Saturday, October 30, 2021

Cumulative error requires consideration of all errors

Kasper Schirer won in State v. Cameron Taylor, No. 118,792 (Kan. October 8, 2021), obtaining a new trial in a Finney County marijuana possession, battery on a law enforcement officer, and criminal threat prosecution. The COA had ordered a new trial on the possession charge based on a suppression issue, but affirmed the remaining convictions despite finding four additional trial errors, includingviolations of in limine orders, and prosecutorial error in closing argument. The COA had found that the trial errors were individually and cumulatively harmless with regard to the remaining counts. The KSC granted review on whether the errors were harmless under the cumulative error rule and found that the COA had misapplied the cumulative error rule: 

At the outset, it is readily apparent the panel erred in three distinctive ways in its cumulative error analysis. First, it failed to consider the district court's erroneous denial of the marijuana evidence in its analysis. Second, it failed to apply Chapman's constitutional harmless error test, when at least three of the five errors implicated the Fourth and Fourteenth Amendments to the United States Constitution. Third, it failed to question whether the errors' cumulative effect savaged Taylor's credibility although it observed the jury's credibility determination affected the verdict. 

The KSC went on to apply the correct cumulative error test and concluded that a new trial was required on all counts:

With the burden on the State to show harmless constitutional error, we hold the prosecution fails to establish beyond a reasonable doubt that the cumulative effect of all five errors did not affect the trial's outcome. Had the jury believed Taylor's version of the incident—or just found his testimony created a reasonable doubt—the jury would have been legally required to return not guilty verdicts on the battery and threat charges.

As a result, the KSC reversed the counts affirmed by the COA and remanded the entire ase to the district court with directions to give Mr. Taylor a new trial.

Sunday, October 24, 2021

Obstruction cannot occur until predicate offense completed

Caroline M. Zuschek won in State v. Jenkins, No. 122,800 (Kan. App. October 1, 2021) (unpublished), obtaining reversal of a Jackson County obstruction conviction. The state charged Ms. Jenkins with obstructing apprehension or prosecution of a crime for hiding in her boyfriend in her home when sheriff's officers came to arrest him for a probation violation warrant and lying to officers. Specifically, the state charged Ms. Jackson  with "knowingly harboring, concealing or aiding any person who . . . [h]as committed or who has been charged with committing a felony or misdemeanor under the laws of this state.".At a bench trial on stipulated facts, the district court concluded that the evidence did not support the obstruction charge because a probation violation warrant is not the same as having committed or being charged with a crime. But the district court found that, in a separate case, the state had separately charged Ms. Jackson's boyfriend with interference for hiding in Ms. Jackson's house to avoid arrest. The district court held that Ms. Jackson's actions constituted obstruction as it related to that predicate offense.  

The COA noted the differences between the offenses of obstruction and the doctrine of aiding and abetting:

To be guilty of obstruction . . . a defendant must harbor, conceal, or aid a person who has already committed a crime. In other words, the predicate crime of the other person must have been completed at the time the defendant's obstruction occurs. 

. . . .

We need not delve into the historical foundations for the crimes of aiding a felon or obstruction. Basically, they criminalize as a distinct offense helping someone who has already committed a crime to evade capture. By contrast, under the statutory principles of criminal liability in Kansas, if one person aids or assists another person who is in the process of committing a crime, the person rendering the aid or assistance is guilty of that crime. 

. . . .

Duble's interference with the law enforcement officers looking to take him into custody for the probation violation continued throughout the time he hid in Jenkins' house and was ongoing when Jenkins told the officers he was not there. In short, Duble's crime had not been completed at the time Jenkins misled the officers. Jenkins, therefore, could not be guilty of obstruction in violation of K.S.A. 2020 Supp. 21-5913 on the stipulated evidence and the charge as the district court revised it.

As a result, the COA reversed the conviction, vacated the sentence, and entered a judgement of acquittal.

