the COA considered whether the record would support a finding that Mr. Brown was incompetent to represent himself. The COA reviewed the mental health evaluation that included in the record on appeal:

Nothing in this evaluation supports the court's finding that Brown was mentally incompetent to handle his own defense.

Moreover, Brown's responses to the trial court's inquiries at the hearing were appropriate and cogent. Brown recognized that his understanding of the procedural law was inferior to his appointed counsel's knowledge but maintained that he wished to handle his own defense. While Brown's pro se motions and letters to the court demonstrate a lack of formal education, they also show his ability to grasp the factual and legal issues in the case. Brown indicated that he understood the potential pentalites he faced and the potential pitfalls attending self-representation.

As a result, the COA held that the district court violated Mr. Brown's right to represent himself, which is structrual error requiring a new trial.

[Update: Mr. Brown intially filed a PR from that part of the case he lost, but ultimately voluntarily dismissed that PR and the mandate issued on October 17, 2011.]

[Update: here is a Salina Journal report that Mr. Brown entered into a plea agreement for a reduced sentence on remand.]

September 2011 Special KSC Docket (Wichita)

2011-08-15T15:00:00.000-05:00

Here are the criminal cases on the KSC docket for September 29, 2011, held in Wichita. This was a special setting of the KSC.

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.

September 29--Thursday--a.m.

State v. Shannon Bogguess, No. 103,245 (Sedgwick)
Direct appeal; First-degree murder
Lydia Krebs

Failure to suppress statements
Denial of motion in limine (prior bad acts)
Denial of motion to sequester detective
Denial of conflict-free counsel at sentencing

State v. Michael Phillips, No. 102,282 (Sedgwick)
Direct appeal; Felony murder
Michelle A. Davis

Failure to instruct on lessers and self-defense
Prosecutorial misconduct (improper argument)
Insufficient evidence of underlying felonies
Improper admission of "flight" and "alias" without cautionary instruction

State v. Kamaronte Jones, No. 101,667 (Sedgwick)
Direct appeal; First-degree murder
Meryl Carver-Allmond

Improper instruction on gang evidence
Outdated eyewitness ID instruction
Failure to give lesser-included offense instructions

September 2011 Special KSC Docket (Greensburg)

2011-08-15T14:49:00.000-05:00

Here are the criminal cases on the KSC docket for September 28, 2011, held in Greensburg. This was a special setting of the KSC.

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.

September 28--Wednesday--a.m.

State v. Manuel Ultreras, No. 103,527 (Ford)
Direct appeal (transfer); Agg Battery
Kurt P. Kerns

Interpretation of Stand Your Ground law/procedure
Insufficient evidence of alternative means
Failure to give unanimity instruction
Improper restriction of cross-examination

State v. Juan Garcia, No. 102,140 (Morton)
Motion to withdraw plea appeal (petition for review)
Meryl Carver-Allmond

Denial of motion to withdraw plea

Traffic stop illegally extended

2011-08-12T14:09:00.002-05:00

Washburn student intern (and now Houston-area prosecutor), Sean Whittmore and I won in State v. Coleman, No. 101,621 (Kan. Aug. 12, 2011), reversing a Reno County possession conviction. The case involved a traffic stop of a parollee between Wichita and Hutchinson. The police officer discovered that Mr. Coleman was driving a rental car but the rental agreement had expired a couple of days prior. The officer also had unspecified information that officers were "aware of information" that Mr. Coleman, a parollee, was involved in drug trafficking.

The KSC agreed that the traffic stop itself was valid and that, based on the rental agreement, Mr. Coleman's parole status, and the unspecified reports of drug trafficking, officers had a basis for a temporary detention for further investigation. But the KSC went on to analyze the duration of the stop:

Because, as we determined earlier, Deputy Tatro had reasonable suspicion of criminal activity that would allow him to expand the scope of his original stop, the limitation that the Kansas Department of Corrections self-imposed would not have prevented a detention for a reasonable time for a search within the scope of the initial stop. Tatro did not, however, conduct an immediate search; he instead detained Coleman for at least 35 minutes while he waited for backup officers and, eventually, a parole officer to arrive.

A traffic stop may not exceed the duration necessary to carry out the purpose of the stop. In order to justify a detention for questioning, the officer must have a reasonable suspicion that the driver is engaging in or has committed a serious crime and must have a reasonable basis for extending the duration of the detention. Detaining a driver for even a few minutes in order to allow a drug-sniffing dog to arrive unreasonably extends the detention when the officer did not need additional time to ask exploratory questions or to write a traffic citation.

In the present case, Deputy Tatro detained Coleman for the sole purpose of providing a parole officer with enough time to arrive and conduct a search under the Kansas Department of Corrections' rules. It is undisputed that Tatro did not have a written arrest and detain order, and the State does not contend that Tatro needed the extended time in order to write a ticket or to verify Coleman's license or parole status.

. . . .

Deputy Tatro did not have the statutory authority to arrest Coleman as a parole violator. Tatro had no grounds to arrest Coleman for any other reason prior to the parole officer conducting the search that turned up the incriminating evidence. Quite simply put, Tatro had no reasonable and legal basis for detaining Coleman while the officers waited for the parole officer to arrive at the scene. An officer may not arbitrarily detain a driver in order to procure a drug-sniffing dog, and an officer may not arbitrarily detain a driver in order to obtain the presence of a parole officer.

As a result, the evidence should be suppressed.

Can reduce or eliminate postrelease after revocation

2011-08-12T13:56:00.004-05:00

Carl Folsom won in State v. McKnight, No. 100,246 (Kan. Aug. 12, 2011), reversing imposition of a postrelease supervision period after the district court had originally declined to impose such a period upon probation revocation. The first issue that the KSC considered was possible mootness, because the state had filed a notice alleging a change of custodial status indicating that Mr. McKnight had been discharged. The KSC held (1) on the record before the KSC, the state had not proved that Mr. McKnight had been discharged and (2) even if moot, the case was capable of reptition, yet evading review. As a result, the KSC reached the merits of the case.

On the merits, the decision was pretty straightforward. The state argued that Kansas statutes mandate postrelease supervision. But K.S.A. 22-3716(b) expressly authorizes that, upon revocation of probation, the district court can "require the defendant to serve the sentence imposed, or any lesser sentence." The KSC held that this language is clear and unlimited, consistent with its 2001 precedent. See State v. McGill, No. 84,570 (Kan. April 20, 2001). Postrelease is part of the sentence. When the district court declined to impose postrelease at the time of revocation, that sentence was legal and could not later be modified.

As an appellate procedure aside, the KSC suggests in dicta that if Mr. McKnight had been discharged, the sentencing appeal would have been moot. But this does not actually decide the issue or consider the impact of legally moving up a person's effective discharge date. There are a lot of consequences that trigger from the time of legal discharge (e.g. right to carry a firearm) and, if a court would hold, as it does in today's case, that a discharge should have occurred earlier, that judgment would have a direct effect. Because the KSC rejects the mootness issue, this case does not decide that issue.

New blog of note

2011-08-11T09:10:00.005-05:00

Our colleague Jen Roth (former ADO, current Third District PD, Kansas Sentencing Commissioner, and KACDL legislative guru) has started a new blog, Bends Toward Justice, which we immediately added to our blog roll. Jen describes the blog as follows:

I start this blog as a place to raise awareness about the things in Kansas that are working and ways we could do better in the area of criminal justice policy. I envision this blog as a resource for constituents and policy makers alike. My goal is to provide data, information and stories about the complex issues at hand.

Jen is probably closer to the legislative process and more committed to the real ideals of "liberty and justice for all" as anyone I've known. So I'll be reading this blog! You should too!

Ten-minute acquittal

2011-08-10T14:28:00.002-05:00

Here is a Hutchinson News article reporting that Kelly Driscoll won an acquittal in State v. Zahn, ending a Reno County prosecution of two counts of aggravated assault on a law enforcement officer.

Improper answer to jury question requires new trial

2011-08-01T16:13:00.004-05:00

Christina Waugh won in State v. Stieben, No. 99,446 (Kan. July 29, 2011), obtaining a new trial in a Ford County felony DUI prosecution. During deliberations, the jury asked "Did Defendant cross the fog line before the officer turned around?" Over the defendant's objection, the district court sent a written answer to the jury in the affirmative. In fact, the actual testimonty was "The vehicle had also drifted toward the fog line when it was coming at me." The officer also testified on cross-examination that he did not see any traffic violations. As a result, the KSC concluded that the district court's answer was factually incorrect and required reversal:

The response by the trial court constituted error in at least two ways. First, the court violated the express provisions of K.S.A. 22-3420(3). Second, the court intruded on the province of the jury to act as the factfinder, interfering with Stieben's constitutional right to a trial by jury by not only answering the question, but by answering it incorrectly, possibly prejudicing Stieben's defense.

The KSC went on to address the real issue in this case: whether (as the COA had held) this error was harmless:

Harmless error analysis is inappropriate in the present case. Although it would require speculation to find reasons why the jury considered the early driving infraction important in its deliberation, the jury obviously considered it important enough to pose the question to the court. The evidence against Stieben was strong but not overwhelming. It consisted of a series of factors, any one of which standing alone might not have sufficed for conviction. She drifted toward the fog line once and crossed it three times, but she was not weaving all over the road. She committed no other traffic violations. She failed portions of the field sobriety tests, but she was not reeling and she was able to comprehend directions.

In State v. Myers, 255 Kan. 3, 9, 872 P.2d 236 (1994), this court found that the district court has a statutory duty to read back testimony when a jury requested it and that failure to comply with K.S.A. 22-3420(3) is not susceptible to harmless error analysis because the requested testimony "could have changed the way the jury evaluated the facts." In the present case, the requested testimony similarly could have changed the way the jury evaluated the facts.

In order to preserve a conviction on appeal where a constitutional trial error has been found, it is the State's burden, as the party favored by the error, to prove beyond a reasonable doubt that the error did not affect Stieben's substantial rights, meaning it did not contribute to the verdict obtained. The trial court's invasion of the jury's province as factfinder effectively denied Stieben her constitutional right to a jury trial. It is unknown why the jury considered the question important enough to submit it to the trial court, and it is unknown how the jury utilized the answer it received from the court. This court therefore cannot conclude that the State has shown beyond a reasonable doubt that the error did not affect Stieben's substantial rights. For the foregoing reasons, we find that the trial court committed reversible error in the way that it answered the jury's question about whether Stieben crossed the fog line when she first encountered Trooper Hemel.

As this decision recognizes, it should almost always be reversible error when a district court makes an error that invades the province of the jury.

COA adopts notice test for purses found during search warrant

2011-08-01T15:56:00.007-05:00

Rick Kittel and KU Defender Project intern Carolyn McKune won in State v. Bobbie Jo Jackson, No. 104,309 (Kan. App. July 29, 2011), obtaining a reversal in a Butler County drug prosecution. Police officers executed a residential search warrant. During the execution, the officer found several purses on a table. The officer proceeded to go through the purses to determine which belonged to the resident. During that search, the officer found drug paraphernalia in a purse that turned out to belong to Ms. Jackson, a guest, and not the resident.

The COA considered possible tests for determining whether a purse falls within a search warrant. The COA noted that courts generally either apply the possession test (i.e. police may assume any object not worn by or in the close physical proximity of the guest is subject to the warrant) and the notice test (i.e. requires actual or reasonable constructive notice to police that an object within the premises may not be subject to the warrant or, without such notice, police may assume that the object is subject to the warrant). The COA considered the merits of each test, but adopted the notice test:

Both Lambert and Tonroy are highly suggestive that the notice test together with the relationship exception should be applied in Kansas to protect social guests from unreasonable search and seizure of their persons and personal property during execution of a search warrant. In our opinion, the bright-line possession test is not sufficient to provide adequate constitutional protection when considering whether the privacy rights of a guest have been violated during execution of a search warrant. We agree with the Oregon Court of Appeals in Reid that the possession test is potentially arbitrary and inflexible, thereby not affording due regard for the privacy rights of social guests. Accordingly, we hold that the notice test together with the relationship exception are to be applied to protect social guests from unreasonable searches and seizures of their persons and property during execution of a search warrant.

In applying the notice test under the facts of this appeal, we reject the notion that Officer Phillips did not have notice that the purses belonged to the guests and not Davenport. Phillips admitted that he knew the purses could have belonged to the female guests; thus, he had constructive notice of "containers" not subject to the reach of the search warrant. His expressed reasoning for the search was that one or all of the purses could have belonged to the target of the warrant, Davenport, and that in order to determine ownership, he was forced to open the purses. But Officer Phillips made no inquiry about the purses' ownership. He did not ask any of the women present in the house if they had brought a purse or which one it was. Phillips could have simply gone into the living room and asked three questions of each guest: Did you bring a purse with you today? Is that the only purse you brought? Can you describe your purse? The true owner of the purse is most likely to have enough knowledge of the purse to describe it, while the others will probably not recall enough about the purse to describe it. Further, if Jackson had been questioned and had denied the purple purse with an orange handle was hers, she would no longer have had a subjective expectation of privacy in the purse. Moreover, if there was doubt of ownership after questioning Jackson, the officers could have applied for a supplemental search warrant or requested that a drug dog be brought to the premises. In short, the notion that the police would have been stymied and without appropriate avenues of investigation is not accurate.

A nice explanation that a few simple questions do not impede good police work.

[Update: the state did not file a PR and the mandate issued on September 1, 2011.]

September 2011 KSC Docket

2011-07-31T14:05:00.000-05:00

Here are the criminal cases on the KSC docket for August 29-September 2, 2011. 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.

August 29--Monday--a.m.

State v. Ranell Turner, No. 102,594 (Sedgwick)
Direct appeal; Rape/kidnapping
Lydia Krebs

Improper imposition of life sentence

State v. Steven Hernandez, No. 101,719 (Sedgwick)
Direct appeal; Agg Indecent Liberties
Rachel L. Pickering

Improper imposition of life sentence (Bello)
Improper verdict forms
Failure to give lesser
Failure to suppress statement

August 30--Tuesday--a.m.

State v. Perry Parks, No. 101,905 (Wyandotte)
Direct appeal; Felony murder
Carl A. Folsom, III

Improper admission of post-Miranda silence
Violation of in limine order by officer
Denial of right to cross-examine state's witness

Improper Allen instruction

State v. Morgan Wade, No. 101.548 (Chautauqua)
Direct appeal; First degree murder
Matthew J. Edge

Inadequate answer to jury question on premeditation
Failure to give lesser-included offense instruction

State v. Bryan Sprung, No. 99,704 (Cloud)
Direct appeal (petition for review); Agg Crim Sodomy
Lydia Krebs

Failure to give unanimity instruction
Multiplicity
Prosecutorial misconduct (closing argument)
Denial of psychological exam

August 31--Wednesday--a.m.

Kenneth Haddock v. State, No. 101,508 (Johnson)
K.S.A. 21-2512 appeal
Elizabeth Seale Cateforis

Denial of new trial after DNA testing

Marc Thompson v. State, No. 100,058 (McPherson)
K.S.A. 60-1507 appeal
Meryl Carver-Allmond

Ineffective assistance of counsel
Improper dismissal of amended motion

September 1--Thursday--a.m.

State v. Alesia Warrior, No. 101,799 (Wyandotte)
Direct appeal; First-degree murder
Korey A. Kaul

Improper admission of statements
Failure to disclose exculpatory evidence
Improper admission of hearsay evidence
Improper instruction that trial a burden on both sides

State v. Katreal Harris, No. 101,613 (Wyandotte)
Direct appeal; First-degree murder
Christina M. Waugh

Failure to give lesser-included offense isntruction
Failure to suppress statements
Improper admission of pre-trial identification
Failure to grant mistrial during jury selection

September 2--Friday--a.m.

State v. Matthew Astorga, No. 103,083 (Leavenworth)
Direct appeal; First-degree murder
Theresa L Barr (brief); Meryl Carver-Allmond (argue)

Improper instruction restricting self-defense
Forcible felony restriction vague
Juror misconduct (failure to disclose)
Improper imposition of hard-50

State v. Daniel Benson, No. 97,905 (Shawnee)
Direct appeal; Felony DUI
Shawn E. Minihan

Improper admission of Intoxilyzer evidence (Confrontation Clause)

Reversal for failure to give self-defense instruction [NOT FINAL]

2011-07-29T09:14:00.002-05:00

Rick Kittel won in State v. Sanders, No. 103,171 (Kan. App. July 29, 2011)(unpublished), obtaining a new trial in a Shawnee County agg assault prosecution. The basis for the reversal was failure to give a requested self-defense instruction stemming from a confrontation between Mr. Sanders and some bouncers at a Shawnee County bar:

Here, a reasonable person in Sanders' posiution confronted with a weapon that, especially in the heat of the moment, might be taken to be a firearm would believe he or she needed to draw a firearm to resist that aggressive conduct and to defuse the perceived danger. In addition to [one of the bouncers], a second employee had accosted Sanders near the club entryway. Sanders or a reasonable person in his position also may have perceived that he was outnumbered, depending on whether he viewed Cooper as willing to enter into a physical confrontation with the club employees. Sanders had no duty to retreat in the face of the conduct Cooper ascribes to [the bouncer] and the other club employee. He could resort to force to defend himself rather than fleeing. The videotape shows Sanders baking away toward the front door of the club, albeit with his hand on his holstered pistol, while [the bouncer] advances towards him.

We also note that the video tape is far from decisive one way or the other. It fails to depict the initial stage of the confrontation when [the bouncer] and the second employee first tell Sanders to leave. The event unfolded quickly, and Cooper could have seen the employees point the pepper spray devices at Sanders then. The video also does not clearly show Sanders drawing his pistol and fails to capture where he may have pointed it.

Given the minimal evidentiary threshold necessary to require a court to give an instruction on self-defense, those circumstances are sufficient. The trial court, accordingly, erred in declining to instruct the jury on self-defense. Sanders is entitled to a new trial. We would not presume to suggest what a properly instructed jury would conclude. But, to this point, Sanders has been denied the opportunity (to which he was legally entitled) to find out.

