Frazier not "fixed"

Heather Cessna and I won in State v. Snellings, No. 101,378 (Kan. April 5, 2012), obtaining a reduced sentence on one count of possession of a precursor. Although the KSC rejected a similar argument regarding a manufacture count, the KSC agreed that the current precursor statute, which prohibits possession of several specific items related to manufacture of methamphetamine, is still identical to the statute prohibiting possession of paraphernalia.

In 2002, in State v. Frazier, the COA held that possession of precursors (then a severity level 1 drug offense) was identical to possessing products used to manufacture methamphetamine (a severity level 4 drug offense). This holding was affirmed by the KSC in 2005 in State v. Campbell. In 2006, the Legislature removed "products" from the definition of paraphernalia, presumably in response to Frazier/Campbell (it also reduced the severity level for possession of a precursor from 1 to 2). But the statute continued to include as drug paraphernalia "equipment and materials of any kind." So the question is whether precursors are "equipment and materials of any kind" intended for use to manufacture methamphetamine. The KSC held that under any plain reading the answer is yes:

As Snellings points out, general rules of statutory interpretation require courts to give ordinary words their ordinary meaning. "Material" is defined in part as "the substance or substances out of which a thing is or can be made; [c]omposed of or relating to . . . substances." Webster's II New Collegiate Dictionary 675 (1995). Because ephedrine and pseudoephedrine are items that are precursor chemicals used in the manufacture of methamphetamine, they fit within this definition of "material." This point is illustrated by the legislature's own use of the word "materials," in K.S.A. 21-4717(a)(1)(D), which includes "precursor chemicals" as an example of "materials" that may warrant an aggravated sentence: "The presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, laboratory equipment, lighting, irrigation systems, ventilation, power-generation, scales or packaging material."

I don't think this will effect as many people as Frazier, but it should result in some reduced sentences.

Appeal on question reserved does not effect sentence

Michael P. Whalen won in State v. Berreth, No. 99,937 (April 6, 2012), reversing the previous imposition of a higher sentence after the state filed an appeal. The timeline is this case is convoluted to say the least (it takes up 11 pages of a 42 page opinion). Short story: Mr. Berreth was convicted and sentenced to 254 months in prison, which was affirmed in 1997. In 2004, Mr. Berreth started some post-conviction proceedings attacking one of his convictions as multiplitous--the district court agreed and reduced the sentence to 192 months. The state appealed. On appeal, the COA held that the sentence was improperly reduced and remanded for reimposition of the original sentence. The KSC denied review of that decision. As a result, Mr. Berreth was returned from postrelease supervision to prison.

One big question in the current case was: what type of appeal was that? If it was an appeal from a habeas ruling (under K.S.A. 60-1507), the appellate court would have jurisdiction and could remand the habeas order. If it was an appeal from a question reserved, any appellate decision should not effect the sentence. The KSC ultimately held that the state had pretty specifically said that the appeal was from a question reserved in its notice of appeal and docketing statement and, therefore, held that the COA in the first appeal had improperly recharacterized the appeal as a habeas appeal. The KSC also clarified that, despite some previous published cases in which it had remanded for resentencing on appeals from questions reserved, an appeal on a question reserved cannot effect the defendant:

We reemphasize our rule to keep future courts from straying from it. An appellate court's answer to a question reserved by the State has no effect on the criminal defendant in the underlying case.

So two big points: (1) state is bound by its election of avenue for appeal and (2) an appellate court cannot vacate a sentence in an appeal on a question reserved. It's nice to have both of of those points clarified.

Prior bad act evidence requires new trial

Christina Waugh won in State v. Preston, 98,629 (Kan. March 23, 2012), obtaining a new trial in a Johnson County drug prosecution. The KSC applied its precedent in State v. Boggs (blogged about here) holding that: "admission of prior drug use was not admissible when the defendant denied ever having possessed the drugs." The KSC held that the same situation presented in the instant case:

In summary, this court has adopted a rule that distinguishes between cases in which the defendant acknowledges but attempts to provide an innocent explanation for his or her actions and those in which the defendant disputes the allegations outright. As we stated in Boggs: "[T]he defendant's use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455." Applying that same analysis here, we hold that Preston's prior conviction was not admissible under K.S.A. 60-455 and Boggs because he disputed the drugs were his.

The KSC went on to hold that the "State carries the burden to demonstrate there is no reasonable probability that the error affected the trial's outcome in light of the entire record because it was the beneficiary of this nonconstitutional error." This is a pretty important point in relation to harmless error analysis. The KSC held that the state did not meet this burden and therefore reversed and remanded for a new trial.