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]

IAC stemming from failure to file timely notice of alibi was shown even without trial attorney's testimony

Jacob Nowak won in Rucker v. State, No. 122,643 (Kan. App. October 1, 2021) (unpublished), obtaining a new trial in a Wyandotte County criminal threat and criminal discharge at an occupied building prosecution. Mr. Rucker filed a motion pursuant to K.S.A. 60-1507 alleging ineffective assistance of counsel for among other reasons, failing to file a timely notice of alibi. After the district court initially denied Mr. Rucker’s motion, the COA remanded for evidentiary hearing on several claims, including failure to file a timely notice of alibi. On remand, the district court found that Mr. Rucker had not shown either deficient performance nor prejudice. 

In particular, the district court had faulted Mr. Rucker for failing to call trial counsel at the evidentiary hearing. The COA acknowledged that it was unusual, but not fatal to the deficient performance claim:

Rucker's decision not to call [trial counsel] is unusual given that the prior panel remanded the matter for an evidentiary hearing on claims of ineffective assistance of counsel.

. . . .

That said, at times it is clear from the record and circumstances that trial counsel's actions were not strategic even without testimony from trial counsel. Because Rucker did not call [trial counsel] as a witness at the evidentiary hearing, the only explanation in the record for why [trial counsel] did not timely file the alibi notice comes from the October 23, 2012, pretrial hearing. There, [trial counsel] admitted that he had the list of the names of Rucker's alibi witnesses before the deadline to file the notice but claimed the information was "incomplete . . . to comply with the statute." [Trial counsel] did not elaborate on the information he needed to file the notice promptly, and the district court did not ask about the matter.

The COA also held that the deficient performance met the prejudice test for ineffective assistance of counsel:

Considering the totality of the evidence in the record, we find the confidence in the outcome of Rucker’s case is sufficiently undermined by the fact that at least four witnesses were not allowed to testify at trial that Rucker was with them at or near the time of the shooting. . . Rucker did not receive a fair trial because his counsel failed to timely file the alibi notice for no apparent reason.

As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]

Saturday, October 23, 2021

Affirmatively misadvising client regarding calculation of criminal history score justifies plea withdrawal

Jennifer C. Roth won in State v. McKinzy, Nos. 121,464 (Kan. App. October 1, 2021) (unpublished), obtaining remand for further proceedings in a Wyandotte district court murder prosecution. The state charged Mr. McKinzy with first-degree murder. The parties entered into an agreement where Mr. McKinzy would plead guilty to second-degree murder and a count of aggravated battery in a separate case. Prior to sentencing, Mr. McKinzy filed a motion to withdraw his plea because his attorney affirmatively misinformed him that he would be criminal history C for the murder conviction and criminal history B for the aggravated battery conviction. In fact, under clear Kansas law, Mr. McKinzy fell into criminal history category B for each (because the aggravated battery conviction counted as criminal history for the murder case). 

The COA had little trouble holding that Mr. McKinzy was not represented by competent counsel, one of the factors to consider to determine whether to allow a person to withdraw a guilty plea:

This record shows that the defense counsel's performance can be fairly characterized as "lackluster" advocacy. This was not simply a case of miscalculating a criminal history score. McKinzy's attorney represented him while pleading to two high level felonies, and the attorney did not know, let alone understand, that multiple convictions on the same day in different cases count against each other for criminal history purposes. And, more importantly, failed to inform McKinzy of this very important sentencing rule before entering pleas of guilty. 

The COA also observed that the district court appeared to confuse the standard for a post-sentencing motion to withdraw plea (requiring constitutionally deficient counsel) and a pre-sentencing motion to withdraw plea (requiring only good cause): 

We have two problems with the district court’s ruling. The first is it ignored the defense attorney’s admission of incompetence. The second problem is that the court used an incorrect test for a presentence motion to withdraw a plea.

The COA reversed the denial of the plea withdrawal motion and remanded for further proceedings. 