The COA does a nice job of expaining the incorrectness of state's factual argument on appeal that the bouncers were trying to deal with the situation in a nonconfontational way:

But the jury, provided proper instruction, must sort out those kinds of conflicts. The evidentiary discrepancies do not furnish a basis to deny an instruction on self-defense. That would be looking at the evidence in a way disadvantaging Sanders and, therefore, contrary to the applicable legal standards in determining whether to instruct on a defense.

Another case of "let the jury do its job!"

KSC abandons previous felony-murder lesser doctrine

2011-07-22T13:22:00.005-05:00

Heather Cessna won in State v. Berry, No. 100,l512 (Kan. July 22, 2011), obtaining a new trial in a Sedgwick County murder prosecution. The issue resulting in reversal stemmed from a special rule previously applied in felony murder cases that instructions for lesser degrees of homicide should only be given if the evidence of the underlying felony was "weak or inconclusive." The KSC made a detailed analysis of the rule and its history, concluding that there is no basis for making an exception to the statutory rule regarding lesser included offense instructions:

Accordingly, and after thoroughly reviewing the case law developed since Germany, we find lesser included offense instructions should follow the statutory mandate so that instructions are issued if there is some evidence that would reasonably justify the conviction of the lesser included crime. In short, we would apply K.S.A. 22-3414(3) as written to felony-murder cases. We disapprove any language to the contrary in our previous opinions.

In Berry's case, and using the statutory viewpoint directed by K.S.A. 22-3414(3), we find the evidence could reasonably justify a conviction for lesser included crimes. Indeed, the evidence is undisputed that Berry fled from the traffic stop and recklessly drove down city streets at an unconscionably high rate of speed. His flight caused an automobile accident that took someone's life. Such evidence could support a conviction for second-degree reckless murder. See K.S.A. 21-3402(b) (unintentionally killing a person recklessly under circumstances manifesting extreme indifference to the value of human life). Also, the evidence could justify a conviction for involuntary manslaughter. See K.S.A. 2004 Supp. 21-3404(a) (unintentionally killing a person recklessly). And the evidence could support a conviction of vehicular homicide. See K.S.A. 21-3405 (unintentionally killing a person while operating an automobile in a manner that created an unreasonable risk of injury to the person of another and constituted a material deviation from the standard of care a reasonable person would observe under the same circumstances.). As such, the failure to issue the lesser included offense instructions amounts to reversible error when following the statutory directive of K.S.A. 22-3414(3). We reverse Berry's felony-murder conviction based on the above analysis and order a new trial on that charge.

Finally, we hold that the decision announced in this case is to have application in all pending felony-murder cases. This court previously has noted that a new rule for the conduct of criminal prosecutions is to be applied to all cases, state or federal, pending on direct review or not yet final.

This is a huge decsion in the area of felony murder procedure. I know of at least one more case that was argued the same week that may also be affected. And who knows how many more in the pipeline.

It may be part of the KSC's recent move to fully inform the jury regarding lesser included offenses and letting the jury do its job.

[Update: this case was selected as the 2011 ADO Case of the Year!)

Prosecutorial misconduct results in reversal under the Tosh test

2011-07-08T15:32:00.004-05:00

Shawn Minihan won in State v. Simmons, No. 98,770 (Kan. July 8, 2011), obtaining a new trial in a Crawford County rape prosecution. The KSC agreed that there were two instances of misconduct: (1) improper discussion of Stockholm Syndrome and related circumstances during voir dire and (2) improper argument regarding the ongoing impact of the crime on the victim. With regard to the second instance, the state and the COA had agreed the statements were improper, but argued (or held) that the statements did not require reversal, particularly in light of the district court's admonition to ignore them. The KSC disagreed:

In contending that the misconduct did not deny Simmons a fair trial, the State appears to argue the weight of the evidence by principally pointing out that Simmons was not convicted of all crimes. More specifically, he was acquitted on the aggravated kidnapping and aggravated criminal sodomy counts, and the jury failed to reach a verdict on one of the three rape counts. The State essentially suggests that the prosecutor's comments regarding the Stockholm Syndrome were only relevant to the aggravated kidnapping charge and, because Simmons was acquitted of that charge, the misconduct obviously cannot be reversible error. "Simmons cannot demonstrate that he was prejudiced by these comments concerning kidnap victims when he was acquitted of the [aggravated] kidnapping charge." On the surface, this argument appears meritorious as an important element of aggravated kidnapping is "the taking or confining of a person, accomplished by force, threat or deception."

Upon deeper examination, however, we must disagree with the State's surface argument. The prosecutor did not instruct the jury panel during voir dire to limit its consideration of the Stockholm Syndrome to any particular crimes, especially aggravated kidnapping. As mentioned, he instead told them they should generally use the syndrome as their lens when they examined certain evidence, "I ask that you view that evidence [that A.H. maybe identified at times with Simmons] in light of the Stockholm Syndrome." As a result, the prosecutor essentially argued that despite inferences that could be drawn by the jury panel from certain evidence, A.H.'s participation in the sex acts forming the basis for four of the charged crimes was not voluntary. As in the charged crime of aggravated kidnapping, the factor of voluntariness, i.e., consent, also was an absolute defense to the sex crimes. The State needed to negate this defense for Simmons' convictions. Additionally, the jury was never told to disregard the prosecutor's discussion of the Stockholm Syndrome. Nor was it told to disregard his implication that the syndrome explained that A.H.
psychologically identified with her captor and therefore could never truly give consent. We observe the jury then convicted Simmons of two counts of rape but was unable to reach a verdict on the third. Simmons, however, relies upon his acquittals of aggravated kidnapping and aggravated criminal sodomy to argue: "The jury must have thus believed that A.H. willingly spent some of the weekend with Mr. Simmons." (Emphasis added.) Given the mixed results of the verdicts, we will not speculate as to the exact effect the State's comments had on the jury during its deliberations on all charges. But we can conclude that the prosecutor's argument that A.H. was not a voluntary participant because of the Stockholm Syndrome could easily have affected important parts of the trial.

The State makes a similar argument concerning the prosecutor's comment about A.H.'s thoughts during daily showers for the rest of her life. It contends the admonition worked "because the jury acquitted him of aggravated criminal sodomy, aggravated kidnapping and was unable to reach a verdict on a count of rape."

We must reject this argument for many of the same reasons we rejected the State's argument about the lack of prejudice caused by the Stockholm Syndrome discussion. While admittedly Simmons was not convicted of all charges, he was nevertheless convicted of two rape counts for acts committed during this entire episode. Furthermore, just as we concluded the prosecutor's argument that A.H. was not a voluntary participant because of the Stockholm Syndrome could easily have affected important parts of the trial, the prosecutor's appeal to sympathy for A.H. could have done so as well. Again, given the mixed results of the verdicts, we will not speculate as to the exact effect the showering comment had on the jury during its deliberations on all charges.

We pause to note our analysis of the shower comment technically is unfinished. Earlier we saw no valid reason for maintaining a separate, incomplete Tosh test for the specific prosecutorial misconduct scenarios described in Pink, Lumbrera, and Campbell. Similarly, we see no valid analytical reason for maintaining an incomplete Tosh test for when the effect of prosecutorial misconduct is allegedly cured by a timely jury admonition to disregard. Accordingly, the test stated and applied in Jordan and similar decisions is now clarified. As demonstrated above, we apply the Tosh test, with the extent of any ameliorating effect of a jury admonition obviously to be considered in step two when reviewing the amount of the evidence of guilt to determine whether the prosecutor's statements prejudiced the jury and denied defendant a fair trial. In this determination, however, we must also review the other factors comprising step two because no single factor is individually controlling. While ill will and gross and flagrant conduct are valid factors for consideration, for
analytical purposes we simply note that they do not appear in the shower comment.

Stating our ultimate conclusion another way, with these different verdicts demonstrating convictions, acquittals, or juror uncertainty on the six charges, we simply cannot conclude that the evidence against Simmons is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. Accordingly, we hold the prosecutor's discussion regarding the Stockholm Syndrome and comments about A.H.'s thoughts while showering combine to constitute reversible prosecutorial misconduct under both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18 (1967).

We have frequently seen the effect of split verdicts used in opposite ways by the prosecution and defense. We are always saying "It was a close decision. Any error could have affected the outcome." The prosecution is always saying "The jury really did its job, apparently without influence of the improper statements--otherwise, it would have convicted as charged." The KSC Adopts the former analysis in this decision.

Here is coverage in the Pittsburg Morning Sun.

KBI should follow court order

2011-07-06T16:11:00.005-05:00

Janine Cox won in Goldsmith v. State, No. 99,041 (July 1, 2011), obtaining a reversal of a dismissal of Mr. Goldsmith's request for DNA testing pursuant to K.S.A. 21-2512. In 2000, the COA affirmed Mr. Goldsmith's aggravated kidnapping, agg burglary, rape, and agg criminal sodomy convictions. Since then, Mr. Goldsmith has been attempting to get DNA testing, including filing a request under K.S.A. 21-2512. See Goldsmith v. State, No. 86,692 (Nov. 27, 2002)(affirming denial of motion pursuant to K.S.A. 60-1507); Goldsmith v. State, No. 93,377 (Dec. 23, 2005)(reversing summary denial of request pursuant to K.S.A. 21-2512).

In March 2006, the parties agreed that the state would send 35 items to the KBI for testing and the district court so ordered.

The KBI tested one item, some sweatpants, and found that the DNA sample on those sweatpants was consistent with Mr. Goldsmith and, therefore, unfavorable to him. At that point, the KBI decided not to test any more of the items because it would "not be utilizing resources wisely." The report was submitted to the distrtict court and the district court dismissed the K.S.A. 21-2512 action. The KSC disagreed:

In Goldsmith's case, there is no question that the result of the test on the single item of evidence was unfavorable. The KBI found DNA consistent with both Goldsmith and the victim on the crotch of Goldsmith's blue sweatpants. Had the district court's order for testing been limited to the blue sweatpants, under K.S.A. 21-2515(f)(1)(A), the court would have been correct to dismiss Goldsmith's petition with no further proceedings. But we are compelled to consider the effect of failing to test the remaining 34 items of evidence agreed upon by the parties and ordered to be tested by the court.

We first observe that, in this case, the State (through the KBI) made the determination that it should stop testing when it found the first unfavorable result. The plain language of K.S.A. 21-2512 does not place the responsibility for such a decision in the hands of the State. Rather, the statute indicates only what a court may do—i.e., the court must dismiss a petition and may assess costs if the results are unfavorable; the court may order a hearing to determine further proceedings if the results are favorable; the court may hold a hearing to determine if there is a substantial question of innocence when the results are inconclusive. K.S.A. 21-2512(f). Nothing in K.S.A. 21-2512 permits the State to take any unilateral action to limit or cease testing previously ordered by the court.

The State nevertheless contends that the one unfavorable result means that the district court did not err by dismissing the petition under K.S.A. 21-2512(f)(1)(A). But this argument ignores the fact that the testing order instructed the KBI to test 35 items of evidence, not just 1 item. A single unfavorable result was not automatically enough for the district court to dismiss the petition when 34 other items of evidence remained untested.

The KSC held that, if the state did not want to test the remaining items pursuant to the district court's order, the proper remedy is to go back to the district court and seek amendment of the order, with Mr. Goldsmith present and represented by counsel.

Rhodes headed to Prison Review Board

2011-06-30T11:16:00.004-05:00

Here is a Wichita Eagle story reporting that Rebecca Woodman and Washburn Law Clinic intern Alan Lindeke will be presenting Ronnie Rhodes case to the Prison Review Board (the successor to the Parole Board) next week. We blogged about previous coverage of the Rhodes case here.

Reversal for failure to prove every element

2011-06-28T18:47:00.005-05:00

Randall Hodgkinson won in State v. Huntington, No. 103,264 (Kan. App. April 29, 2011), obtaining the reversals of two Pawnee County convictions for battery against a mental health employee (K.S.A. 2006 Supp. 21-3448). In its holding, the court looked to the definition of "mental health employee" from K.S.A. 2006 Supp. 21-3448(c) and determined that the State failed to present sufficient evidence of essential elements of the crime.

The court held:

[T]he State was required to establish the following elements in order to sustain Huntington's conviction for battery against a mental health employee: (1) Huntington was in the custody of SRS when the alleged incident occurred on April 9, 2007; and (2) Dr. Strong and Burke were employed by SRS when the alleged incident occurred on April 9, 2007. Based on our review of the trial transcript, we find the State failed to present evidence to establish either of these elements. Although there was evidence presented that the SPTP was located in Larned State Hospital, that Huntington was civilly committed to the SPTP, and that Dr. Strong and Burke were employees of the SPTP, there was no evidence that Huntington, while in the SPTP, was in the custody of SRS or that Dr. Strong and Burke were employed by SRS.

The court also noted that the State was asking it to stack inference upon inference, which is not allowed. The court relied upon State v. Star, 27 Kan. App. 2d 930, 10 P.3d 37 (2000) (holding that there was insufficient evidence of sale of cocaine within 1,000 feet of a school because the State did not present evidence that the building in question was used by a unified school district or an accredited nonpublic school for student instruction, attendance, or extracurricular activities). In reversing the felony convictions for battery against a mental health employee, the court ordered the district court to enter judgment for two convictions of simple battery under K.S.A. 21-3412 (noting that sufficient evidence existed for convictions on the lesser offenses).

[The State did not file a petition for review. The mandate issued June 2, 2011.]

ICE "detainer" does not affect statutory speedy trial status

2011-06-24T14:23:00.002-05:00

Patrick H. Dunn won in State v. Montes-Mata, No. 98,883 (Kan. June 24, 2011), affirming Judge Wheeler's dismissal of a Lyon County drug prosecution on statutory speedy trial grounds. The parties agreed that Mr. Montes-Mata had been held for 111-days. The only question was whether Mr. Montes-Mata was held "solely" on the Lyon County charges when an immigration "detainer" had been filed with the jail. If Mr. Montes-Mata was held "solely" on the Lyon County charges, the state had exceeded the a 90-day statutory limit; if the ICE "detainer" meant that he was not being held "solely" on the Lyon County charges and was not subect to the 90-day limit. The KSC held that the ICE document was not a "present custodial claim on a defendant" and therefore "cannot affect the speedy trial question."

On its face, the Form I-247 sent to the Lyon County Sheriff is not the equivalent of an outstanding warrant for probation revocation, parole violation, or new charges in another jurisdiction. Each of those represents a custodial claim on a defendant's presence to adjudicate existing charges or allegations. The I-247 sent to the Lyon County jail presented the interest of the ICE in clear terms, disclosing that an investigation "has been initiated" and that the ICE would like to know when the defendant was going to be released from custody in Lyon County. The ICE notice in this case is analogous to a call to a sheriff from a law enforcement agency in a neighboring county, expressing interest in one of his or her inmates and asking the sheriff for notice when the inmate is to be released. The request is for cooperation, not custody. It is not particularly helpful that the I-247 form bears the heading "Immigration Detainer--Notice of Action" since, in this case, the "action" was inconsistent with the common custodial use of the term detainer.

The I-247 sent to the Lyon County Sheriff by the ICE represented nothing more than information about the possibility of formal proceedings.

This may make a difference is some other pending cases as well.

Failure to give Bunyard instruction [NOT FINAL]

2011-06-24T14:09:00.006-05:00

Heather Cessna and Carol Longenecker Schmidt won in State v. Flynn, No. 103,566 (Kan. June 24, 2011), obtaining a new trial in a Sumner County rape prosecution. The state charged Mr. Flynn with several major felony counts stemming from an encounter with A.S. The jury acquitted Mr. Flynn of all charges, except one count of rape. On appeal the COA agreed that the district court should have given a Bunyard instruction, informing the jury regarding the law of post-penetration rape in Kansas:

Flynn testified that at the time he and A.S. ended up on the ground, the sexual encounter was consensual. A.S. told Flynn to stop after they were on the ground by saying, "No. Not on the ground." Flynn did not stop immediately and testified that it took him anywhere from 30 seconds to 2 minutes to stop. This was consistent with what he told investigators at the time. A.S. testified that at no point during the encounter was there ever consent. This was consistent with what she told investigators at the time. At the conclusion of the State's case, before Flynn even testified, the trial judge indicated some concern that, based on the evidence, the jury might send out a question regarding withdrawal of consent. Although he indicated he was not familiar with Bunyard, he indicated he would wait and deal with the issue if a jury question arose. Based on the defendant's subsequent testimony, as well as his statement to investigators at the time, and the judge's concern that the jury might be confused, we find that when viewed in the light most favorable to Flynn, a rational fact finder would be justified in finding in accordance with Flynn's theory of defense; therefore, a Bunyard instruction should have been given in this case.

Applying a clearly erroneous standard, the majority held that, particularly given the fact that the jury acquitted Mr. Flynn on five serious felony counts, there was a real possibility that a proper Bunyard instruction may have led to a different result the case. As a result, the COA reversed and remanded for a new trial.

[Update: the state filed a PR on July 25, 2011.]

Even another reversal for failure to give lesser

2011-06-24T13:56:00.004-05:00

Darrell L. Smith won in State v. Gatlin, No. 99,091 (Kan. June 24, 2011), obtaining a new trial in an Anderson County intentional aggravated battery conviction. As noted by the KSC, the charges "arose out of a bar fight in which Gatlin bit off the tip of another man's thumb." The COA had held that Mr. Gatlin had not sufficiently preserved an issue regarding failure to give lesser included offense instructions for reckless aggravated battery. The KSC disagreed:

In this case, Gatlin's counsel made two specific requests during trial for recklessness-based lesser included instructions, both times explaining the rationale behind the requests. It was not necessary for him to repeat what had become a fruitless exercise three more times in order to preserve the issue for appellate review. He had made his position clear to the district judge and given him ample opportunity to rule correctly. This situation is distinct from those in which a precise evidentiary objection must be contemporaneous with admission under K.S.A. 60-404.