District court improperly prohibited theory of defense

Matthew J. Edge won in State v. King, No. 99,478 (Kan. March 9, 2012), obtaining a new trial in a Wyandotte County drug prosecution. The defense proffered evidence from three witnesses that would have revealed prior police harassment. The KSC held that the evidence was relevant and noncumulative and therefore should have been admitted. Further it held that improper exclusion was not harmless beyond a reasonable doubt:

The evidence in this case comes purely from witness testimony. Stanturf and another officer testified that the cocaine came from King's pants pocket. King and Hudnall testified that Stanturf planted the cocaine found in this case. No physical evidence linked the bag of cocaine to King and there was no video of the arrest or subsequent search. Stanturf testified that he had no strong personal feelings against King, other than some frustration from the incident on June 2, 2005, when King fled the scene. King testified that Stanturf harassed him, pulled him over frequently, and had told King of his personal dislike of King. Stanturf testified that he knew of no ongoing vendetta between King and the officers of the south patrol division. But King was not allowed to present evidence of the south patrol division's alleged hostile attitude toward him.

. . . .

The prosecutor's closing argument highlights the fact that King was allowed to present the "what" of his defense―i.e., the drugs had been planted, but he was not allowed to present the "why" of his defense―i.e., the bias of Officer Stanturf and the south patrol division. Although King was allowed to present his defense that the drugs were planted through his own testimony and that of one other witness, the trial court denied King the opportunity to present relevant, admissible, and noncumulative evidence that was integral to his defense. Evidence that Stanturf continued to harass King after the arrest supports King's theory that Stanturf had a grudge against him that caused the officer to plant drugs to frame him for this crime. Evidence that officers in the south patrol division made disparaging comments about King to his family and perjured themselves to obtain a conviction further supports King's theory of defense.

As Judge Leben pointed out in his dissent, it may well be that a jury would give little weight to the proffered testimony, but it is not our job on appeal to determine its believability. The evidence offered was relevant, material, and not subject to any sustainable hearsay objections. . . . The exclusion of this evidence prevented King from presenting a complete defense. There is a reasonable possibility that the exclusion of this evidence contributed to the verdict. Because this evidence was integral to King's defense theory, we are not persuaded beyond a reasonable doubt that the error did not impact the outcome of the trial, so we must reverse his convictions and remand for a new trial.

There is some good language in this case teaching that just because some evidence may open the door to other damaging evidence, it does not make improper exclusion harmless. It is for the defendant and his or her counsel to decide those risks, not an appellate court.

Kastigar suppression affirmed

Julia S. Spainhour and Stephen J. Atherton won in State v. Carapezza and Hughes, No. 101,958/101,959 (Kan. March 9, 2012), affirming Judge Wheeler's suppression order under Kastigar in a Lyon County felony murder prosecution. Carapezza and Hughes had been convicted of felony murder, but those convictions were reversed in 2008 (blogged about here) based on some improper evidence. At the same time, the KSC noted that the district court should conduct a hearing regarding the possible derivative use of some immunized testimony obtained during a state inquisition proceeding.

On remand, Judge Wheeler held the hearing resulting in a detailed order suppressing a substantial part of the state's case (blogged about here). The state appealed that suppression order. The KSC affirmed the district judge's findings:

With respect to the excluded lay witnesses, the district court carefully explained why the State had failed to meet its Kastigar burden for each. On appeal, the State places a favorable spin on the facts to urge us to find that it did not make a derivative use of the immunized statements with respect to those lay witnesses. We must decline the invitation to function as a factfinder. The district court's negative finding that the State failed to carry its burden of proof is entitled to the full measure of the deferential review standard applicable to that question. Moreover, at the Kastigar hearing, the district court made the following finding:

"It is very painfully apparent when you review the evidence in these two cases that there literally was no case available against these two defendants until such time as Ms. Paico signed and provided information following the reaching of her cooperation agreement with the State of Kansas. Reaching this agreement by Ms. Paico was also, obviously, motivated in part by the knowledge that was communicated by Mr. Goodman to her that the defendant Carapezza had implicated Ms. Paico. Ms. Paico's agreement was undoubtedly a result of knowledge of that implication."

That characterization is supported by substantial competent evidence in the record. The investigation can be visualized as an upside-down pyramid, resting on the initial questionable statements of Paico. On top of that was layered the inquisition testimony of Carapezza and Hughes. Those statements led to numerous interviews with other witnesses and the development of other leads. Capping the pyramid is Paico's changed, plea-bargained story and the jailhouse witnesses. The State demonstrated no effort to support the pyramid with any independent foundation that did not rest squarely upon the defendants' immunized statements. To the contrary, the evidence adduced at the Kastigar hearing demonstrates that the State used the immunized testimony from the inquisitions as the launching pad for its case against Carapezza and Hughes.

At first blush, one might view the heavy burden placed on the State at a Kastigar hearing to be an onerous obstacle to prosecuting alleged murderers. But, as the district court pointed out, the prosecutor possesses the sole discretion and authority to choose who to immunize, who to let plea-bargain, and who to prosecute to the fullest. Here, the State used Carapezza and Hughes to gather evidence against Paico and then used Paico to implicate Carapezza and Hughes. Ironically, the State maneuvered itself into a position of agreeing not to pursue a murder prosecution against Paico, who was the only person against whom it had physical evidence, while pursuing a murder prosecution against the first persons to whom it had granted immunity. Having made the decision to grant immunity to Carapezza and Hughes, the State is constitutionally and statutorily required to honor that commitment.