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]

Failure to argue voluntary act requirement in statutory rape case was IAC

Richard Ney and David L. Miller won in State v. Dinkel, No. 113,705 (Kan. September 24, 2021), obtaining a new trial in a Saline County statutory rape prosecution. The Kansas Supreme Court had previously considered this case (blogged about here) and held that a voluntary act was an element of a statutory rape prosecution. In the previous decision, the KSC remanded to determine whether Ms. Dinkel's attorney was ineffective for failing to make any argument regarding the actus reus requirement. The district court held that Ms. Dinkel's attorney was not ineffective. A majority of the KSC disagreed:

It is true [defense counsel] presented Dinkel's version of the events to the jury. But nothing in his arguments or the instructions told the jury how it could use these defenses. The jury was instructed to apply the law that the court gave it. That law provided that Dinkel was guilty of rape if sexual intercourse occurred at certain times, Dinkel knowingly engaged in the act, and K.H. was under 14 years old. It instructed the jury that Dinkel acted knowingly if she was aware of the nature of her conduct. The State proved that sexual intercourse occurred at least once during the described time period, that Dinkel was aware of what was happening, and that K.H. was under 14 years old. Even if the jury believed Dinkel's defenses, the instructions offered no avenue for the jury to find she was not guilty. Thus, regardless of how aggressively or completely [defense counsel] presented Dinkel's claims, without any argument or instruction on the State's burden to prove that Dinkel's acts had to be voluntary, her claims were legally irrelevant.

. . . .

[Defense counsel's] assertions did not provide the legal link between Dinkel's claims and possible acquittal that Dinkel asserted. In fact, we question how [defense counsel's] argument did anything but inject confusion into the jury's decision-making. When reading the instructions, the trial judge told the jury that its "verdict must be founded entirely upon the evidence admitted and the law as given in these instructions." As we have noted, nothing in those instructions allowed the jury to find Dinkel not guilty if it believed her version of events. So a statement telling the jury that it did not have to find Dinkel guilty because that "didn't make sense" was bound to muddy up the deliberative waters.

It appears [defense counsel] did not know the voluntary act requirement existed or, if he did, he overlooked it. But this does not excuse his missteps. In State v. Davis, this court held that counsel's performance had been deficient when "he was unaware of the proper legal standard for a defense of mental disease or defect" and, consequently, "did not adequately prepare for trial." 277 Kan. 309, 327, 85 P.3d 1164 (2004). Similarly, here, [defense counsel] neglected the voluntary act requirement and, consequently, forged ahead with a defense that held no legal significance.

The KSC went on to hold that the deficient performance prejudiced Ms. Dinkel's defense:

The failure to give the jury the tools it needed to apply Dinkel's defense against the State's case made it impossible to achieve the fundamental fairness we expect in a criminal trial. The instructions told the jury the State had to prove Dinkel knowingly engaged—meaning she was aware of her conduct—in sexual intercourse with K.H. between November and March while K.H. was less than 14 years old. Dinkel admitted to at least one instance of sexual intercourse with K.H. during this time. She also testified that K.H. forcibly raped her during their first sexual encounter while she just "lied there" and presented evidence to support this claim. But no instruction told the jury that Dinkel was not guilty if she was forcibly raped. Because we generally presume juries follow instructions, State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011), the absence of an instruction permitting the jury to apply Dinkel's defense was prejudicial. Without it, Dinkel's testimony secured her conviction for at least one of the charges. 

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

[Update: according to this Hays Post article, on remand, Ms. Dinkel entered into a no contest plea to contributing to a child's misconduct, with a maximum sentence of 23 months in prison].

Potential for incorrect criminal history requires remand

Peter Maharry won in State v. Aschenbrenner, No. 123,385 (Kan. App. October 1, 2021) (unpublished), obtaining a remand with directions in a Thomas County burglary prosecution. Mr. Aschenbrenner argued that his original 2020 sentences were illegal because his criminal history score of C included a prior juvenile adjudication of criminal threat, and the PSI did not reflect whether the adjudication was based on the intentional or reckless version of the offense. The state argued Mr. Aschenbrenner’s illegal sentencing claim was barred because he agreed to his criminal history score on the record at sentencing. 