Using the proper standard of review, the KSC held that evidence supported giving the requested lesser-included offense instruction:

Viewing the evidence at trial in a light most favorable to Gatlin, a reasonable jury instructed on the elements of the two types of reckless aggravated battery and the definition of recklessness could have concluded that Gatlin engaged in reckless conduct and did not intentionally sever Hoffman's thumb. He may have chosen to continue biting Hoffman's thumb to persuade Hoffman to release the chokehold, knowing that this put Hoffman in danger and yet consciously disregarding that danger; or he may have chosen to allow Hoffman's thumb to remain in his mouth as the two men struggled, knowing but consciously disregarding the danger that they would lose their balance and hit the ground. Under Kansas' definition of recklessness, Gatlin need not have foreseen the specific harm that Hoffman suffered—losing the tip of his thumb. Although the circumstantial evidence supporting recklessness comes solely from the testimony of Gatlin, this is all that Kansas law requires before a lesser included crime instruction is warranted.

Good decision on procedure and on the merits.

Failure to give lesser requires reversal

2011-06-06T15:43:00.005-05:00

Rick Kittel and KU Defender Project intern Kimberly Atchinson won in State v. Taylor, No. 101,224 (Kan. App. June 3, 2011), obtaining a new trial in a Reno County aggravated battery prosecution. A jury convicted Mr. Taylor of severity level 4 agg battery after the district court refused his requests for all lesser severe forms of aggravated battery and self-defense. The COA upheld the denial of self-defense, but agreed that the district court should have given a lesser included offense instruction for causing something less than great bodily harm:

Generally, wherther the bodily harm was great is a question of fact for the jury. There are some limited exceptions to this rule. For example, certain physical invasions of the body--such as rape, sodomy, and "through and through" gunshot wounds--are instances of great bodily harm that don't require aggravated battery's lesser-included instruction.

Kansas courts have also been persuaded to instruct only on great bodily harm where lasting effects from the injury exist.

This case involves physical invasion--a knife penetrated David's skin twice-and some lasting effects--David's scar wounds. But David's injuries were not as severe as other victim's penetration injuries that this court has found to be great bodily harm that required no lesser-included instruction. [Long list of cases involving various levels of bodily harm.]

As these cases show, a broad spectrum of possible injuries exists. Because of this broad spectrum, usually the jury, not the judge, should analyze the factual nuances in the severity of the victim's injury and determine whether the bodily harm is great or not.

In this case, a jury could have reasonably concluded that David's injuries were less than great bodily harm. Although David was stabbed in two potentially life-threatening areas, tests showed no serious harm, and the doctor testified that David would most likely fully recover.

The COA also held that the district court improperly admitted testimony from the arresting officer regarding his opinion that whether Mr. Taylor was justified in using the knife in self-defense:

Here, the district court made a legal error when it admitted [the officer's] opinions because the opinions didn't conform to K.S.A. 60-456(a)'s requirements for allowing non-expert witness opinion testimony. Non-expert witnesses may only give opinions that are based on their perceptions and that are helpful to understanding their testimony.

The COA agreed that the officer wasn't testifying about things he had perceived nor were they helpful in clarifying his direct-examination testimony.

[Update: the state did not file a PR and the mandate issued on July 7, 2011.]

You don't have to register for that!

2011-05-08T23:26:00.005-05:00

Janine Cox won in State v. Fredrick, No. 102,848 (Kan. April 29, 2011), obtaining an affirmance of the district court’s dismissal of the complaint in a Montgomery County prosecution for failure to register under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq.

The KSC described the facts of the case as follows:

On May 12, 1994, Fredrick was adjudicated a delinquent in the state of Minnesota, based principally upon his commission of acts designated in that state as criminal sexual conduct. The allegation was that when he was age 15, he touched the vagina of a 5-year- old child. Pursuant to Minnesota law, Fredrick was required to register in that state as a "predatory offender" for a period of time, ending on June 19, 2018.

At some point in time, Fredrick moved to the state of Kansas, albeit the record is unclear as to when the move occurred. What we do know is that on December 29, 2008, when Fredrick was 30 years old, the Montgomery County county attorney charged Fredrick with a severity level 5 person felony [for failing to register under KORA].

The district court granted Fredrick’s motion to dismiss the complaint, finding that Mr. Fredrick was not required to register in Kansas under KORA. The State appealed the decision.

On appeal, the State argued that the overarching tenor of KORA reflects an intention that those persons with a juvenile adjudication in another state who move to Kansas must be required to register in Kansas for the same length of time that was required by the adjudicating state. The KSC rejected this argument, noting that K.S.A. 22-4906(i) states that a person “who has been convicted in another state, and who was required to register under that state's laws, shall register for the same length of time required by that state or Kansas, whichever length of time is longer.” The court noted that “convicted” is not the same as “adjudicated” and so held that the statute did not apply to Mr. Fredrick. Thus, the court affirmed the district court’s dismissal.

May 2011 KSC docket

2011-05-05T13:35:00.003-05:00

Here are the criminal cases on the KSC docket for May 17-23, 2011. 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 17--Tuesday--a.m.

State v. Shane Marquis, No. 100,423 (Butler)
Probation revocation appeal (petition for review)
Matthew J. Edge

Right to confront at probation violation proceeding

State v. Anthony Kidd, No. 101,809 (Sedgwick)
Direct appeal; First-degree murder
Shawn E. Minihan

Failure to instruct on voluntary intoxication
Improper comment about "mug shot"

State v. David McDaniel, No. 101,634 (Seward)
Sentencing appeal (petition for review)
Patrick H. Dunn
[Affirmed; Beier; July 15, 2011]

Jurisdiction to impose restitution after sentencing

May 18--Wednesday--a.m.

State v. Scott Cheever, No. 99,988 (Shawnee)
Direct appeal; Capital murder and death sentence
Debra J. Wilson

Whether capital murder statute is constitutional
Improper admission of impeachment and rebuttal testimony
Failure to instruct on felony murder
Failure to strike biased juror
Improper dismissal of potential juror
Improper judicial comment on possible appeal
Failure to prove defendant over 18
Improper aggravating circumstance instructions
Improper migitating circumstance instructions
Prosecutorial misconduct
Relaxed evidentiary standards at capital sentencing unconstitutional

May 19--Thursday--a.m.

State v. Rodolfo Gaona, No. 98,822 (Finney)
Direct appeal (petition for review); Rape/Agg Crim Sodomy
Matthew J. Edge

Improper admission of "expert" testimony
Failure to give lesser included offense
Improper exclusion of defense medical records
Improper admission of prior bad act evidence
Improper admission of prior consistent statements

State v. Xavier Miller, No. 100,247 (Wyandotte)
Direct appeal (petition for review); Second-degree murder (intentional)
Lydia Krebs

Improper instruction on lesser offenses
Improper sympathy instruction

State v. Raymore Levy, No. 101,653 (Shawnee)
Direct appeal; Rape/Agg Crim Sodomy/Agg Ind Lib
Gerald E. Wells
[Affirmed; Biles; June 24, 2011]

Whether KSC should remand for proportionality inquiry
Ineffective assistance of counsel
Admission of "safetalk" interview violates Confrontation Clause

May 20--Friday--a.m.

State v. Bernard Preston, No. 98,629 (Johnson)
Direct appeal (petition for review); Possession with intent
Christina M. Waugh

Illegal stop
Illegal pat-down (no reasonable suspicion)
Illegal search (no probable cause)
Improper admission of refusal to consent to search
Improper admission of prior convictions

State v. Saul Miller, No. 99,232 (Saline)
Direct appeal (petition for review); Rape/Agg Crim Sodomy
Shawn E. Minihan

Retrial after mistrial violates Double Jeopardy
Prosecutorial misconduct
Improper admission of child statements under K.S.A.60-460(dd)

Admission of child's out of court statements violates Confrontation Clause

State v. William McKnight, No. 100,246 (Shawnee)
Sentencing appeal (petition for review)
Carl Folsom

Improper upward sentence modification after revocation

KHP Trooper discredited

2011-04-27T14:32:00.003-05:00

Kevin A. Luibrand and Timothy E. Austin (New York attorneys) won in U.S. v. Murphy and Webster, No. 8:10-CR-312 (N. Dist. N.Y. April 19, 2011) obtaining suppression of evidence and statements in a federal drug conspiracy trial that involved a stop by a Kansas Highway Patrol trooper on I-70 near Alma. I have driven by this ruse several times on the way to and from Salina. Officers place signs that say "Drug Checkpoint Ahead" and "Drug Dogs in Use Ahead" near an exit on I-70 that essentially leads to nowhere (just a ranch and some back roads). The assumption is that persons seeing the signs who have drugs will get off at the exit, so officers lie in wait.

The trooper in this case testified that he saw the subject car fail to signal the lane change when the car exited. But the federal district judge, after reviewing the Government's evidence and evidence produced by the defendants in detail, held that such an observation was not possible:

Based on the findings of fact above, Trooper Stahl’s testimony that he observed Webster commit a traffic violation is not credited and the Government has offered no other objectively reasonable basis to justify the stop. As a result, the stop is unconstitutional.

The Government tried to show how other facts discovered after the stop justified detention, but the judge held that any such discovery was tainted by the initial illegal stop and not sufficiently attenuated to independently justify the detention. As a result, the judge suppressed the evidence.

I wonder how common it is for police officers to just make up facts (like failure to signal or bad tag light)? In any case, this case shows how little it takes to really invade a person's privacy in the name of the war on drugs.

Hawaii has a state constitution

2011-04-27T10:21:00.003-05:00

The Hawaii Supreme Court held in State v. Torres, No. 28583 (Haw. April 15, 2011), that evidence obtained by federal officials in conformity with Fourth Amendment still has to pass muster under the Hawaii Constitution in order to be admissible in state courts. The decision does a nice job of explaining (contrary to so much SCOTUS law), that the exclusionary rule does much more than just deter police misconduct:

As recounted, unlike a conflicts of law approach, an exclusionary rule analysis requires us to consider the principles served by that rule. Bridges identified three purposes underlying our exclusionary rule: judicial integrity, protection of individual privacy, and deterrence of illegal police misconduct.

It's sort of interesting, because the SCOTUS has recognized principles such as judicial integrity when it comes to excluding defense evidence upon lack of proper notice of defense, but fails to recognize it when it comes to the Fourth Amendment. Nice to see a state court take a broader approach.

I wonder if mid-19th century Kansans thought privacy from government intrusion was an important principle?

Acquittal in Lawrence

2011-04-21T13:36:00.002-05:00

Here is a Topeka Capital-Journal article reporting that John Kerns won an acquittal in State v. Walker, a Douglas County attempted murder prosecution.

Bruns appointed to COA

2011-04-19T09:17:00.003-05:00

Here is a Topeka Capital-Journal article reporting that the governor appointed District Judge David Bruns to fill a vacancy on the COA. This will, of course, create a vacancy in the Third Judicial District.

Consumer dispute not theft by deception

2011-04-15T14:14:00.002-05:00

Lydia Krebs won in State v. Hulsey, No. 103,302 (Kan. App. April 8, 2011)(unpublished), obtaining a reversal of a Johnson County felony theft conviction. The circumstances of the case involved a contract to build an in-ground pool and pool house:

We agree with Hulsey that the evidence was insufficient to establish that he obtained control over Cowick's property through a false statement or representation that he had obtained the necessary permits for the project. Cowick admitted Hulsey never explicitly stated he had obtained the permits, outside the contractual promise to do so. The contract did not require Hulsey to obtain the necessary permits and licenses before beginning construction and the evidence indicated he could have obtained the permits anytime before construction, was completed. The contract required Cowick to pay Hulsey $49,000 after the foundation was completed. There is no question that the foundation was completed on April 24, 2007, so Hulsey was entitled to receive a payment from Cowick on that date. Although Hulsey may have breached a future promise to perform under the contract, he made no misrepresentations about present or past existing facts.

In this case, the State exercised its discretion to prosecute Hulsey for a felony offense under the Kansas Criminal Code. It appears that the dispute may have also been governed by the Kansas Consumer Protection Act (KCPA). Although the criminal code is strictly construed in favor of the accused, the KCPA is liberally construed to
protect consumers from suppliers who commit deceptive acts and practices. [T]he definition of “deceptive acts and practices” is much broader than the definition of “deception” under the criminal code. Whereas a criminal charge must be proven beyond a reasonable doubt, a KCPA claim must only be proven by a preponderance of the evidence.

We are mindful of our obligation to review the evidence in the light most favorable to the prosecution. Even applying this standard, we conclude the evidence presented at trial was insufficient to convince a rational factfinder of Hulsey's guilt beyond a reasonable doubt. Hulsey's conviction of theft by deception is reversed and his sentence is vacated.

This is a nice description (and application) of the difference between criminal fraud and consumer protection.

[Update: the state file a PR on May 9, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued October 7, 2011.]

Failure to give instruction requires reversal [PR GRANTED]

2011-04-15T10:03:00.009-05:00

Michelle Davis won in State v. Plummer, No. 101,684 (Kan. App. April 11, 2011), obtaining a new trial in a Reno County aggravated robbery case. During trial, Mr. Plummer requested a lesser-included offense instruction for theft; the district court refused to give the instruction. The COA engaged in a lengthy discussion of the relationship between theft and robbery but ultimately concluded Mr. Plummer was entitled to the requested instruction:

Based on the facts in this case, we believe reasonable jurors could find Plummer guilty of theft, though they might reach some other conclusion. Plummer spent about 2 hours in the Target store picking up merchandise. Some of his actions, as observed by store security personnel, were indicative of an intent to steal, rather than to purchase. Plummer commandeered Target property to facilitate the crime—the knife and backpack—and tampered with other property—he took the shaver out of its packaging. But the security personnel did not immediately challenge Plummer and instead waited until he had begun to leave the store, long after he had taken possession of much of the merchandise. As the Kansas Supreme Court noted in Saylor, the crime of theft is completed once a store patron "conceals" merchandise "on his person" with the intent to permanently deprive the owner of that property. The thief needn't leave or attempt to leave the store.

Accordingly, the trial court erred in failing to charge the jury on theft, as a lesser degree of robbery, in conformity with Plummer's request. We, therefore, reverse and remand for a new trial.

The COA also directed that the district court carefully consider giving lessers for attempt on retrial. Another in a line of cases that causes me to ask: "Why not give the lesser? What is the harm?" Why is there so much reluctance among the judiciary? If we believe in the right to a jury trial, why not let the jury do its work and let the chips fall where they may?

Here is coverage about the case in the Hutch News.

Here is more coverage about the case in the Hutch News.

[Update: the state file a PR on May 16, 2011.]

[Further update: the KSC granted the state's PR on September 21, 2011.]

Not a voluntary encounter [NOT FINAL]

2011-04-15T09:54:00.005-05:00

Rick Kittel and KU Defender Project intern Josh Berry won in State v. Hogan, No. 102,681 (Kan. App. April 15, 2011), obtaining a reversal of a Sedgwick County possession conviction based on an illegal search. The COA majority applied prior KSC precedent regarding voluntary encounters, but held, after a factually-intensive analysis, that the circumstances in this case did not prove a voluntary encounter:

Examining the totality of the circumstances, we are unable to conclude that Hogan freely, voluntarily, specifically, and without implied coercion, gave his consent to search the bag in the back seat. In addition to the equivocal nature of any consent by Hogan, many of the same factors considered in evaluating the detention must be considered here, including the presence of two uniformed and armed officers, the holding of Hogan behind the vehicle by Crowe as Robinson searched the back seat, the continuing activation of the overhead light bar, and the repeated questions from Robinson. Additionally, we note that Robinson utilized aggressive language after Hogan's protestation when he responded, "[Y]ou said I could search, correct?" We view that language as indicating that acquiescence to the officer's extended search was compulsory.

Examining the totality of the circumstances, we conclude that a reasonable person would not have felt free to leave upon Robinson's initial request to search the vehicle, and even if we were to conclude otherwise, any consensual encounter was transformed back to an illegal detention after Hogan objected to further search of his personal stuff. And finally, we are unable to conclude that Hogan's consent to search the black bag was voluntary after he protested to that search.

It's a good lesson that just because the KSC said that some police encounters can become voluntary encounters, these cases are factually intensive and the KSC precedent does not stand for the proposition that all police encounters are voluntary encounters.

[Update: the state filed a PR on May 16, 2011.]

Closure of courtroom requires reversal

2011-04-15T09:44:00.004-05:00

Michelle Davis won in State v. Barnes, No. 102,290 (Kan. App. April 8, 2011), obtaining a new trial in a Wyandotte County aggravated robbery prosecution. During trial, concerns about spectators taking pictures of the jury arose (although they were never confirmed). In any case, the district court closed the courtroom to the public for several parts of the trial, including a rebuttal witness, reading of instructions, and closing argument. The COA reached the Public Trial Clause issue for the first time on appeal and held that the closure was improper:

The State argues that the spectators abused their privileges to observe the witnesses and, therefore, the trial court rightly closed the courtroom.

However, the standard for denying a defendant his or her right to a public trial requires that the decision be no broader than necessary and the court consider reasonable alternatives to closure. Barnes correctly argues the trial court failed to consider reasonable alternatives to closing the courtroom, including banning cell phones from the courtroom.

The trial court could also have removed only Brooks without closing the entire proceeding to the public. The court had satisfied itself that Brooks was not taking pictures of the jury. If the court believed Brooks was acting in an unruly manner, which it may well have, its best option would have been to tell her to leave while allowing the rest of Barnes' friends and family to remain.

The COA correctly recognized that Public Trial Clause violation is not subject to harmless error analysis and reversed.

[Update: the state did not file a PR and the mandate issued on May 12, 2011.]