In Carapezza I and Hughes I, this court charged the district court with the daunting task of conducting a Kastigar hearing to assess which, if any, evidence the State could prove was not derived from the defendants' immunized testimony. The court's Herculean effort resulted in a well-reasoned opinion that correctly assessed the evidence in accord with the principles we set forth in our remand opinions. In short, the district court should be affirmed.

This case sort of presents a class on how not to utilize inquisition proceedings. So the case is remanded three and a half years after the original convictions were reversed. Three and a half years is a long time to be sitting in jail without a conviction. Updates when available.

Here is an Emporia Gazette article reporting that the charges against Mr. Hughes and Ms. Carapezza were dismissed without prejudice on May 3, 2012 and they were finally released (after spending nearly seven years in custody after the initial conviction).

No cause to look in cigarette package

Washburn student intern Sean G. Whittmore and I won in State v. Johnson, No. 100,728 (Kan. March 2, 2012), obtaining reversal of a Sedgwick County drug conviction. The main issue was whether officers had a basis for looking in a cigarette package taken out of Ms. Johnson's purse during an investigatory detention. During the investigation, Ms. Johnson reached into her purse to get a cigarette, but the officer refused permission. Nonetheless, Ms. Johnson still reached for her cigarettes, at which time the officer took the cigarette package and looked in it for "officer safety purposes" finding some drugs.

The KSC held that the officer was justified in seizing the cigarette package for officer safety, but not searching it:

Courts in other states also have held that a search of a seized cigarette pack exceeded permissible law enforcement action under Terry.

The result and reasoning of our Court of Appeals and our sister states is sound. Indeed, if Tucker's alternate recitation of the order of events is believed, he placed the unopened cigarette pack on top of Johnson's purse within her reach on the kitchen counter. If he, in fact, did so, no action could more convincingly demonstrate that he perceived no danger to himself or his fellow officers. Once Tucker secured the pack of cigarettes, any nonhysterical threat its contents may have posed was eliminated and no further search was permitted.

We also note that the prosecutor's insistence at oral argument that a ruling in Johnson's favor on this point would expose law enforcement officers to a new and unacceptable risk is misguided. To the extent there is a threat, it is not new; and our legislature evidently deemed it acceptable. K.S.A. 22-2402(2)—again, a Kansas codification of Terry—specifically allows an officer to seize and keep only items "the possession of which may be a crime or evidence of crime . . . until the completion of the questioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person." It does not permit a general search of any seized item not immediately recognizable as an unlawfully possessed weapon or other evidence of a crime. There may be those who believe smoking to be unwise but, so far, those who
indulge in it in private residences are not subject to criminal prosecution. With no authority to search the seized cigarette pack, Tucker was permitted to hold onto it until he finished questioning Johnson. Then he was required to return it to her and let her continue about her business. Without the unlawful search of the cigarette pack and the cascade of events that followed it, there was not a basis for Johnson's arrest.

The state also tried, for the first time in its petition for review and in a supplemental brief, to argue that a person does not have an expectation of privacy in a cigarette package. The KSC held that such an argument had been waived:

The State did not make an issue of the sufficiency or quality of Johnson's expectation of privacy either before the district court or before the Court of Appeals. The prosecutor admitted at oral argument before this court that the issue's sudden appearance in the supplemental brief is directly attributable to Judge Hill's dissent from the panel majority. Judge Hill took the position that an individual has a reduced expectation of privacy in a cigarette pack.

We generally refuse to consider an issue on appeal if it has not been raised in the district court. Specifically, we have rebuffed a defendant's effort to advance new reasons to support suppression for the first time on appeal. What is sauce for the goose is sauce for the gander, and the State's mirror image effort to advance new reasons to avoid suppression must likewise be rejected.

So the case is remanded with directions to suppress the evidence.

If at first you don't succeed...

Stacey Schlimmer won not guilty verdicts on two "Jessica's Law" counts of aggravated indecent liberties with a child in a Johnson County prosecution. She was assisted at trial by Curtis Sample.

You may remember the case from State v. Whitt, 46 Kan. App. 2d 570, 264 P.3d 686 (2011), where the COA granted the State's interlocutory appeal, reversing the district court's suppression of the defendant's confession. Nonetheless, on remand, Schlimmer won the two not guilty verdicts even though the confession was put before the jury.

The exception to the rule

Here is an article stating that Elbridge "Skip" Griffy got a rare victory in a recent bench trial in a Douglas County sexual violent predator prosecution. As the article states, the State had sought to civilly commit Christopher J. Saemisch for treatment pursuant to the Kansas Sexually Violent Predator Act.

Any commitment would likely have been a life sentence, as statistics from the Secretary of SRS show that more persons have died in the program than have been released since its inception in the early 1990's. After a two-day trial (held earlier this month), Judge Michael Malone ruled that the State had failed to prove beyond a reasonable doubt that Saemisch was likely to re-offend.

Avoiding police is not evidence of crime [NOT FINAL]

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

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

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]

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.]