The COA disagreed with the state holding that Mr. Aschenbrenner’s stipulation to does not prevent the it from reaching the claim on appeal. Addressing the merits of the claim, the COA determined:

If the adjudication is not included in Aschenbrenner’s criminal history, then his criminal history score would be F . . . Thus, if Aschenbrenner committed the reckless version of criminal threat, then his sentence for each burglary conviction does not conform to the applicable statutory provision and is, in fact, illegal.

The COA declined to vacate Mr. Aschenbrenner’s sentences because the PSI did not establish which version of criminal threat was committed in the prior juvenile adjudication. Instead, the COA remanded with directions to the district court to determine whether the prior juvenile adjudication was based on the intentional or reckless version of criminal threat. The COA further directed the district court to vacate Mr. Aschenbrenner’s sentences and resentence him using the correct criminal history score if the state is unable to show that the juvenile adjudication was based on the intentional version of the offense.

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]

District court must inquire into conflict claims underlying plea withdrawal request

Jacob Nowak won in State v. Ramsey, No. 123,239 (Kan. App. October 1, 2021) (unpublished), obtaining reversal and remand with directions from summary dismissal of a plea withdrawal motion in a Sedgwick County robbery prosecution . Mr. Ramsey argued that the district court was required to appoint him counsel and hold an evidentiary hearing for two reasons: (1) he received ineffective assistance from counsel who was unprepared to go to trial, forcing Ramsey to accept a plea; and (2) he was denied his right to conflict-free counsel.

The COA noted that if the district court fails to fully investigate the basis for the claim and the necessary facts justify appointing new counsel, then the district court abuses its discretion. The COA reviewed the record and determined:

Because the district court did not inquire further about these concerns, it abused its discretion as a matter of law by failing to ensure Ramsey was represented by competent, conflict-free counsel.

The COA reversed the district court’s summary dismissal of Mr. Ramsey’s plea withdrawal motion and remanded for an evidentiary hearing on Mr. Ramsey’s plea withdrawal motion.

Saturday, October 16, 2021

Victim request for leniency can be part of departure analysis

Peter Maharry and Patrick H. Dunn won in State v. Bliss, No. 120,134 (Kan. App. September 24, 2021), obtaining reversal of one count in a multi-count Sedgwick County domestic violence prosecution. The state charged Mr. Bliss with two alternative counts of aggravated kidnapping. The jury returned a guilty verdict for both counts. Then the district court entered judgments of conviction on both counts as independent charges and imposed concurrent sentences of 84 months’ imprisonment with the sentence on one count held in abeyance.

On appeal, Mr. Bliss argued the state presented insufficient evidence to convict him on the first count of aggravated kidnapping. The state conceded the evidence was insufficient to support that conviction. However, the COA considered an "additional and fundamental error" with that conviction: “Because Bliss was charged with the two counts of aggravated kidnapping in the alternative, he could not be convicted and sentenced on both charges.”

The COA cited State v. Vargas, 313 Kan. 866, 867, 492 P.3d 412 (2021) noting that when jury verdicts are returned and entered for both alternative charges, the verdicts are merged as a matter of law resulting in only one conviction and sentence. The COA resolved both Mr. Bliss’s challenge to the sufficiency of the evidence in the first count and the conviction’s fundamental error:

We thus remand this case to the district court with directions to enter an amended journal entry correctly reflecting that Bliss’ conviction on Count 4 has merged into his conviction for aggravated kidnapping and a single 84-month sentence, effectively reversing one of his convictions for that offense and vacating one of his sentences.

The state had also appealed a durational departure granted in this case. The presumptive sentencing range was 203 to 226 months. The district court granted a durational departure to 84-months, relying on the victim's request for leniency and finding that Mr. Bliss did not have a history of committing violent crimes. The COA affirmed:

The State attempts to sidestep these weighty considerations, arguing that—under the first step in our analysis—the district court erred as a matter of law when it 42 considered M.B.'s request for leniency as a potential reason to depart. The State argues, based on the Kansas Supreme Court's decision in Hines, that a victim's request for leniency should never serve as a substantial or compelling reason to depart from a presumptive sentence in a case involving domestic violence. We do not read Hines so broadly.