Must prove all elements

2011-03-21T10:42:00.007-05:00

Joanna Labastida won in State v. Witten, No. 103,476 (Kan. App. March 18, 2011), obtaining a reversal of a Pratt County conviction of sale within 1000 feet of a school. In order to sustain a conviction for sale within 1000 feet of a school, the state has to prove that the school was "a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12." In this case, the state put on evidence that the transaction took place near Liberty Middle School, which was operated by USD 382, but did not present any evidence of what purposes or functions took place at that building:

Although the State presented evidence that Liberty Middle School was operated by a school district, no witness testified as to whether the building was used for one of the purposes set forth in the statute. Witten justifiably relies on State v. Star, 27 Kan. App. 2d 930, 10 P.3d 37, rev. denied 270 Kan. 903 (2000). In Star, the evidence at trial established that the transactions occurred within 1,000 feet of "Hickok School." The evidence included a diagram of the area of the sale, including the school parking lot and school grounds. However, no evidence was presented that Hickok School was a structure used by a school district "for any of the uses listed in the statute." The Star court found that in order to sustain a conviction for the crime of the sale of cocaine within 1,000 feet of a school, the State was required to present evidence that the structure referred to as a school satisfied the definition in K.S.A. 1999 Supp. 65-4161(d). "Such evidence is necessary to prove a necessary element of the offense, and where lacking, a jury cannot be allowed to speculate or infer through its own observations that the structure complies with the statutory definition of a school."

On appeal, the State argues that the court should take judicial notice of the function of the school under K.S.A. 60-409 and that "[w]ell informed persons in Pratt County . . . are aware of the existence and nature of Liberty Middle School." However, the Star court specifically rejected the State's arguments that members of the jury could bring their common sense and background of experiences to take notice that the building was operated as a school.

Because the state failed to put on sufficient evidence, the COA remanded for resentencing for simple sale.

[Update: Mr. Witten filed a PR from the part of the decision he lost.]

[Further update: the KSC denied Mr. Witten's PR and the mandate issued on October 11, 2011.]

Failure to inquire into jury verdict

2011-03-21T10:31:00.013-05:00

Carl Folsom won in State v. Gray, No. 101,481 (Kan. App. March 18, 2011), obtaining a new trial in a Reno County agg assault on a LEO prosecution. The district court failed to comply with Kansas statute, which requires that it confirm the jury's verdict in court (this is different than polling the jury, which was waived in this case). The COA cited a previous case (blogged about here) and held that failure to confirm the verdict in court left it without confidence of a unanimous verdict:

The reason why K.S.A. 22-3421 requires the trial court to inquire in open court whether the jury agrees with the verdict, even when the parties waive polling, is to ensure a defendant's constitutional right to a unanimous verdict and to safeguard the concept of finality with respect to the jury verdict.

"By requiring inquiry as to whether the verdict is the jury's verdict, K.S.A. 22-3421 gives jury members the opportunity to express disagreement with or dissent from the verdict in open court." In this case, the trial judge simplyasked the jury foreperson whether the jury had reached a verdict. At no point after having heard the verdict read in court were the jurors given an opportunity to express disagreement with the verdict. Therefore, asking the jury foreperson if a verdict has been reached does not accomplish the same objective as inquiring whether the verdict is the jury's verdict.

The trial court's failure to follow the statutory mandate of K.S.A. 22-3421 to inquire as to whether the verdict was the jury's verdict was reversible error. Consequently, a new trial is warranted in this case. To hold otherwise would ignore the importance of the requirements of unanimity and finality with respect to jury verdicts.

Here is coverage of the case in the Hutchinson News.

[Update: the state filed a PR on April 12, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on September 30, 2011.]

Agg battery conviction reversed for failure to give lessers [NOT FINAL]

2011-03-17T14:05:00.001-05:00

Christina Waugh won in State v. Howard, No. 102,738 (Kan. App. March 11, 2011)(unpublished), obtaining a new trial in a Sedgwick County aggravated battery prosecution. The COA rejected a unanimity claim, but held that a new trial was required based on failure to give a requested lesser for simple battery:

Here, instructing the jury on the lesser included offense of battery was supported by the evidence. When a defendant is charged with aggravated battery, “if there is evidence that the harm was slight, trivial, moderate, or minor, then the trial court must give a lesser included instruction.” The record indicates that Howard put the fan cord around Johnson's neck. However, the officer that interviewed Johnson immediately after the incident did not notice any injuries other than a couple of marks on the right side of Johnson's neck. The officer did not notice the marks until Johnson pointed them out to him. Further, there was no evidence that Johnson was taken to the hospital for her injuries or that the injuries required any treatment. Since there was no evidence presented of great bodily harm or disfigurement, the jury could have convicted Howard of simple battery. Thus, the district court erred in refusing to instruct the jury on simple battery as a lesser included offense of aggravated battery as requested.

Another example of letting the jury do its job.

[Update: the state filed a PR on April 11, 2011.]

Improper impeachment with prior bad acts

2011-03-10T04:28:00.001-06:00

Heather Cessna won in State v. Cook, No. 102,375 (Kan. App. March 4, 2011), obtaining a new trial in a Montgomery County possession prosecution. At trial, Mr. Cook took the stand in his own defense and claimed that police officers planted drugs on him and then threatened to prosecute him unless he testified regarding a shooting that he knew nothing about. During cross-examination, over objection, the state cross-examined Mr. Cook about a prior possession conviction. The COA held that the evidence was improperly admitted:

The problem in the case at bar is that the trial court did not inquire of, nor did the prosecutor cite, a provision of K.S.A. 60-455 for how Cook's prior conviction was admissible. The prosecutor's rationale for admitting Cook's prior conviction was that it showed that Cook was biased, that he lied about not having a place to live in Kansas as required by the conditions of his probation, and that Cook could not just get up on the stand and lie. The court did not determine whether the evidence was relevant to prove a material fact under K.S.A. 60-455 such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

. . . .

The State fails to establish the relevance of Cook's prior conviction under Kansas law. His prior conviction is probative because it has a tendency to prove the fact that he knew possessing marijuana was illegal. However, his prior conviction is not material because the fact that Cook knew possessing marijuana was illegal was already established by his testimony and any other way that he knew it was illegal was not a fact that is significant under the law of the case and properly at issue. Without establishing the materiality prong of the relevance test, the trial court erred in admitting Cook's prior conviction.

. . . .

Evidence to impeach a witness' credibility is relevant. However, the admission of another crime to impeach a witness' credibility is governed by K.S.A. 60-421.

K.S.A. 60-421 prevents the State from using a defendant's prior convictions for impeachment unless the defendant opens the door by introducing evidence that he or she is credible. A criminal defendant does not place his or her credibility in issue merely by taking the witness stand. See State v. Macomber, 241 Kan. 154, 157-58, 734 P.2d 1148 (1987) (reversing defendant's conviction because the State improperly questioned the defendant regarding prior crimes during cross-examination).The court in Macomber stated: "A defendant must have the right to deny the charges against him and to maintain that he has consistently done so without fearing such testimony will render evidence of other crimes admissible."

While there may be opportunities to use K.S.A. 60-455 evidence to impeach the credibility of the testifying witness, in Cook's case the prejudice of the evidence is overwhelming in comparison to the materiality of the evidence. Under the facts of this case, exactly how Cook knew marijuana was illegal and why he did not have a place to live in Kansas, does not open the door to evidence of Cook's prior conviction despite the ensuing credibility battle.

The COA held that this error, along with failure to give a cautionary instruction and some prosecutorial misconduct, required reversal.

[Update: the state did not file a PR and the mandate issued on April 7, 2011.]

Reversal for failure to give lesser [PR GRANTED]

2011-03-10T04:08:00.003-06:00

Shawn Minihan won in State v. Simmons, No. 102,715 (Kan. App. March 4, 2011), obtaining a new trial in a Sedgwick County aggravated battery prosecution. The state charged Mr. Simmons with severity level 4 aggravated battery. At trial, the parties agreed that the district court should give a lesser-included offense instruction for simple battery, but the district court refused because the instructions had already been prepared. The jury returned a verdict of severity level 7 aggravated battery. The COA held that the district court should have instructed as the parties requested:

The crime of aggravated battery, thus, entails differing elements and punishments depending on the defendant's intent (intentional versus reckless action); the means (deadly weapon or manner with the potential for great bodily harm, disfigurement, or death); and the degree of injury to the victim (great bodily harm, bodily harm, or mere physical contact). Depending on the facts of a given case, the permutations can be both numerous and challenging. The statutory definitions effectively create several lesser included offenses within the general rubric of aggravated battery.

In addition, simple or misdemeanor battery commonly must be considered as a possible lesser included offense. As provided in K.S.A. 21-3412(a)(1), (2), battery is either "[i]ntentionally causing physical contact with another person when done in a rude, insulting, or angry manner" or "intentionally or recklessly causing bodily harm to another person." As with the levels of aggravated battery, the distinction between the misdemeanor and felony offenses may turn on the degree of harm or the means used to inflict the harm. If the victim suffers "great bodily harm," the crime necessarily is a felony. Likewise, if the defendant uses a deadly weapon or acts in a way that could cause great bodily harm, the crime is a felony even though the victim may have minor or no physical injuries.

. . . .

When a defendant has made a sufficient request for an instruction on a lesser included offense, as Simmons has here, we treat the failure to give the instruction as a question of law, since no credibility determinations or other weighing of evidence figures into the analysis. Our review, therefore, is plenary, and we owe no particular deference to the trial court's decision. Here, the trial court never really passed on the legal propriety of giving an instruction on simple battery as a lesser included offense of the aggravated battery charge. But, instead, the trial court rejected the request simply in the name of judicial efficiency.

. . . .

In considering whether the trial court should have given an instruction on simple battery as a lesser included offense, we must determine if a jury reasonably could have returned a verdict on that charge. That is, could a jury have found the elements of simple battery to the exclusion of the elements of aggravated battery? In this case, we believe so. A jury would have to find both that Terry suffered bodily harm rather than great bodily harm and that the harm was not inflicted in a manner that could have resulted in great bodily harm, disfigurement, or death. Commonly, each of those determinations presents a fact question for a given jury to resolve. Only in particularly extreme circumstances have the Kansas courts favored precluding a jury from considering those issues.

. . . .

In light of the extensive appellate authority on this issue, the trial court should have given a simple battery instruction as a lesser included offense on the aggravated battery charge against Simmons. In short, requisite issues—the degree of harm and the manner in which the defendant caused the harm—typically go to the jury for determination. On the facts here, we believe a reasonable jury could have, though not necessarily would have, returned a verdict of guilty on simple battery had that option been made available.

I have often wondered (sometimes out loud in court), why (some) courts are so reluctant to let juries to their job. Why not, as a policy matter generally give the lessers and let the jury sort it out? If the evidence of the greater offense is so strong, then the jury will convict of the greater. If the evidence of the greater offense is not so strong, that's when the jury should convict of a lesser. Judicial reluctance seems to stem from an impression that juries might convict of lessers where (in the view of the judge) it shouldn't. But that's why we have jury trials! This decision seems to agree.

[Update: the state filed a motion for rehearing on March 10, 2011. The COA denied the motion and issued a clarified opinion on March 30, 2011.]

[Further update: the state filed a PR on April 4, 2011. Mr. Simmons filed a cross-PR on April 7, 2011.]

[Further update: the KSC granted the state's PR and denied Mr. Simmons' PR on September 21, 2011.]

Distinguishing Daniel [PR GRANTED]

2011-03-05T03:30:00.005-06:00

Michelle Davis won in State v. Dennis, No. 101,052 (Kan. App. Feb. 4, 2011)(unpublished), obtaining reversal of several Butler County drug convictions. The main issue was whether evidence illegally obtained as the result of a vehicular search incident to arrest should be suppressed. The state relied on Daniel, a recent KSC case, which held that because a recently amended statute purported to make such searches legal, the good faith exception to the exclusionary rule applied. The COA factually distinguished that case:

We are not persuaded that Daniel controls the outcome here. First, the officer here made no claim of reliance on K.S.A. 22-2501(c), nor does the record indicate any such reliance. Second, the State has not argued (until its supplemental brief) that the officer relied on the statute; instead, the State has argued that the officer acted “within the permitted parameters of a search incident to arrest as set forth ... in New York v. Belton.” Third, here the appellant has indeed argued that the vehicle was no longer within his “immediate presence,” whereas Daniel made no such argument and the Supreme Court specifically noted the impact of this distinction in its analysis.

Here, we must engage in an analysis of a different sort; the issue here turns not on whether the officer could have objectively relied on the constitutionality of the statute, but rather on whether the officer could have objectively relied on existing case law in conducting his search of Dennis' vehicle. We have concluded he could not, and therefore the State is not entitled to a good-faith exception to the exclusionary rule.

The COA does a nice job of explaining that the state of the law regarding such searches was hardly "settled" at the time of the search in this case. As a result, the COA held the illegally obtained evidence should be suppressed:

In summary, our Supreme Court's recent decision in Daniel is not controlling here because the State has not argued and the record does not support any reliance on K.S.A. 22-2501(c). Instead, the State has urged us to hold that the search of Dennis' vehicle was based on the officer's good-faith reliance on "established law." We cannot do so because neither Kansas law nor federal law should have given the officer any comfort in searching the vehicle after Dennis was secured and no longer within the immediate presence of the interior of that vehicle.

I might also note that on February 17, 2011, I filed a cert petition in Daniel itself in light of a pending SCOTUS case involving the application of the good-faith exception to the Gant error. You can read SCOTUSblog coverage of that pending case here.

[Update: the state filed a PR on March 4, 2011.]

[Further update: the KSC granted the state's PR on May 31, 2011. The case will likely be argued late next fall.]

Iowa has a state constitution

2011-03-03T09:36:00.003-06:00

The Iowa Supreme Court became the first state supreme court to reject the wholesale stripping of privacy rights for parollees, as described by the SCOTUS in Samson v. California, 547 U.S. 843 (2006). Relying on its state constitution, the Iowa Supreme Court, in State v. Ochoa, 08-0412 (Iowa Dec. 17, 2010), held that parollees retain a privacy interest in their private homes.

The case presents a nice primer on state constitutional law jurisprudence. The Iowa Supreme Court observed that it had historically treated with a "lockstep" approach, where "a state court adopts prevailing federal authority in its interpretation of parallel state constitutinal provisions, even though theoretically recognizing their independent nature." This is almost univerally the approach used by the Kansas Supreme Court with regard to constitutional criminal procedure questions.

The Iowa Supreme Court held that it would no longer use this approach:

In order to resolve any inconsistency in our prior cases, we now hold that, while United States Supreme Court cases are entitled to respectful consideration, we will engage in independent analysis of the content of our state search and seizure provisions. A Fourth Amendment opinion of the United States Supreme Court, the Eighth Circuit Court of Appeals, or any other federal court is no more binding upon our interpretation of article I, section 8 of the Iowa Constitution than is a case decided by another state supreme court under a search and seizure provision of that state‘s constitution. The degree to which we follow United States Supreme Court precedent, or any other precedent, depends solely upon its ability to persuade us with the reasoning of the decision.

This approach requires the state supreme court justices to independently determine, for example, whether a given type of search is "reasonable" under the state constitution. I think this is the right approach for any judicial officer that has taken an oath to uphold the constitution of a particular state.

Using this approach, the Iowa Suprme Court held that parollees continue to have privacy rights in their private homes:

Even assuming a role for balancing, we believe that the Samson approach undervalues the importance of a parolee‘s interest in the home. The home plays a central role in a person‘s life, providing sanctuary, comfort, seclusion, security, and identity. The sanctity of the home was a prominent part of the legal landscape in the Wilkes and Paxton cases and has been repeatedly emphasized by the United States Supreme Court. Invasions of the home by government officials cannot be regarded as constitutionally insignificant. As in the majority opinion in Katz, we find that the protection afforded by article I, section 8 extends beyond privacy and includes at least some notion of place and security.

. . . .

We also think Samson is fundamentally flawed by regarding a parolee as more akin to a prisoner than a probationer. It may be conceded that a prison "shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." Yet, a parolees home is nothing like a prison cell. Instead, it is indistinguishable from the home of any other citizen. As noted in Morrissey v. Brewer, 408 U.S. 471, 82 (1972), the condition of a parolee is "very different from that of confinement in a prison."

. . . .

In sum, we reject the holding of Samson under the Iowa Constitution. We conclude that a parolee may not be subjected to broad, warrantless searches by a general law enforcement officer without any particularized suspicion or limitations to the scope of the search. The power asserted by the State in this case too closely resembles authority pursuant to a general warrant, provides no meaningful mechanism to control arbitrary searches, avoids the warrant preference rule that this court has traditionally recognized, utilizes a balancing test that improperly weighs the interests involved, and does not adequately recognize the security and sanctity interests of parolees in their home.

A lot of background in this case, both on state constitutional law and the law regarding parollees and privacy.

New Mexico has a state constitution

2011-03-03T09:25:00.004-06:00

The New Mexico Supreme Court, in State v. Levya, No. 32,067 (N.M. Feb. 17, 2011), applied its state constitutional provisions prohibiting unreasonable searches and seizures to clarify that officers conducting a legitimate traffic stop should be limited to questioning related to that traffic stop. Even though the SCOTUS has recently watered down the "scope" limitation in such situations, many state supreme courts are holding fast under their state constitutions. The New Mexico Supreme Court aptly described its rationale:

Requiring a reasonable justification for the initial stop and that all questions asked during the stop be reasonably related to the reason for the stop or otherwise supported by reasonable suspicion … ensures that investigating officers do not engage in ‘fishing expeditions’ during traffic stops.

It's nice to see a state supreme court apply both the letter and spirit of its state constitution to protect its citizens from overreaching police activity.

FSA applied retroactively

2011-03-01T15:44:00.004-06:00

Kirk Redmond won a sentencing victory today in in U.S. v. Terez Warren, Case No. 10-20125-01 (D. Kan.), when Judge Vratil held that the Fair Sentencing Act (modifying the mandatory minimums to reduce the sentencing disparity between crack an powder cocaine) applied to Mr. Warren despite the fact that his offense conduct pre-dated the FSA.

The FSA, which became effective November 1, 2010, does not specifically include language supporting its retroactive application. Nonetheless, there are several arguments that the FSA should apply to those persons who committed their crimes before the law became effective but who are being sentenced afterwards. See U.S. v. Douglas, Case No. 09-202-P-H (D. Me. 2010) (applying the FSA retroactively).