. . . .

The State also asserts that the absence of violent criminal convictions can never justify a departure because a defendant's criminal history score already accounts for prior convictions. It is true that a district court may not justify a departure solely based on a criminal history score or factors the Sentencing Guidelines already have taken into account, such as "the difference in character between a defendant's past offenses and the present offense." But a court may consider a defendant's lack of violent history, in conjunction with other potentially mitigating factors, to determine whether the reasons given "'when considered as a whole, constitute substantial and compelling circumstances justifying departure.'"

Because the COA held that the district court's bases for departure were proper, it affirmed the durational departure.

[Update: the KSC denied both the state's and Mr. Bliss' petitions for review on February 1, 2022 and the mandate issued on May 5, 2022].

Wednesday, October 13, 2021

District Court not barred from considering on remand new video evidence that substantially impacts motion to suppress

Randall Hodgkinson won in State v. Thompson, No. 122,959 (Kan. App. Sept. 10, 2021)(unpublished), obtaining reversal and remand in a Reno county drug possession prosecution on a suppression issue. The case arose when a deputy pulled Mr. Thompson over for allegedly failing to yield to the deputy’s emergency-lighted vehicle. A search after that stop discovered drugs. At the district court, Mr. Thompson filed a motion to suppress asserting the deputy’s emergency lights were not on when he passed the vehicle, meaning the officer did not have cause for the traffic stop. Mr. Thompson testified that when he passed the deputy’s vehicle he had not emergency lights on. The deputy testified, however, that he had his rear emergency lights on after finishing another traffic stop. While camera footage from the front of his vehicle showed no visible flashes of red and blue lights, despite it being pitch black outside that night, the officer said the lights were not visible from the front.

The district court initially ordered suppression, but the State filed an interlocutory appeal. A panel of the Court of Appeals then reversed, saying the district court’s written order still stated that deputy’s rear lights were on, and the deputy’s testimony supported that finding, justifying the stop. The panel in that appeal rejected Mr. Thompson’s argument that the district court had, in fact, found Mr. Thompson’s testimony that the emergency lights were off more credible than the deputy’s testimony. On remand, Mr. Thompson renewed his suppression issue after discovering at the bench trial that a camera from the deputy’s vehicle contained a 360-degree view which showed the emergency lights were off, but the district court found it could not consider that evidence based on the mandate from the first appeal. Mr. Thompson was convicted of drug crimes following the bench trial.

On the second appeal, a second COA panel held the district court was not barred considering the suppression issue based upon the new evidence. The panel first noted that the district court incorrectly viewed the previous appellate mandate as restricting its ability to consider the new evidence. In particular, the mandate from the first case, which reversed the district court's order of suppression and remanded the case for further proceedings, did not prevent the district court from considering the issue anew given the new evidence presented. The panel further rejected the State’s argument that res judicata barred reconsideration of the issue, as the doctrine does not apply to proceedings following remand from a prior appeal. Likewise, law of the case did not preclude consideration of the issue because it arose upon new evidence developed upon remand. Finally, the panel rejected the argument that K.S.A. 22-3216 required Mr. Thompson file a second motion to suppress, noting that Mr. Thompson’s arguments were the same as in his original motion, and a court may re-entertain a motion to suppress based upon new evidence produced at trial. The panel, thus, reversed and remanded the case with direction for the district court to consider Mr. Thompson’s renewed motion to suppress in light of the new camera footage.

Failure to adequately investigate and present available defense challenging State’s central theory of case is ineffective assistance of counsel requiring new trial [PR GRANTED]

 William J. Skepnek, of The Skepnek Law Firm, P.A., of Lawrence, Keynen J. (K.J.) Wall, Quentin M. Templeton, and Russell J. Keller, of Forbes Law Group, LLC, of Overland Park, Stephan L. Skepnek, of The Sader Law Firm, of Kansas City, Missouri, and Kevin Babbit, of Fagan & Emert, LLC, of Lawrence, Kansas won in State v. Buchhorn, No. 122,252 (Kan. App. August 13, 2021) obtaining a new trial in a Douglas County second-degree murder prosecution.

The case involved the death of a nine-month old child. Ms. Buchhorn worked at the daycare where the child died. She was the last person who admitted to having contact with the child, but consistently denied harming the child. The State charged Ms. Buchhorn with first-degree murder.

The State’s theory of prosecution at trial relied on then Douglas County Coroner Erik Mitchell, who performed the autopsy:

Dr. Mitchell's autopsy revealed that O.O. had suffered a significant skull fracture but no brain swelling. Dr. Mitchell deduced that O.O. died instantly following a blow to the head, which he claimed released mechanical energy into the base of the brain causing ‘temporary cessation of function at the base of the brain’ or ‘depolarization of neurons.’ He suspected that O.O. was stepped on.

At trial, Buchhorn’s counsel presented testimony from forensic pathologist Dr. Carl Wigren that the skull fracture showed signs of healing, meaning the injury was a few days to a week old, and the cause of death was unknown. The defense did not directly address Dr. Mitchell’s “depolarization theory”. Ms. Buchhorn was convicted of the lesser-included offense of reckless second-degree murder.

Following the verdict, Ms. Buchhorn obtained new counsel who moved for a new trial arguing, inter alia, that her previous counsel provided ineffective assistance of counsel by failing to adequately investigate and challenge Dr. Mitchell’s dubious forensic testimony. To support those claims, the defense presented new medical expert testimony, including Dr. Sudha Kessler, a pediatric neurologist who had extensive experience treating pediatric brain injuries, who explained the “depolarization theory” was unreliable:

[Dr. Mitchell's theory is] just fantastical, because it's not something I have ever been taught, not something I teach, not something—just not consistent. It's not consistent with the medical literature because there is no literature on magical disruption of the brain that causes death and that doesn't exist. In addition to looking though my own textbooks, looking through the two database searches I did, I was so taken aback by all this that I ... [asked] my colleagues if they have heard of this idea; and honestly, most of the time, the response that I got was laughter.

The defense further presented testimony from Alice Craig, a professor at the University of Kansas School of Law and attorney at the Paul E. Wilson Project for Innocence & Post-Conviction Remedies, who opined that given Dr. Mitchell’s testimony on the “depolarization theory” at the preliminary hearing raised questions on its validity, reasonable counsel would have investigated the basis for the theory, recognized it was dubious, and challenged it directly. The district court denied the motion for new trial, noting Ms. Buchhorn’s trial counsel had considerable experience, and had prepared what was potentially a winning strategy at trial.

The COA reversed the district court, holding, under the Strickland v. Washington standard, that Ms. Buchhorn’s trial counsel ineffective and prejudiced her right to a fair trial in these circumstances. The failure to investigate the “depolarization theory” was objectively unreasonable given that it was clearly established as central to the State’s case prior to trial, and minimal investigation would have established its dubious nature. Therefore, the defense utilized by counsel at trial was not a strategic decision, but one based on a failure to investigate other available defenses. The COA explained:

The trial court erred in finding it was reasonable for Buchhorn's counsel to rely upon Dr. Wigren to define the medical issues they needed to address. The ultimate control of a case rests with the lawyers and not the expert witnesses. It is incumbent upon the lawyers to define clearly for the experts the scope of their assigned tasks. Here, the communication channel broke down. The lawyers expected Dr. Wigren to tell them everything they needed to know about O.O.'s death and Dr. Mitchell's theory on causation. Dr. Wigren, however, apparently understood his engagement far more narrowly and offered an expert opinion on the skull fracture and possible causes of death rather than a critique of Dr. Mitchell's theory.

The COA further explained that while the decision to hire Dr. Wigren may have been reasonable to contest the timing of the skull fracture, the failure to reasonably investigate, and to present expert testimony challenging the State’s dubious central theory of the case was not. The COA further found Ms. Buchhorn’s defense was prejudiced by these failures given that the lack of any physical evidence tying her to the death meant the case hinged on the credibility of Dr. Mitchell’s “depolarization theory”, and evidence could have been presented establishing its dubious nature.  