In an oral ruling, Judge Vratil held that Judge Hornby's opinion in Douglas was persuasive. Judge Vratil further held that the language in U.S. v. Lewis, 625 F.3d 1224 (10th Cir. 2010), stating that the FSA is not retroactive did not apply to these facts, as sentencing was still pending in Mr. Warren's case. Redmond also argued that Lewis provides supportive dicta to applying the FSA to all pending sentencings. However, Judge Vratil did not decide this issue. Nonetheless, this is a very good win for Kirk and a good sign for anyone who practices federal criminal defense in Kansas City.

Defense attorney's job is to defend

2011-02-25T03:01:00.000-06:00

Meryl Carver-Allmond won in State v. Charles Smith, No. 99,655 (Kan. Feb. 11, 2011), obtaining a new trial in a Douglas County robbery conviction. We blogged about this case here when Meryl won in the COA. The state filed a PR, which the KSC granted, ending in the same result--a new trial:

However, the attorney's presentation of the withdrawal motion suggests that the problem may not have been based upon the falsity of the facts Smith wanted introduced. Those facts, e.g., whether Smith suffered from a physical infirmity or whether he had income from a job or a workers compensation claim, were easily verifiable and apparently the attorney did have knowledge that not all of the facts were false because he related that Smith was receiving workers compensation benefits. Moreover, if the problem had been false facts, the attorney could have simply advised the court that his client wanted him to introduce false testimony and the matter could have been quickly resolved.

Instead, the defense attorney, Rumsey, commenced his presentation by explaining that he was convinced from viewing the videotape that his client was guilty. He then related that the evidence Smith wanted to introduce would create an inference that Smith lacked the motive and ability to commit the robbery. Finally, Rumsey declared that the problem was that Rumsey would know that Smith's evidence would be false or fraudulent. In context, the argument suggests that Rumsey believed that he could not introduce any evidence, even truthful facts, if that evidence might create an inference that Smith was not guilty, because Rumsey was convinced of Smith's guilt, i.e., the inference created by the evidence would be false or fraudulent. The State makes that very argument on appeal, asserting that any attorney viewing the videotape would identify Smith as the robber and would thereby be precluded from presenting the evidence Smith wanted introduced.

The fundamental flaw in Rumsey's apparent withdrawal motion argument (and the State's position on appeal) is that it ignores the separation of duties in a criminal prosecution. "The lines of demarcation separating the duties of each of the players in a criminal trial are sacrosanct, i.e., the prosecutor representing the people; the defense attorney representing the accused; the trial judge representing the interpreter of the law; and the jury representing the finder of facts." State v. Kemble, 291 Kan. 109, 238 P.3d 251, 260 (2010). If any of those lines are crossed, the criminal justice system is compromised.

Here, the jury, as factfinder and final arbiter of guilt, had the sole responsibility to view the videotape, to look at the defendant, to make a finding as to whether the person shown in the videotape was the defendant, and, ultimately, to determine whether the defendant was guilty of robbery. Rumsey's duty as defense counsel was to advocate for his client, including the presentation of any truthful, relevant evidence that would assist in his client's defense. Rumsey exceeded the scope of his duties as defense counsel and invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty. Accordingly, if Rumsey's refusal to introduce evidence on Smith's behalf was based upon Rumsey's out-of-bounds determination of guilt, rather than on the falsity of the evidence, Smith's dissatisfaction was justified.

A good result after a long wait.

State failed to preserve departure notice issue

2011-02-24T03:15:00.002-06:00

Janine Cox won in State v. Washington, No. 103,850 (Kan. App. Feb. 11, 2011)(unpublished), affirming Judge Hampton's downward durational departure sentence in a Ford County possession case. Mr. Washington's presumptive prison sentence was between 28 and 32 months. In recognition of time spent in jail that would not otherwise be credited, Judge Hampton, on his own motion, imposed a downward durational departure to 23 months. The state appealed. [Really? Over five months?]

The COA affirmed. The state's main claim on appeal was that it did not receive notice of Judge Hampton's intent to depart. The COA held that, while the notice was not reasonable, the state had failed to preserve the issue:

However, as noted by Washington, the State did not object to the lack of notice at the sentencing hearing. Generally, "where a defendant fails to object to the notice of departure at the time of sentencing, any issue relative to the departure is not preserved for appeal." In the instant case, the State did not object to the lack of notice after the court pronounced the sentence, requested a continuance, or made a proffer of the evidence that would have been presented to refute the departure factors. Accordingly . . . we find that the issue has not been preserved for appeal.

So, procedural default works both ways after all!

[Update: the state did not file a PR and the mandate issued on March 18, 2011.]

Nice article on innocence investigation

2011-02-15T12:25:00.004-06:00

Here is an article titled "Is Convicted Murderer Really a Victim?" reporting on the Rhodes case, which has been investigated by Ron Sylvester from the Wichita Eagle and Rebecca Woodman and her wrongful convictions class at Washburn Law School. (Here is a previous blog entry on the team-up). There is also a link to their live chat on the issue from Monday. The article does a nice job of describing the proof discrepancies and the problems associated with trying to prove or disprove innocence when the evidence is lost or destroyed.

April 2011 Special KSC Docket (Salina)

2011-02-13T11:28:00.006-06:00

Here are the criminal cases on the KSC docket for April 13, 2011. This was a special setting of the KSC and the first time in modern memory that the Court sat outside of Topeka (here is the news release on the special setting).

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.

April 13--Wednesday--p.m.

State v. Vernon Gilliland, No. 102,265 (Saline)
Direct appeal; Agg Crim Sodomy
Heather Cessna (brief); Patrick H. Dunn (argue)

Failure to suppress statements
Improper exclusion of evidence under rape shield
Failure to hold taint hearing on investigative techniques
Improper instruction (Salts)

State v. Myron Coleman, No. 101,621 (Reno)
Direct appeal (petition for review); Possess cocaine with intent
Randall L. Hodgkinson

Failure to suppress (lack of reasonable suspicion)
Failure to suppress (no authority to detain parollee)

State v. Ho Duong, No. 101,700 (Sedgwick)
Direct appeal; Agg Ind Liberties
Michelle Davis

Prosecutorial misconduct
Failure to give eyewitness ID instruction
Improper Allen instruction
Improper imposition of lifetime electronic monitoring

I beg your pardon....

2011-02-08T17:17:00.003-06:00

Alice White and Jean Phillips of the KU Project for Innocence & Post-Conviction Remedies (formerly known as the Defender Project) won a pardon last month for Frederick Umoja, who was convicted of third-degree robbery in 1969. The pardon was issued by Gov. Mark Parkinson.

According to this LJWorld article, Umoja was one of the "Wichita 8," a group of black defendants convicted in 1969 by an all-white Sedgwick County jury. The trial judge (former AG Robert Stephan) described the racial atmosphere at the trial as "very polarized." Umoja had been living in exile in Africa since 1970, as he fled the country before sentencing. Before leaving office, Gov. Parkinson pardoned three of the Wichita 8, noting that the men were convicted of a crime that had since been repealed.

No proper extension = no jurisdiction to revoke probation

2011-01-31T09:18:00.005-06:00

Lydia Krebs won in State v. Hoffman, No. 103,133 (Kan. App. Jan. 28, 2011), reversing a Reno County probation revocation. The issue arose because of an improper extension of Mr. Hoffman's probation term:

the order at issue in this case did not inform Hoffman that he was entitled to a modification hearing and a judicial finding of necessity prior to having his probation extended. Again, the January 2007 order extending probation stated:

"Whereas it appears that the defendant has not completed fines, court costs, restitution or a sex offender treatment program in this matter.
"Now therefore it is ordered that the defendant's probation be extended for one year unless the defendant show cause why this order should not be issued by the 19th day of March, 2007.
"It is further ordered that the defendant shall be served with this order on or before the next reporting date of the defendant."
Because the order did not inform Hoffman that he was entitled to a modification hearing and a judicial finding of necessity prior to having his probation extended, Hoffman's consent to the order cannot be construed as a valid substitute for the procedural requirements of K.S.A. 2009 Supp. 21-4611(c)(8). For this reason, the January 2007 order extending Hoffman's probation was invalid, which means Hoffman's term of probation expired on March 19, 2007. Because the State did not commence proceedings to revoke Hoffman's probation within 30 days after his probation expired, the district court did not have jurisdiction to revoke Hoffman's probation. As such, the district court erred in denying Hoffman's motion to dismiss and granting the State's motion to revoke his probation.

We see these kinds of issues every now and then in probation revocation appeals. But if we don't find it until appeal, the underlying sentence is likely served out. So trial practitioners really need to carefully review the documents, even in what appears to be a routine probation revocation proceeding.

[Update: the state agreed to not file a PR, so the mandate quickly issued on February 7, 2011.]

Still reversed [PRs GRANTED]

2011-01-31T08:56:00.007-06:00

Several months ago we blogged (here) about Michael Whalen's win in a sexually violent predator act prosecution. As reported there, the COA expressed harsh concern for what appeared, based on the state of the record at that time, to be the state using manufactured evidence. As also updated in that blog entry, the state later "found" some of the reports at issue and added them to the record and sought rehearing, which the COA granted.

The COA again reversed in In re Ontiberos, No. 100,362 (Kan. App. Jan. 28, 2011). The COA kept its original analysis regarding the right to effective assistance of counsel and misconduct. Regarding the use of the reports, the COA still was pretty harsh:

But the fundamental fact is clear; the documents contained in Exhibit 1 were not admitted into evidence and the State's attorney used them to cross-examine Ontiberos and his expert witness as if they were. The court explicitly stated the documents were not to be considered by the jury. We believe the prejudicial use of these records by the State was improper and denied Ontiberos a fair trial. Above all, the use of legally admissible evidence relevant to the issues is a hallmark of a fair trial.

. . . .

Ontiberos argues the State used a nonexistent prison report to cross-examine his expert, Dr. Barnett. In fact, in its brief the State conceded the point and told us the prison disciplinary report did not exist. . . . Then, after receiving our opinion criticizing the use of nonexistent evidence, the State claimed to have "found" the report buried in Exhibit 1 and asked us to rehear the matter. In the interests of justice, we did so.

The "found" document does not refer to a knife. It does report a disciplinary action taken by a prison official against Ontiberos in 1991 for having an ink pen with duct tape wrapped around it. The report concluded it was "less dangerous" contraband according to prison rules.

We cannot ignore the State's exaggeration of this report. Counsel asked Dr. Barnett, who was testifying for Ontiberos, about a 2003 prison incident where Ontiberos fashioned a knife out of a pen and duct tape. Assuming for the sake of the State's argument this time that this "found" document is the report that serves as the basis for the State's question, we see two obvious errors; the date of the incident and calling the contraband a knife.

Because Ontiberos' attorney did not object to these improper uses and because of other deficient performance, the COA remands for a new trial.

[Update: the state filed a PR on February 22, 2011 and Mr. Ontiberos filed a cross-PR on March 8, 2011.]

[Further update: the KSC granted both PRs on September 21, 2011.]

Here is coverage on What the Judge Ate for Breakfast.

March 2011 KSC Docket

2011-01-28T10:45:00.005-06:00

Here are the criminal cases on the KSC docket for March 7-11, 2011. 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.

March 7--Monday--a.m.

State v. Dana Deal, No. 98,292 (Cowley)
Direct appeal (petition for review); Second-degree murder (unintentional)
Lydia Krebs

Insufficient evidence of unintentional but reckless act
Failure to grant continuance
Improper instruction on duty to retreat
Improper admission of prior bad act evidence

State v. Carlos Montes-Mata, No. 98,883 (Lyon)
State appeal (petition for review)
Patrick H. Dunn
[Affirmed; Stutzman; June 24, 2011]

Statutory speedy trial violation

March 8--Tuesday--a.m.

State v. Jamie Fredrick, No. 102,848 (Montgomery)
State appeal
Janine Cox
[Affirmed; Johnson; April 29, 2011]

Offender registration for person adjudicated as juvenile in other state

State v. Corinthian Bricker, No. 99,394 (Johnson)
Motion to Withdraw Plea (petition for review)
Lydia Krebs
[Affirmed; Nuss; June 3, 2011]

Denial of motion to withdraw plea

March 9--Wednesday--a.m.

State v. Samuel Rochelle, No. 101,341 (Saline)
Direct appeal; Agg Crim Sodomy/Agg Ind Liberties
Meryl Carver-Allmond (brief); Randall L. Hodgkinson (argue)

Allowing comfort person to sit with witness during testimony
Improper Allen instruction
State cross-appeal from downward departure sentence

March 10--Thursday--a.m.

State v. Nathan Inkelaar, No. 101,987 (Sedgwick)
Direct appeal; Rape/Agg Crim Sodomy/Agg Ind Liberties
Ryan Eddinger

Improper admission of prior bad act evidence
Prosecutorial misconduct
Failure to prove and instruct jury on age of defendant
Improper exclusion of third-party evidence

State v. Allen Jaben, No. 102,383 (Johnson)
State appeal (transfer)
William K. Rork

Expungement

State v. Anthony Barnes, No. 100,719 (Sedgwick)
Direct appeal; First-degree murder
Heather Cessna

Failure to investigate competency to stand trial
Improper jury trial waiver
Improper finding of specific intent

March 11--Friday--a.m.

State v. Lafayette Cosby, No. 100,839 (Douglas)
Direct appeal; First-degree murder
Korey A. Kaul

Failure to instruct on voluntary manslaughter
Improper exclusion of defense evidence
Insufficient evidence of premeditation
Prosecutorial misconduct

No safety concerns

2011-01-25T14:28:00.001-06:00

Washburn student intern Joshua Mikkelsen and I won in State v. List, No. 102,851 (Kan. App. Dec. 23, 2010)(unpublished), reversing a Johnson County drug conviction. The COA agreed that law enforcement officers violated the Fourth Amendment when they detained Ms. List:

The officers decided to approach List and McDowell because it appeared to the officers that the two were arguing. Kearney testified that the purpose of the stop was to “make sure that all parties involved were safe and that everything was okay” and “that there was no crime that was occurring at the time.” The justification for the stop was limited to making sure List and McDowell were safe and presumably to prevent the verbal argument from escalating into a physical altercation. From the record, it appears that any argument between List and McDowell was over when the officers made contact. In fact, Kearney testified that when he made contact with List, he believed the argument was over. Further, McDowell had walked away from the vehicle and was already 50 feet away from List. Both parties appeared to be safe, and the officers had no indication that List and McDowell were going to continue arguing or physically harm each other. After establishing that both were safe, the scope of the public safety stop was finished. Neither the initial request for documentation proving List's identity nor the follow-up request for documentation proving List possessed a license to drive were necessary to effectuate the purpose of the stop.

Based on the facts presented and the applicable law, we find Kearney's request to List for identifying documentation exceeded the scope of the safety stop and thus violated List's constitutional rights.

Another in a series of cases where appellate courts hold tight on "safety" stops.

[Update: the state filed a PR on January 24, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on March 1, 2011.]

Date of prior controls person/nonperson decision

2011-01-22T15:05:00.001-06:00

Ryan Eddinger won in State v. McKinney, No. 102,906 (Kan. App. Dec. 17, 2010), obtaining a new sentencing hearing in a Leavenworth County failure to register prosecution. The issue involved whether a 2002 Oklahoma conviction for failure to register should be scored as a person or nonperson felony for the current offense. The COA applied a very recent case where the KSC held that the person/nonperson classification must take place in light of Kansas law at the time of the prior offense:

Our Supreme Court has recently resolved this question in State v. Williams. No. 98,667 (Kan. 2010): "In designating these [out-of-state] crimes as person or nonperson, the comparagle offeses in Kansas shall be determined as of the date the defendant committed the out-of-state crimes." This promotes the standard principle that the punishment for an offense is fixed as of the date the offense was committed.

McKinney's Oklahoma conviction for failing to register as a sex offender was a felony under Oklahoma law. But the comparable offense in Kansas was a nonperson felony in 2002. So the district court was wrong when it classified McKinney's Oklahoma conviction as a person felony for the purpose of calculating McKinney's criminal-history score.

This is a nice example of how a case can be in the "zone of victory." We lost the Williams case, but it is likely to have a pretty positive impact on lots of other defendants.

The question we have been asking is: how do you classify pre-1993 out-of-state convictions? Becuase there were no person/nonperson felonies at that time. We (and some other attorneys around the state) have been arguing that, under Williams, all pre-1993 out-of-state convictions should be classified as non-person.

[Update: the state did not file a PR and the mandate issued on January 21, 2011.]

Call for backup matters

2011-01-21T13:48:00.006-06:00

Carl Folsom won in State v. Thomas, No. 98,123 (Kan. Jan. 21, 2011), reversing a Geary County possession conviction on Fourth Amendment grounds. After a brief encounter with Ms. Thomas appeared to be over, an officer asked if he could ask her a few more questions, resulting in an extended encounter, which included calling for back up. The state's main argument was that the extended encounter at issue was voluntary and, therefore, that the Fourth Amendment not implicated. The KSC reviewed caselaw acknowledging that, by itself, law enforcement going up to someone and asking questions does not turn a voluntary encounter into an investigatory detention. But the KSC also held that the facts in this case went beyond simple asking questions. In particular, the KSC held that calling for backup would have a similar effect to the presence of more than one officer--although it did not by itself transform an encounter, it was a very relevant factor in this case:

We conclude that Officer Brown's call for back-up, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Brown's questions or otherwise terminate the second stage of the encounter. More specifically, both before and after making the call, Brown repeatedly asked Thomas questions about her drug use and possession. After the call, Thomas emptied her pockets for him, apparently in an attempt to prove her denials. He then asked to feel inside her pockets, and she threw her hands in the air. After Brown again told Thomas to "be honest with me," she confessed to possessing two crack pipes. In contrast to the first stage, at no time during the second stage did Brown tell Thomas she was free to leave.

The KSC went on to hold that the officer did not have reasonable suspicion to detain Ms. Thomas and, therefore concluded that the motion to suppress should have been granted.

This a nice example of how, even when an officer asks "Can I ask you just a couple more questions?" (i.e. the Lt. Columbo gambit), it does not necessarily make the resulting encounter voluntary. The circumstances of the resulting encounter still determine that question.