[Update: the state filed a petition for review on September 7, 2021.]

[Further update: the KSC granted the state's PR on November 24, 2021.]

Thursday, September 09, 2021

Failure to give jury instruction on non-exclusive possession of a vehicle requires new trial.

 Randall Hodgkinson and Washburn student intern (now Wichita PD) Daniel Beall-Hall won in State v. Douglas, No. 122,583 (Kan. App. Aug. 6, 2021)(unpublished), obtaining a new trial in a Reno County prosecution for possession of methamphetamine and possession of drug paraphernalia. The case arose in 2017 when a deputy stopped Mr. Douglas for speeding. Mr. Douglas was driving a truck that belonged to a contractor he worked for, which four or five other employees also regularly drove. While searching the truck the deputy found a clear pill containing methamphetamine as well as a spoon and syringe. The deputy would testify at trial that he saw the pill fall from Mr. Douglas’ pocket, while Mr. Douglas would testify that there was no pill in his pocket at all. Consistent with his defense that the pill and paraphernalia belonged to one of the other users of the truck, Mr. Douglas requested a jury instruction on non-exclusive possession of the vehicle (See PIK Crim. 4th 57.040), which the district court denied. The COA found the failure to give the instruction was erroneous:

A criminal defendant generally is entitled to an instruction on the law applicable to his or her theory of defense if the instruction would be both legally and factually appropriate. State v. Dupree, 304 Kan. 377, 397, 373 P.3d 811 (2016). Douglas' sole defense at trial was that the methamphetamine and drug paraphernalia found in the truck must have belonged to another person with access to the truck. Based on the record before us, Douglas' requested instruction on nonexclusive possession was legally and factually appropriate and the district court erred by failing to give the instruction.

In finding the error required a new trial, the COA emphasized the factual dispute over where the pill was located:

Douglas' entire defense at trial was that the methamphetamine and drug paraphernalia found in the truck must have belonged to another person with access to the truck, and there was evidence at trial that supported this defense. Douglas had a right to receive his requested jury instruction on nonexclusive possession of the vehicle, and we conclude the State has failed to meet its burden of showing that the instructional error was harmless.

[Update: the state did not file a PR and the mandate issue on September 15, 2021.]

Saturday, September 04, 2021

No evidence of provocation to support attempted manslaughter conviction

Peter Maharry won in State v. Boldridge, No. 121,942 (Kan. App. August 13, 2021)(unpublished), obtaining reversal in a Atchison County attempted voluntary manslaughter prosecution. The prosecution stemmed from an Atchison police officer's investigation of potential theft of services and the resultant exchange of gunfire between between Mr. Boldridge and the officer.  In particular, Mr. Boldridge argued that there was no evidence in the record to support a finding of provocation  required for the form of attempted voluntary manslaughter as the jury was instructed. Mr. Boldridge argued that he could not have been acting with legally sufficient provocation because he was reacting to an attempt to make an arrest, which cannot be lawfully resisted, even if the arrest itself is unlawful. The COA reluctantly agreed:

We find Boldridge's argument is correct even if the result it mandates feels wrong. Generally, the existence of legally sufficient provocation would make Boldridge's actions less culpable, i.e., the jury could convict him of attempted voluntary manslaughter as opposed to attempted second-degree murder. But, the jury had the option to convict Boldridge of attempted second-degree murder and declined to do so. Its verdict, therefore, stands or fails based on the sufficiency of the evidence for attempted voluntary manslaughter. Our role is to resolve issues of law, not questions of fact or matters of equity. Here, an essential element of the offense—legally sufficient provocation—is lacking.

The COA rejected the state's primary claim that Mr. Boldridge was barred from raising this issue because it was invited error. Recognizing that there is a difference between an instructional issue and a sufficiency issue, the COA reiterated that the state has to prove every element of the charged crime, regardless of the requested instructions. As a result, the COA reversed the attempted voluntary manslaughter conviction.

[Update: the state did not file a PR and the mandate issued on September 21, 2021.]