Here is coverage on FourthAmendment.com.

Kansas Defender applicant for COA

2011-01-19T10:47:00.005-06:00

Here is a press release stating that 19 attorneys, including 6 judges, have applied for the vacant position on the Kansas Court of Appeals. As you can see, Randall Hodgkinson, co-author of this blog (and gifted appellate advocate), is an applicant. The position opened up when the Honorable Nancy Moritz Caplinger was appointed to the Supreme Court.

The nominating commission will interview the candidates February 17-18. Members of the public are encouraged to comment on the qualification of any of the applicants by writing to Anne E. Burke, c/o Carol G. Green, Clerk of the Appellate courts, 301 SW 10th Avenue, Topeka, Kansas. All written comments will be distributed to the full Commission for its review.

Here is coverage of the applicants by the CJonline and by the LJWorld.

[Update: here is the short list forwarded to the governor. It does not include Randall.]

[Further update: here is a Topeka-Capital Journal article reporting that the governor appointed District Judge David Bruns].

Finding of no possession upheld

2011-01-14T09:46:00.003-06:00

Janine Cox won in State v. Crawford, No. 103,524 (Kan. App. Jan. 7, 2011)(unpublished), affirming Judge Sachse's dismissal of a Franklin County possession with intent to sell prosecution at preliminary hearing. The COA reviewed the record and law regarding constructive possession cases and held that the district court correctly dismissed the prosecution:

we turn to the evidence to determine whether there are incriminating circumstances linking Crawford to the drugs besides her mere presence at the scene. (1) Crawford's proximity to the drugs. The coin purse was found close to where she was standing, but Crawford denied it was hers and (2) the drugs in the coin purse were not in plain view. (3) Proximity of Crawford's possessions to the drugs. The officers searched the large purse on the table and determined that it was Crawford's, but the court suppressed the search and seizure of that purse. (4) Crawford's previous participation in the sale of a controlled substance. The only evidence of any prior involvement related to her arrest in January 2008, and those charges were dismissed. (5) Use of controlled substances. Crawford had been convicted of misdemeanor possession of paraphernalia which might infer prior use. (6) Suspicious behavior by her. We agree with the trial court that merely locking her cell phone would not constitute suspicious behavior under these facts. (7) Incriminating statements. All incriminating statements made after Crawford's arrest were suppressed and cannot be considered here.

At most, only two of the seven factors might support an inference of possession of the drugs; her proximity to the closed coin purse on the floor and her prior conviction for misdemeanor possession of paraphernalia. We agree with the district court that there was insufficient evidence linking Crawford to the possession of drugs found in the
coin purse.

As a result, the COA affirmed the dismissal.

[Update: the state did not file a PR and the mandate issued on February 10, 2011.]

Arnold-Burger appointed to COA

2011-01-09T09:40:00.001-06:00

Here is a press release (no longer available on line) announcing Governor Parkinson's appointment of Overland Park Municipal Judge Karen Arnold-Burger to the Kansas Court of Appeals, filling the vacancy created by Chief Judge Rulon's retirement:

Governor Mark Parkinson has appointed Karen Arnold-Burger of Overland Park as Judge of the Kansas Court of Appeals.

“Throughout her career, Karen has demonstrated a respect and passion for the law that will honorably serve the people of Kansas on the Court of Appeals,” said Parkinson. “She will bring with her decades of experience as well as a commitment to justice, and I am honored to appoint her.”

Arnold-Burger began her career as a labor relations attorney at Shell Oil Company before returning to Kansas to become a first assistant city attorney for the City of Overland Park. Arnold-Burger then became an assistant U.S. attorney at the District of Kansas, U.S. Attorney’s Office in Kansas City before serving the City of Overland Park again as a municipal judge, and since 1996, as a presiding judge. Currently, Arnold-Burger is also an adjunct faculty member for the Institute for Faculty Excellence in Judicial Education and the National Judicial College, as well as conducts courses and trainings across the country on behalf of the American Bar Association.

Arnold-Burger attended the University of Kansas where she received her bachelors’ in personnel administration, political science and psychology, as well as her juris doctorate. She has been decorated with many awards over her career, including the M. Barbara Award for Outstanding Contributions to Judicial Education in Kansas. Arnold-Burger also serves on a number of organizations, such as the Kansas Women Attorneys Association, the Johnson County Criminal Justice Advisory Council, and is the Kansas co-chair of the American Bar Association Membership Committee.

There is one more vacancy on the COA (created by Nancy Moritz' elevation to the KSC). The Nominating Commission is currently taking applications and will interview in early February. Here is a press release noting that, for the first time, Nominating Commission interviews will be open to the public. The Nominating Commission will forward names to Governor Brownback who will make his first appointment to the appellate courts this spring.

Parental discipline a common law defense in Kansas

2010-12-30T13:48:00.010-06:00

David Magariel won in State v. Wade, No. 102,433 (December 30, 2010), reversing a Johnson County conviction for misdemeanor battery. The court held that parental discipline is a common law affirmative defense in Kansas. The court reversed the defendant's conviction because the district court's failure to instruct the jury on this affirmative defense denied the defendant due process of the law.

The COA reversed Wade's conviction even though the affirmative defense instruction offered by Wade's trial counsel was legally incorrect. The court held that the district court had a duty to correctly instruct the jury on the defendant's theory of defense. The court then explained that the affirmative defense of parental discipline is based on an objective standard:

It is a defense to the charge of battery if a parent's use of physical force upon a child was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline.

Overall, a very good opinion. It is nice to see the court recognize that there are more affirmative defenses than those set forth by the legislature.

Another downward departure upheld

2010-12-21T10:05:00.005-06:00

Janine Cox won in State v. Craver, No. 103,048 (Kan. App. Dec. 10, 2010)(unpublished), affirming Judge Chamber's imposition of a downward dispositional departure in three drug cases. The COA seemed somewhat unimpressed with the state's argument on appeal:

On appeal, the State only challenges the district court's first reason for the dispositional departure, i.e. that Craver was not the ringleader and did not participate in the planning of the drug manufacture. The "argument and authority" section of the State's brief is three pages in length. The thrust of the State's argument is that the district court erred by granting Craver a departure on the ground that she played a minor role in the crimes for which she was convicted. Although the State's brief contains a passing reference to Craver being a long-time drug addict, the brief contains no argument that Craver's drug problem is not a substantial and compelling reason for departure. An issue not briefed by the appellant is deemed waived and abandoned.

. . . .

Generally, when the district court offers two independent bases for its judgment, the appellant's failure to address an alternative basis for the district court's decision is a sufficient reason to deny an appeal. Because the State does not challenge the district court's alternative basis for granting Craver a dispositional departure, i.e. that Craver has a severe drug problem, this is sufficient reason to deny the State's appeal.

The COA went on, though, to hold that Judge Chambers' uniquely tailored sentence for Ms. Craver was supported by the record and was "consistent with the principles underlying the [Kansas Sentencing Guidelines Act.]"

[Update: the state did not file a PR and the mandate issued on January 13, 2011.]

Acquittal in Reno County murder case

2010-12-18T14:37:00.003-06:00

Here is a Hutch News article reporting that Alice Osburn won an acquittal on first-degree murder charges in State v. Delacruz. The article reports that the jury convicted Mr. Delacruz of an unrelated agg robbery.

Huff named judge in Douglas County

2010-12-17T09:13:00.005-06:00

Here is an article from the LJWorld stating that Barbara Kay Huff will be the newest judge in Douglas County. Kay has been a criminal defense lawyer for a number of years, including stops at the Johnson County PD's Office, the Appellate Defender Office, and as a Clinical Professor at KU Law. According to the article, Kay has been in private practice in Lawrence since 1991. She will replace Judge Jean Shepherd, who is retiring in January.

I have gotten to know Kay over the last year, as her office is three doors down from mine. I can whole-heartedly say that I expect her to be an excellent judge. She is wicked smart, and she is very dedicated to the law. Congratulations, Kay.

New Hampshire has a state constitution

2010-12-14T15:32:00.003-06:00

The New Hampshire Supreme Court held in State v. Boutin, No. 2008-813 (N.H. 11/24/2010), that its state constitution puts specific restrictions on officers conducting community caretaking stops:

The defendant argues that the seizure violated his rights under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the Federal Constitution. We consider his arguments first under the State Constitution, using federal cases only to aid in our analysis. See State v. Sawyer, 147 N.H. 191, 193 (2001). Part I, Article 19 of the New Hampshire Constitution provides that every citizen has “a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”

. . . .

In this case, the officer testified that he approached Boutin’s vehicle, “[j]ust to see if everything – if anything was wrong, make sure everything was okay.” He testified that he could not tell if there was an accident, if the vehicle was abandoned or if any occupants may have needed assistance or had health concerns. He also observed that Boutin’s vehicle was pulled off to the side of the road, but facing the wrong way. As in Boyle, while the officer may have had generalized concerns about the vehicle and its potential occupants, he did not describe any specific and articulable facts that justified the intrusion of Boutin’s protected interests. Boutin’s car was parked legally in a pull-off area and the officer did not observe any obvious signs of an accident, that the car was disabled, or that the passengers were in any type of distress. In short, the officer’s concerns amounted to little more than a hunch. While the officer testified that he was concerned in part because it was dark and snow covered the ground, “[w]inters are traditionally long in [New Hampshire], and we cannot adhere to a theory that essentially renders [Part I, Article 19] protections seasonal.”
Because we conclude that Boutin prevails under the State Constitution, we need not reach the federal issue.

This seems to me to be the right method of analysis. First, consider the claim independently under the state constitution. If necessary, consider the claim under the federal constitution. It's the only way to really show any fealty to the state constitution.

January 2011 KSC docket

2010-12-09T09:54:00.005-06:00

Here are the criminal cases on the KSC docket for January 24-28, 2011. 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.

January 24--Monday--a.m.

State v. William Bennington, No. 98,656 (Sedgwick)
Direct appeal (petition for review); Rape
Rachel L. Pickering

Improper admission of hearsay statements
Prosecutorial misconduct

State v. Eric Huerta, No. 101,438 (Sedgwick)
Sentencing appeal (petition for review)
Richard Ney
[Dismissal of appeal affirmed; Beier; March 18, 2011]

Introduction of false information at sentencing
Improper imposition of harsher sentence than more culpable co-defendant
Improper comment on right to silence at sentencing

State v. Elgin Robinson, No. 101,657 (Sedgwick)
Direct appeal; Capital murder (life sentence imposed)
Reid T. Nelson

Improper search of computer (defective warrant)
Failure to suppress coerced statements
Improper admission of hearsay statements
Gruesome photographs
Failure to change judge
Improper presumption of intent instruction

State v. Theodore Burnett, No. 100,854 (Sedgwick)
Direct appeal; Capital murder (life sentence imposed)
Sarah Ellen Johnson

Improper jury verdict forms
Prosecutorial misconduct
Gruesome photographs
Improper deadlocked jury instruction (Salts)

January 25--Tuesday--a.m.

State v. Randy Chavez, No. 103,168 (Sedgwick)
Sentencing appeal (Jessica's Law)
Rachel L. Pickering
[Aff'd/Vac'd; Rosen; July 15, 2011]

Improper imposition of hard-25
Improper imposition of lifetime electronic monitoring
Failure to grant downward departure

State v. Will Wimbley, No. 101,595 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Will Wimbley, pro se (brief); Roger L. Falk (argue)

Ineffective assistance of trial counsel

State v. Rashawn Anderson, No. 99,123 (Douglas)
Direct appeal (petition for review); Second-degree murder
Carl Folsom III (brief), Shawn E. Minihan (argue)

Proseutorial misconduct
Improper eyewitness identification instruction
No waiver of right to testify on record

January 26--Wednesday--a.m.

State v. Derrick Freeman, No. 100,792 (Leavenworth)
Motion to withdraw plea (petition for review)
Michael G. Highland
[Vac'd/Rmd; Nuss; April 1, 2011]

Improper denial of motion to withdraw plea

State v. Thomas Kelley, No. 100,913 (Shawnee)
Motion to withdraw plea
Patrick H. Dunn
[Affirmed; Johnson; March 25, 2011]

Conflict of trial counsel on motion to withdraw plea
Improper denial of motion to withdraw plea

State v. Clifford O'Rear, No. 99,487 (Wyandotte)
Direct appeal (petition for review); Agg battery
Lydia Krebs

Insufficient evidence of recklessness
Prosecutorial misconduct
Juror misconduct

January 27--Thursday--a.m. (Old Kansas Supreme Courtroom)

State v. Kevin Hernandez, No. 101,837 (Riley)
Direct appeal; First-degree murder
Matthew J. Edge
[Affirmed; Rosen; July 29, 2011]

Prosecutorial misconduct
Failure to give voluntary intoxication instruction
Improper sentencing (identical offense doctrine)

January 28--Friday--a.m.

State v. Jerry Sellers, No. 101,208 (Harvey)
Direct appeal; Agg indecent liberties (Jessica's Law)
Michelle Davis
[Aff'd/Vac'd; Beier; April 22, 2011]

Failure to order evaluation of complaining witness
Multiplicity
Lifetime postrelease is cruel and unusual punishment

State v. Eric Neal, No. 100,366 (Sedgwick)
Motion to correct illegal sentence (petition for review)
Michael P. Whalen

Improper finding that claim re: uncounsel misdemeanors is precluded

Craig Fischer v. State, No. 100,248 (Hamilton)
K.S.A. 60-1507 appeal (petition for review)
Michelle Davis

Denial of right to be present at evidentiary hearing

Suppression order

2010-12-06T13:31:00.003-06:00

Sal Intagliata won a suppression order in State v. Holton, a Sedgwick County murder prosecution. According to this Wichita Eagle article, Judge Kaufman held that officers illegally entered a residence without a warrant or consent. Judge Kaufman also suppressed several statements taken from Holton later.

Local blawg in ABA Journal top 100

2010-12-01T10:16:00.003-06:00

Glad to see Ron Sylvester and his blawg What the Judge Ate for Breakfast was included in this year's ABA Journal top 100 blawgs list. I have always thought Ron's coverage of the crime and courts beat was pretty fair and balanced and a lot of the Common Law video series have helped persons outside the court system see a little of what actually goes on behind the scenes, both in the courtroom and in the prison system. Just good journalism.

Vote for What the Judge Ate for Breakfast for best blawg! Just follow the link on the ABA page! (All the cool kids are!)

Cannot "routinely" pat down without articulable safety concern

2010-11-29T10:03:00.005-06:00

Michael Redmon won in State v. White, 103,472 (Kan. App. Nov. 12, 2010), reversing a Wyandotte County drug prosecution based on a Fourth Amendment violation. The COA held that an officer had improperly extended a traffic stop and then considered the validity of a pat down (where an officer found incriminating evidence):

White argues that the officer-safety pat-down, sometimes called a frisk, was an illegal search and all the evidence found as a result of that search should have been suppressed. Specifically, White argues that James had no reasonable suspicion that White was armed and dangerous or that James' safety or the safety of others might have been in jeopardy.

The State maintains again that the encounter was consensual and, therefore, a Terry analysis is unnecessary. As discussed above, however, the State failed to prove the encounter became voluntary. The State further argues that "the officers, by their testimony demonstrated that they were acting as reasonably prudent men in the circumstances" when James conducted the pat-down.

To restate the pertinent facts, James arrived on the scene without being dispatched and saw Bell talking to White. White then stepped out of his car and walked toward James, who was standing near the rear bumper of White's car. White appeared to be cooperating fully with the investigation. At that point, James performed the pat-down.
James did not engage in any conversation with White before performing the pat-down, nor did he recognize White from a previous encounter. When asked why he performed the pat-down, James testified, "It's officer safety. That's just what I've done since I started out here. Just make sure nobody has weapons on them when I'm talking to them." James did not provide any further explanation for the pat-down. During cross-examination, James acknowledged that he "routinely" performs a pat-down in every traffic stop where a person is asked to step out of the car.

. . . .

We recognize that law enforcement officers have dangerous jobs, and traffic stops are especially perilous. As a result, officers must be allowed to take reasonable steps to protect their safety and the safety of others. Courts will uphold a pat-down for officer safety as long as the officer articulates any reasonable suspicion that the officer's personal safety requires it. But a law enforcement officer cannot "routinely" perform a pat-down every time the officer personally encounters a citizen and expect the courts to sanction such a blatant constitutional violation.

The COA shows how easy it is for law enforcement to both extend a stop and conduct a pat down under existing law. But the COA properly says if law enforcement doesn't even take those easy and basic steps, it constitutes a "blatant constitutional violation."

[Update: the state did not file a PR and the mandate issued on December 20, 2010.]

Another upward durational departure set aside

2010-11-29T09:51:00.005-06:00

Heather Cessna and Sarah Morrison won in State v. Duncan, No. 99,463 (Kan. Nov. 19, 2010), reversing imposition of an upward durational departure sentence in a Sedgwick County aggravated battery prosecution. Mr. Duncan had pleaded guilty to severity level seven agg battery, including a joint recommendation for an upward durational departure sentence, which the district court imposed. After probation revocation, Mr. Duncan challenged the departure sentence based on failure to validly waive his right to have a jury find aggravating factors beyond a reasonable doubt. The KSC agreed:

In other contexts, we have held that to be constitutionally valid, a waiver of rights in guilty or no contest pleas must be voluntary, knowing, and intelligent acts performed with sufficient knowledge of the relevant circumstances and likely consequences. Recently, this court held that to satisfy the Due Process Clause a waiver must be an intentional abandonment or relinquishment of a known right or privilege. State v. Copes, 290 Kan. 209, 218, 224 P.3d 571 (2010). As such, to waive the right to a jury in an upward durational departure proceeding, the defendant must do more than consent to the sentence. Duncan needed to understand—and the record needs to demonstrate—what specific right or rights he was waiving. An examination of the plea hearing proceedings relied upon by the Court of Appeals, as well as the written plea agreement, are required to determine whether the waiver satisfied these criteria.

At the plea hearing, the district court informed Duncan he was relinquishing his right to a trial on his guilt, his right to raise any defenses to the charge, his right to have the State prove each offense, his right to compel and cross-examine witness testimony, and his right to testify in his own defense. Regarding sentencing, the district court informed him of the potential range of sentences that could be imposed and that the court was not bound by the plea agreement and could impose any legal sentence deemed appropriate. But the district court did not advise Duncan that he had a right to a jury determination of the aggravating sentencing factors.
Similarly, the written plea agreement only informed Duncan of his right to have his guilt or innocence determined by a jury and the requirement that the State prove his guilt beyond a reasonable doubt on each element of the charge. Neither of these provisions informed Duncan he had a right to a jury determination of the aggravating sentencing factors. Indeed, under even the most generous reading of the plea agreement, at best, suggests it is ambiguous as to whether the defendant was waiving both the jury determination of guilt and the jury determination of aggravating factors. But if we were to find such ambiguity, it would not matter. This court interprets plea agreements under the same standard applied to ambiguous statutes, so that any uncertain language is strictly construed in the defendant's favor. Under this standard, the plea agreement's language would not be enough to constitute a waiver as written.

I hope the KSC will apply this same kind of scrutiny to other waiver situations as well.

Iowa Supreme Court invalidates fee-cap for appeals

2010-11-29T09:31:00.003-06:00

Hat tip to Law of Criminal Defense for posting on this Iowa Supreme Court case holding that a fee cap of $1500 per appeal for criminal defense appeals is unconstitutional under a structural ineffective assistance of counsel approach. The opinion does a nice job of relating some of the economic realities of persons who do this kind of work and explaining the impact of these realities:

First, we examine what the fee cap would mean for a full-time attorney providing representation in criminal appeals. Under the NLADA standards, a lawyer who handles appeals should limit his or her workload to twenty-five appeals per year. Standards for the Defense, Standard 13.12. Under this standard, a full-time lawyer working pursuant to the appellate defender‘s rule could receive a gross income of $40,000. From this figure, the attorney must pay for overhead which, according to the Iowa State Bar Association survey offered into evidence in this case, was, for the average Iowa lawyer, in excess of $70,000. Even assuming that a criminal defense lawyer working on appeals would have less overhead than the average Iowa lawyer, it seems clear that it would be very difficult for a lawyer working under the state public defender‘s rule to earn a living.

Second, we look at this case by considering the hourly rate paid to Simmons for what the record establishes were reasonable and necessary services. His hourly rates for the cases amount to $12.56 for Millam‘s appeal and $12.27 for Cromer‘s appeal. Over the long run, payment of such hourly rates to appellate counsel will have a chilling effect on qualified lawyers taking this work and would discourage thorough appellate preparation.
Third, we use our own expertise in considering the impact of a $1500 fee cap for appellate work. No one can dispute that competent appellate representation requires thorough mastery of the underlying facts, communications with the client, research into applicable legal issues, consideration of which issues to present on appeal, and then careful writing and rewriting. A hard-fee cap of $1500 simply cannot provide adequate compensation in many cases, including the two cases at issue here.

The implications of the inadequate compensation framework on the provision of effective assistance of appellate counsel are multiple. First, inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants. Second, the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. Low compensation pits a lawyer‘s economic interest (recall Lincoln‘s metaphor that a lawyer‘s time is his stock in trade) against the interest of the client in effective representation.

Ecomonic times are tough for state governments, but they cannot choose to prosecute without adequately (not just minimally) funding the defense. If state governments want to reduce their indigent defense costs, they have to reduce the rate of prosecution/incarceration (or, as I've said before, at least the rate of prosecution/incarceration of poor people). It's that simple.

Downward departure upheld

2010-11-23T12:14:00.007-06:00

Washburn student intern Jeffrey Dazey and I (and Patrick Dunn, who argued the case), won in State v. Liskey, No. 103,145 (Kan. App. Nov. 19, 2010), affirming Judge Leuenberger's imposition of a downward durational and departure sentencing in a fairly high profile Shawnee County aggravated indecent liberties and criminal sodomy prosecution. Judge Leuenberger had found eleven substantial and compelling reasons for departure in this case. The COA considered two of the eleven --Ms. Liskey's mental impairment and the complaining witness' participation in the conduct--and held that they were supported by substantial competent evidence and were substantial and compelling reasons for departure. Because the COA only needed to find a single factor supported the departure, it did not need to analyze any of the remaining factors.

Here is coverage of the decision in the Topeka Capital-Journal. Here and here is pre-argument and argument coverage of the appellate case in the Topeka Capital-Journal. Here is some WIBW video coverage of the argument expertly presented by "Ryan Hodgkinson" (played by Patrick Dunn).

[Update: the state did not file a PR and the mandate issued on December 23, 2010.]

Petition for Review granted, November 2010

2010-11-22T22:30:00.004-06:00

On November 4, 2010, the KSC granted the defendant's petition for review in the following case:

State v. Hale, Case No. 101,071 (Dec. 31, 2009) (unpublished)

Issue presented: Whether the district court erred by denying the defendant’s motion to correct illegal sentence when the defendant’s criminal history score had been increased based on uncounseled misdemeanor convictions that resulted in incarceration.

Short list for COA

2010-11-18T10:09:00.003-06:00

Here is the press release announcing the nomination of municipal judge Karen Arnold-Burger, district judge Robert Fredrick, and KSC staff attorney Deborah Hughes for the vacancy on the COA to be created when Chief Judge Rulon retires in early January. Governor Parkinson has 60 days to select the new COA judge from this list. Another COA vacancy will be created by COA Judge Caplinger's recent appointment to the KSC, so the Nominating Commission will be at work again in the next few months, with Governor-elect Brownback making that appointment.

The New Miranda warning

2010-11-10T09:15:00.002-06:00

I thought this post on the Marquette University Law School faculty blog by Michael Cicchini nicely summed up recent SCOTUS Fifth and Sixth Amendment jurisprudence pretty well. In conformity with these cases, here is how we should be giving the familiar Miranda warning if we really want to be honest:

I first have to read you these rights before you tell me your side of the story, okay? First, you have the right to remain silent.

Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).

But if you choose to speak so that you can remain silent, you had better not be ambiguous. If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative. Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).

On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you. This is only fair. Florida v. Powell, 130 S. Ct. 1195 2010).

If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense. So, you might want to talk to me now so you don’t look guilty later. Jenkins v. Anderson, 447 U.S. 231 (1980).

But, anything you say to me can be used against you in court. (I’m not sure if this includes the things that you say in order to remain silent.)

You have the right to an attorney.

But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it. Don’t ask me, for example, “Could I get a lawyer?” This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you. However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).

If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line. Then you might be on your own.

And don’t say “I can’t afford a lawyer but is there any way I can get one?” As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.” The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?

Add to this recent jurisprudence cutting back on remedies when the police violate constitutional rights anyway despite all of these police-favorable cases and I wonder if the Bill of Rights matters any more (other than for people with money and people who want to bear arms).

KU Law to examine state constitutional law

2010-11-09T14:53:00.003-06:00

Here is a news release that KU will host a symposium on state constitutional law this Friday November 12, 2010. Apparently there is up to 6.3 hours of free CLE available. Relevant topics include privacy rights, criminal procedure, search and seizure, and dual sovereignty.

Greene named Chief Judge

2010-11-09T11:28:00.002-06:00

Here is a press release announcing that Richard Greene has been named by the KSC to succeed Gary Rulon as Chief Judge of the Kansas Court of Appeals.

New Mexico has a state constitution

2010-11-09T11:06:00.004-06:00

In State v. Rivera, No. 31,656 (N.M. Oct. 19, 2010), the New Mexico Supreme Court recently considered the application of the private-search doctrine under the federal and state consitutuions:

In this case, a private citizen is alleged to have opened a sealed container that contained a toolbox holding several opaque bundles. The private citizen did not open any of the opaque bundles. When a law enforcement officer who was made aware of the private search obtained possession of the resealed container, he accompanied a second private citizen who re-opened the sealed container. The officer then cut open an opaque bundle to confirm his suspicion that it contained marijuana. The question is whether the officer violated either the Fourth Amendment of the United States
Constitution or Article II, Section 10 of the New Mexico Constitution when he cut open the opaque bundles without a search warrant.

We have consistently interpreted the search and seizure provision of the New Mexico Constitution, however, as imposing a greater requirement for a warrant than its federal counterpart. Accordingly, under the New Mexico Constitution an officer must obtain a valid warrant from a neutral and detached judge to expand the private search absent an exception to the warrant requirement. N.M. Const. art. II § 10. Our approach encourages private citizens to assist police officers in the investigation of crimes, while faithfully safeguarding existing privacy interests as required by our
constitution.

Because the officer in this case opened opaque bundles without a valid search warrant or an exception to the warrant requirement, the district court correctly suppressed the evidence.

The New Mexico Constitution, Article 2, Section 10 reads:

The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.

The Kansas Constitution, Bill of Rights, Section 15 reads:

The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.

December 2010 KSC docket

2010-11-06T09:13:00.003-05:00

Here are the criminal cases on the KSC docket for December 6, 2010. 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.

December 6--Monday--a.m.

State v. Chester Roberts, No. 100,233 (Reno)
State appeal (petition for review)
Randall L. Hodgkinson

Effect of pretrial dismissal on merits

Melvin Holmes v. State, No. 100,666 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
[Reversed; Nuss; June 10, 2011]

Ineffective assistance of appelllate counsel

December 7--Tuesday--a.m.

State v. Robert Johnson, No. 98,812 (Wyandotte)
Direct appeal (petition for review); Possession
Ryan J. Eddinger

Fourth Amendment violation (improper stop)

December 8--Wednesday--a.m.

State v. Michael Tully, No. 92,764 (Johnson)
Direct appeal (petition for review); Rape
Bob Thomas (brief); Rebecca Kurz (argue)

Improper cross-examination of right to remain silent
Improper jury instruction on rape (re: amount of force)
Improper expert testimony re: lack of evidence

State v. Brian Gilbert, No. 100,150 (Shawnee)
Direct appeal (petition for review); Possession
Nancy Ogle
[Dismissed; July 15, 2011]

Fourth Amendment violation (standing and good faith exception)

State v. James Simmons, No. 98,770 (Crawford)
Direct appeal (petition for review); Rape
Shawn E. Minihan
[Reversed; Nuss; July 8, 2011]

Prosecutorial misconduct

December 9--Thursday--a.m.

State v. Christopher Hall, No. 102,203 (Shawnee)
Direct appeal; First-degree murder
Nancy Ogle

Competency to enter guilty plea
Failure to inform of maximum penalty

December 10--Friday--a.m.

State v. John Horton, No. 101,054 (Johnson)
Direct appeal; First-degree murder
Lydia Krebs
[Appeal stayed/remanded; Rosen; July 15, 2011]

Improper coercive jury instruction (Salts)
Improper refusal to reopen defense case for new evidence
Improper admission of animated reconstrution video
Improper exclusion of defense dog search evidence

State v. Jamil Fulton, No. 101,336 (Shawnee)
Direct appeal; First-degree murder
Jonathan B. Phelps

Insufficient evidence
Failure to grant new trial (newly discovered evidence)
Failure to sever co-defendants

State v. Patrick Naputi, No. 101,354 (Sedgwick)
Direct appeal; Agg indecent liberties
Michelle Davis

Prosecutorial misconduct
Denial of defense request re: jury nullification
Improper order of lifetime electronic monitoring
Lifetime postrelease is cruel and unusual

It's Justice Moritz

2010-11-01T13:24:00.005-05:00

Here is the Governor's press release announcing the appointment of Judge Nancy Moritz to the Kansas Supreme Court to fill the seat of Chief Justice Davis, who passed away this last summer.

Here is coverage in the Topeka Capital-Journal. Here is some nice coverage in the Salina Journal, with interviews with high school teachers.

A Richardson win

2010-10-29T10:28:00.000-05:00

Randall Hodgkinson won in State v. Gordon, No. 102,386 (Kan. App. Oct. 22, 2010), obtaining a new trial in a Sedgwick County felony fleeing and eluding prosecution. The case was largely controlled by State v. Richardson (blogged about here), which made it clear that when a crime relies on a predicate felony (like felony fleeing and eluding relies on underlying "moving violations"), the district court must instruct the jurors on the elements of the underlying offenses and specify the alleged violations. The COA rejected the state's claim that Richardson could be distinguished:

The State's arguments ignore the essential holding of Richardson: regardless of the sufficiency or specificity of the evidence presented at trial, our appellate courts will not step into the shoes of the jury and convict a defendant of five moving violations of our choice. Here, like in Richardson, Instruction No. 7 did not specify which moving violations Gordon violated.

Similarly, the COA declined the state's invitation to apply harmless error analysis to this situation.

[Update: the state did not file a PR and the mandate issued on November 29, 2010.]

Kansas Defender applies for COA

2010-10-13T22:32:00.005-05:00

Here is a Topeka Capital-Journal article stating that 17 Kansas lawyers have applied for the Court of Appeals position that will be created by the Jan. 10 retirement of Chief Judge Gary W. Rulon. As the article states, Randall Hodgkinson (of this blog) is one of the attorneys applying for the position.

The Supreme Court Nominating Commission will meet Nov. 11-12 to interview the candidates and narrow the field to three. Anyone with input on the candidates should contact the commission as soon as possible. Comments can be sent to Anne E. Burke, c/o Carol G. Green, Clerk of the Appellate Courts, 301 SW 10th Avenue, Topeka, Kansas, 66612.

[Update: here is the short list (not including Randall).

Petitions for Review granted September, 2010

2010-10-13T12:08:00.017-05:00

On September 14, 2010, the KSC granted several defendants' petitions for review:

State v. Tully, No. 92,764 (April 13, 2007) (unpublished)

Issues presented:

1. Prosecutorial misconduct - prosecutor's improper comment on defendant's post-arrest silence

2. Whether jury instruction on force necessary to prove rape count invaded the province of the jury

3. Whether ER doctor should have been allowed to give expert testimony that the lack of physical injury did not mean thata rape did not occur.

4. Cumulative error

State v. Rashawn Anderson, No. 99,123 (March 20, 2009) (unpublished)

Issues presented:

Prosecutorial misconduct in closing argument
Whether the eyewitness identification instruction (PIK Crim. 3d 52.20) should include the factor of the witness’ degree of certainty
Whether a defendant must waive his constitutional right to testify on the record
Cumulative error

State v. Longstaff, No. 100,112 (March 26, 2010) (unpublished)

Issues presented:

Improper admission of prior bad acts evidence under K.S.A. 60-455
Failure to redact references to defendant’s credibility
Whether defendant’s criminal history must be proved to a jury (Ivory issue)

State v. Knight, No. 100,167 (November 6, 2009)

Issues presented:

Suppression of car stop based on State’s failure to prove an improper lane change
Whether defendant’s conviction for carrying a concealed weapon violated his constitutional rights to bear arms

This case was remanded back to the Court of Appeals for consideration of the U.S. Supreme Court’s recent decision in McDonald v. Chicago, 561 U.S. __, 130 S.Ct. 3020 (2010) (Second Amendment right to keep and bear arms is fully applicable to the states by virtue of the Fourteenth Amendment to the U.S. Constitution).

State v. Angela Anderson, No. 100,173 (October 2, 2009) (unpublished)

Issues presented:

Motion to suppress based on unreliability of confidential information in search warrant affidavit
Improper admission of prior drug convictions under K.S.A. 60-455

State v. Murphy, No. 100,178 (November 13, 2009)

Issue presented:

Motion to suppress should have been granted because the consent to search was extracted during an unlawful detention,not a voluntary encounter.

State v. Nambo, No. 100,464 (September 25, 2009)

Issue presented:

Whether an unarmed accomplice is required to register as a violent offender under K.S.A. 22-4902(a)(7) based on thedistrict court’s finding that “a deadly weapon was used in the commission of such person felony.”

State v. Coman, No. 100,494 (August 28, 2009)

Issues presented:

1. Whether defendant is required to register as a sex offender under K.S.A. 22-4902(c)(14) based on his conviction of criminal sodomy under K.S.A. 21-3505(a)(1).

2. Whether K.S.A. 21-3505(a)(1) is unconstitutional for criminalizing sex between a human and an animal.

State v. Waddell, No. 100,517 (November 13, 2009) (unpublished)

Issue presented:

Whether the district court erred in admitting the video of a complaining witness’ statement into evidence under K.S.A. 22-3433 when the prosecution failed to provide a transcript of the video to the defense.

State v. Tapia, No. 100,596 (August 28, 2009)

Issues presented:

Defective Complaint - failure to alleged specific overt act for conspiracy charge
Failure to give the cautionary accomplice instruction from PIK Crim. 3d 52.18

State v. Hamilton, No. 100,730 (October 16, 2009) (unpublished)

-Review was granted, and the case was remanded to the Court of Appeals for reconsideration in light of State v. Copes, 290 Kan. 209, 224 P.3d 571 (2010).

State v. Hopkins, No. 100,851 (September 4, 2009) (unpublished)

Issue presented:

Whether K.S.A. 21-4614a requires jail credit to be awarded for time spent in an inpatient drug treatment facility while on probation when the defendant is also in the drug treatment facility for a “mandatory drug treatment” case.

State v. Brittingham, No. 100,888 (October 30, 2009)

Issue presented:

Whether employees of the public housing authority illegally searched defendant’s apartment.

State v. Snellings, No. 101,378 (May 21, 2010) (unpublished)

Issue presented:

Whether possession of ephedrine or pseudoephedrine with the intent to manufacture a controlled substance (K.S.A. 65-7006) is an identical offense to possession of drug paraphernalia with the intent to manufacture a controlled substance in K.S.A. 65-4152(a)(3).

State v. Adams, No. 101,392 (June 4, 2010)

Issues presented:

1. Motion to suppress search of defendant’s home based on alleged misrepresentations in the search warrant affidavit.

2. Whether it was clear error to instruct the jury, using PIK Crim. 3d 67.13-D, that evidence of a defendant's crime of use of drugs could be used to prove the contemporaneous crime of the manufacture of drugs.

3. Whether possession of lithium metal with the intent to manufacture a controlled substance (K.S.A. 65-7006[a]) is an identical offense to possession of drug paraphernalia with the intent to manufacture a controlled substance in K.S.A. 65-4152(a)(3).

4. Whether defendant’s criminal history must be proved to a jury (Ivory issue).

State v. Coleman, No. 101,621 (May 14, 2010) (unpublished)

Issue presented:

Whether police officer illegally extended the duration of a traffic stop without reasonable suspicion of criminal activity.

State v. Sanchez-Loredo, No. 101,912 (November 25, 2009)

(State’s appeal)

Issue presented:

Whether exigent circumstances existed in traffic stop, so as to alleviate the warrant requirement for the search of defendant’s vehicle.

Kansas cases at SCOTUS

2010-10-02T19:56:00.002-05:00

Here is a Topeka Captial-Journal article reporting on Kansas cases through history that have been decided at the SCOTUS. It is interesting to look at the cases, both thoses listed and some that are not, that have come from Kansas. I teach my students that every big criminal procedure case was just some regular case at some time. Maybe from Kansas.

Statute means what it says

2010-09-29T10:42:00.003-05:00

Janine Cox won in State v. Urban, No. 98,956 (Kan. Sept. 24, 2010), affirming Judge Bornholdt's dismissal of a Johnson County aggravated escape from custody prosecution. Ms. Urban was on bond and as a condition of bond, had to reside at the Johnson County Residential Center. According to the state, she left the Center without permission.

The state charged Ms. Urban with aggravated escape from custody. Judge Bornholdt relied on K.S.A. 21-3809(b)(1), which states that "'Custody' does not include . . . constraint incidental to release on bail." The COA had held that the statute should not be construed to exclude the circumstances in the case from the definition of "custody." The KSC disagreed:

We depart from the panel on its first ground because it requires us to exceed our role when faced with a statute whose language is clear and unambiguous. As we have often stated, it is not the place of a court to look beyond such language for evidence of legislative intent. When a statute is plain, the court should not speculate as to the legislative intent behind it and should not read into the statute something not readily found in it. In this case, there was no need here to go beyond statutory interpretation to statutory construction, employing canons, or searching for clues in legislative history or other background considerations. The legislature's intent in choosing the words it used in the second exception in the second sentence of the statute is manifest. "Constraint" is a broad term; it may be more intrusive than detention or less. Bail has a specific meaning, but it includes a PR bond such as that posted by Urban. The "release" in the phrase "release on bail" is release from jail; required residence in a community corrections facility may not be total freedom, but it is still not jail.

We also disagree with the panel's second ground, the gloss it gives the phrase "incidental to." Although it is true that "incidental to" has developed a modern usage subtly differentiated from "incident to," both phrases imply that the preceding concept is subordinate in some way to the succeeding concept. The legislature's employment of "incidental" rather than "incident" does not necessarily trivialize "constraint" in a cosmic sense. It does not make "constraint" irrelevant, as "spectacle" does to "shopping" in Garner's exemplary sentence: "Inside a Niketown or REI store in Seattle, shopping seems incidental to the spectacle . . . ." Rather, it precisely conveys, just as "incident to" conveys, the relationship between constraint" and "release on bail." The relationship is dependence; the constraint arises out of the bail context.

Third, we are unpersuaded that there is anything unreasonable about an interpretation of the statutory language that makes every constraint incidental to release on bail ineligible for the label of "custody" under K.S.A. 21-3809(b)(1). This was the legislature's policy choice to make, and it made it. It is not so farfetched that we must recoil or darn its socks. The exception to custody for "constraint incidental to release on bail," in fact, is consistent with the overall legislative design that makes walking away from a community corrections facility while on bond a separate offense. If the legislature believes it has been misunderstood, we are confident that an appropriate amendment of the statutory language will follow publication of this
opinion.

This decision is consistent with the KSC's recent trend to pretty strictly construe statutes according to their terms.

Three judges nominated for Kansas Supreme Court

2010-09-29T08:57:00.006-05:00

Here is the press release announcing that COA judges Nancy Caplinger and Tom Malone and district judge Merlin Wheeler (from Emporia) were selected by the Supreme Court Nominating Commission and forwarded to the governor.

Here is coverage in the Wichita Eagle. And here is coverage in the Emporia Gazette. Here is coverage in the Topeka Captial-Journal.

ADO's silver anniversary

2010-09-22T12:15:00.003-05:00

From Joyce Black, ADO Administrative Specialist:

Once upon a time (August, 1985) there was a little office born from need and necessity. The office started out with two clerical staff and five attorneys. There were few computers, and lots of “yellow tablets” full of briefs and motions (yes – the clerical staff typed briefs from handwritten pages and a few from dictaphones).

As the office grew, more attorneys and staff were added to its ranks. The little office never lacked in great dedication by its constitute members; nor did it lack in clients. Some members left in anticipation of brighter futures (and some came back to the fold); some lasted all of one day or a couple months before they found this was not their “cup of tea.” And some have stayed for years (and years and years!). All of these members added to the character of the office.

Many processes have been added, deleted and changed: better and more efficient computers (and word processing pains), the development of a data base, file review had its day in the sun, a “sentencing unit” worked through hundreds of cases, contract attorneys helped ease the load, the addition of legal assistants, the break-off of two capital appeals offices, and docketing review to name a few. But one process has essentially remained the same – opening cases.
This little office has just reached a double milestone – don’t ask me for other numerical milestones since the data base does not contain all the office’s successes and failures during its existence. The Appellate Defender Office has just opened 25,000 cases and is 25 years old!

Joyce has been with the ADO since the beginning and is certainly one of the moving forces behind its success. Happy Anniversary, ADO!

The lonely Kansas Constitution

2010-09-22T08:51:00.004-05:00

I was impressed and glad to see this month's copy of the Journal of the Kansas Association for Justice (September 2010) included an article by Daniel E. Monnat and Paige A. Nichols titled "The Loneliness of the Kansas Constitution." Here is an excerpt from the introduction:

Today the original handwritten, eight page document [the Kansas Constitution] lies safely in the archives of the Kansas State Historical Society. A single rotating page is displayed under glass in the Kansas Museum of History. And what has become of this document in the Kansas courts? With few exceptions, it appears to have been relegated to the archives there, as well.

Over the past half-century, Kansas' state constitution has come to play second fiddle to the federal constitution in our courts. The rights that many free-staters died facedown in the mud to secure are rarely treated as sovereigh rights independent of the federal constitution. Time and again the Kansas Supreme Court has acknowledged its authority "to intepret our Kansas Constitution in a manner different than the United States Constitution has been constured," and yet the Court has "not traditionally done so."

The article lays out the history and policy behind state constitutionalism and begins to teach how to raise a state constitutional claim in district court. So get a copy and read it (here is a link to the article on Dan's website).

The KSC is right and wrong. It not only has the authority to independently interpret the state constitution. It has the duty to do so.

Eyewitness ID instruction under attack

2010-09-20T12:53:00.005-05:00

Here is a nice article from the Wichita Eagle highlighting the recent oral argument in State v. Mitchell, No. 99,163. In Mitchell, the KSC is considering whether a jury should be instructed to give special consideration to witness certainty in determining whether an eyewitness' testimony is accurate. The case was argued by Ryan Eddinger of the ADO.

Ryan argued that the scientific research says that an eye-witness' certainty is not correlated to the accuracy of their identification. He argued that the eyewitness identification instruction, PIK Crim.3d 52.20, is based on 30-year-old case law and that the witness' "degree of certainty" should be removed as a factor from the instruction. The KSC is clearly interested in this issue, as they granted Ryan's petition for review, and they recently granted a petition for review in a case of mine on the same issue.

In all cases that involve eye-witness testimony, an objection to PIK Crim.3d 52.20 should be made (you might also consider asking for expert testimony on the pitfalls of eye-witness testimony or moving to suppress in-court identifications if the out-of-court procedure was suggestive). The objection to PIK Crim.3d 52.20 is especially important if the witness testifies at trial that they are very certain of their identification or if the witness has become more certain of their identification as the case has progressed. Another science-based instructional issue is to request an instruction that cross-racial identifications are less reliable, blogged about here.

As other cases have shown, objecting to pattern instructions can make the difference between winning and losing a case on appeal. Examples of this with the recent Salts case were blogged about here, here, here, and here.

October 2010 KSC docket

2010-09-16T13:59:00.006-05:00

Here are the criminal cases on the KSC docket for October 25-29, 2010. 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.

October 25--Monday--a.m.

State v. Phouthavy Chanthaseng, No. 101,346 (Sedgwick)
Direct appeal; Agg Indecent Liberties (Jessica's Law)
Lydia Krebs

Insufficient evidence of age of defendant
Improper exclusion of defense testimony
Prosecutorial misconduct

State v. Andre Bailey, No. 101,785 (Sedgwick)
Direct appeal; Felony murder
Michael P. Whalen
[Affirmed; Rosen; July 15, 2011]

Improper adult certification
Improper instructions re felony murder and underlying felonies
District court improperly forced witnesses to testify

State v. David Holman, No. 101,204 (Sedgwick)
Direct appeal; Agg indecent liberties (Jessica's Law)
Randall L. Hodgkinson

Improper bad acts evidence
Improper exclusion of impeachment evidence
Improper prevention of cross-examination of complaining witness
Improper amendment of complaint
Insufficient evidence of age of defendant

October 26--Tuesday--a.m.

State v. Taurus Adams, No. 101,432 (Wyandotte)
Direct appeal; First degree murder
Meryl Carver-Allmond
[Affirmed; Luckert; April 15, 2011]

Prosecutorial misconduct
Improper order of lesser-included offense instructions
Improper instructions on intent and premeditation

State v. Charles Denmark-Wagner, No. 102,234 (Pratt)
Sentencing appeal
Heather Cessna

Improper failure to allow withdrawal of plea

October 27--Wednesday--a.m.

State v. Calvin Brown, No. 100,881 (Wyandotte)
Direct appeal; Agg indecent liberties (Jessica's Law)
Matthew J. Edge
[Aff'd/Vac'd; Brazil; Jan. 7, 2011]

Improper admission of prior consistent statements
Failure to instruct on voluntary intoxication
Improper deadlocked jury instruction before deliberations
Failure to instruct jury on age of defendant

State v. John Meili, No. 101,810 (Saline)
Sentencing appeal
Carl Folsom, III
[Remanded (unpublished); Rosen; Dec. 10, 2010]

Disproportionality of life sentence
Failure to grant downward departure

State v. Terrance Kelly, No. 100,006 (Johnson)
Plea withdrawal appeal
Meryl Carver-Allmond
[Remanded; Biles; Dec. 10, 2010]

Failure to allow withdrawal of plea

October 28--Thursday--a.m.

State v. Rolland Berreth, No. 99,937 (Butler)
Sentencing appeal (petition for review)
Michael P. Whalen

Jurisdiction to resentence after Court of Appeals mandate

October 29--Friday--a.m.

State v. James Malstrom, No. 101,604 (Reno)
Sentencing appeal
Carl Folsom, III (brief); Merly Carver-Allmond (argue)
[Vac'd/Rmd; Nuss; March 25, 2011]

Improper calculation of severity level in Jessica's Law departure

State v. Anthony Divine, No. 102,907 (Montgomery)
Appeal from registration order
Sara S. Beezley
[Reversed; Johnson; Jan. 28, 2011]

Registriation requirement after expungement

State v. Phillip Cheatham, No. 95,800 (Shawnee)
Direct appeal; Captial murder
John Val Wachtel, Paul Oller

Ineffective assistance of counsel at guilt phase

New article on false confessions

2010-09-15T10:20:00.004-05:00

Here is an article from the April, 2010 Stanford Law Review which highlights the phenomenon of false confessions and specifically shows how most false confessions include surprisingly rich, detailed, and accurate information. The article suggests reform to all facets of the criminal justice system in an effort to control the contamination of confessions by improper interrogation techniques.

Here is a recent NY Times piece that discusses this article as well as the case of Eddie Lowry (blogged about here), a man who falsely confessed to a Riley County rape and was later awarded a $7.5 million settlement for his wrongful incarceration.

Hat tip to Melanie Freeman-Johnson for bringing this article to my attention.

Lawsuit challenges judicial nomination process

2010-09-11T08:02:00.005-05:00

Here is an AP article that describes a lawsuit filed in federal court that seeks an injunction against the Supreme Court Nominating Commission from filling the vacancy on the Kansas Supreme Court. The lawsuit claims that Kansas employs an unconstitutional method for replacing judges, in part because it gives too much power to attorneys.

The current selection process is provided for in the Kansas Constitution, and it was specifically approved by Kansas voters in 1958. While it is very unlikely that a federal court is going to tell Kansas how to select its state judges, this lawsuit could create uncertainty in Kansas courts for some time if an injunction is granted.

[Update: here is a link to Judge Belot's decision denying a preliminary injunction stopping the judicial selection process.]

Article on defendant released after habeas win

2010-09-03T17:51:00.005-05:00

Here is a Wichita Eagle article reporting on the recent release of Nathaniel Swenson after 11 years in prison. We blogged about the case about three years ago here, when Michael Whalen obtained a remand for evidentiary hearing in Mr. Swenson's habeas case. Then this spring, after the district court apparently denied relief, the COA reversed denial of relief and remanded for a new trial (blogged about here). And after additional delay, Judge Burgess discharged Mr. Swenson.

Congrats to Michael Whalen for his perseverance in this case.

Cumulative judicial and prosecutorial misconduct requires new trial in Jessica's Law case

2010-09-03T12:29:00.004-05:00

Carl Folsom won in State v. Kemble, No. 100,824 (Kan. Sept. 3, 2010), obtaining a new trial in a Sedgwick County aggravated indecent liberties prosecution. The KSC reversed due to a combination of judicial miscondcut and prosecutorial misconduct.

The KSC reviewed the transcript in detail to evaluate the judge's interaction with a child witness. The court held that the judge at points was correctly controlling her courtroom, but eventually she egregiously crossed the line and was improperly bolstering a witness:

One can empathize with the frustration a trial judge might experience with a child witness who will not testify consistently with his or her prior statements, especially if the judge might perceive that the prosecutor's soft-spoken demeanor is impeding the search for the truth and precluding the just punishment of a perpetrator of the most despicable conduct in our society. Nevertheless, the judge cannot cross the line between being the impartial governor of the trial and being an advocate for the prosecution. The lines of demarcation separating the duties of each of the players in a criminal trial are sacrosanct, i.e., the prosecutor representing the people; the defense attorney representing the accused; the trial judge representing the interpreter of the law; and the jury representing the finder of facts. If any of those lines are crossed, the system that has held this nation in good stead for two and a quarter centuries has been compromised. Here, the trial judge crossed the line, not only refusing to follow the better practice of addressing the problem with counsel outside the jury's presence, but failing to exercise the appropriate caution in questioning a witness and making comments in front of the jury.

Defense counsel also objected to a statement by the prosecutor during closing argument that "He [Mr. Kimble] never said I was too drunk to remember until today." The KSC held that this was a Doyle violation:

The State attempts to characterize the closing argument statement as only referring to the "defendant's failure to mention his alleged intoxication when confronted by the victim's family in the immediate aftermath of the incident." Obviously, if defendant was asserting a voluntary intoxication defense, he would be saying that he was too drunk to form a specific intent to commit the crime. Yet, the State would expect the defendant to have sufficient cognitive ability to affirmatively assert, almost contemporaneously with the criminal act, that defendant was relying on the defense of voluntary intoxication, i.e., he was too drunk to know what he was doing, but not too drunk to assert his affirmative legal defenses. The argument is, at best, counterintuitive. Moreover, one of the family members was apparently able to discern Kemble's intoxication without the benefit of his declaration that he was intoxicated.

More importantly, the State's argument does not comport with the actual statement used in closing argument. The statement was, "He never said I was too drunk to remember until today." (Emphasis added.) "Today" was the day of trial; not the immediate aftermath of the incident. The State's attempt to rewrite the statement on appeal is unavailing. The prosecutor committed a Doyle violation, which is clearly outside the permissible bounds of fair comment under the first step of our analysis.

The KSC noted that Doyle is a long established rule that every prosecutor should know. It also noted that the violation occurred in the prosecutor's PowerPoint presentation, showing planning and not a spur-of-the-moment error.

In summary, the KSC held that the combination of the errors deprived Mr. Kimble of a fair trial:

Conceivably, reasonable people might differ in their assessment of whether either the judicial misconduct or the prosecutorial misconduct in this case, when viewed in isolation, requires reversal, i.e., whether the respective individual error was harmless. However, when the two errors are viewed together, the cumulative effect clearly denied Kemble his right to a fair trial. As noted above, that denial cannot be cured by declaring the evidence against the defendant to be overwhelming. Accordingly, we reverse Kemble's conviction and remand for a new trial.

Second win for Carl on Jessica's Law cases this summer.

Here is coverage in the Wichita Eagle.

Here is coverage on law.com (registration required).

No property interest in jail booking documents

2010-09-03T12:15:00.006-05:00

Washburn student intern Joshua Mikkelsen and I won in State v. Rodriguez, No. 102,449 (Aug. 20, 2010), vacating a Seward County forgery conviction. The prosecution stemmed from Mr. Rodriguez allegedly signing jail intake documents with a false signature. In Kansas, forgery requires intent to defraud, which in turn requires "an intention to deceive another person, and to induce such other person, in reliance upon such deceiption, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property." The COA agreed that a prior case, State v. Fisher, 24 Kan. App. 2d 103, 942 P.2d 49 (1997), held that although the state has an administrative interest in accurate fingerprint records, it does not constitute a property interest:

In sum, the State failed to establish it had a property interest that was harmed by Rodriguez' act of signing a false name to the booking documents; thus, the State failed to prove an essential element of forgery.

[Update: the state did not file a PR and the mandate issued September 23, 2010.]

Acquittal in Ford County

2010-09-03T10:53:00.002-05:00

Steve Cott got acquittals this week in State v. Fulton, ending a Ford County kidnapping, rape, and aggravated sodomy prosecution.