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 Sept. 10, 2021)(unpublished), obtaining reversal and remand in a Reno county drug possession prosecution on a suppression issue.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.

 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.]

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.]

Saturday, August 28, 2021

Clear error plus?

Michelle A. Davis won in State v. Tommy Jones, No. 119,764 (Kan. August 6, 2021), obtaining reversal of two counts in a Sedgwick County sexual exploitation of a child prosecution. The state had charged Mr. Jones in two counts with ""promot[ing] any performance that includes sexually explicit conduct by a child under eighteen (18) years of age . . . knowing the character and content of the performance." But the jury instructions only required the state to prove he "persuaded, induced, or enticed the child victim to engage in sexually explicit conduct 'with the intent to promote a performance.'"  Unsurprisingly, the state admitted that the instructions for these two counts were legally erroneous.

The real question on appeal was whether the error required reversal. Because the instructions were not objected to below, the COA held they were not clearly erroneous. And this is the interesting aspect of this case--the ongoing difficulty squaring clear error review with the constitutional harmless error test. The KSC recognized that omission of an essential element is a significant constitutional error, which normally would trigger application of the constitutional harmless error test.  But it went on to hold, in form at least, that because the error was not raised at the district court, the clear error test for instructional errors should apply. But it went on to find that the error was reversible in this case in terms that sound a lot like constitutional harmless error review: 

The overlap of "sexy" with "sexually explicit conduct" is not so complete as to warrant our firm belief, on appellate review, that the error had little likelihood of changing the result at trial.

In its discussion of the proper reversal standard, the KSC cited State v. Daniels, 278 Kan. 53, 58-63, 91 P.3d 1147 (2004) as reviewing the omission of an element for clear error, but noting the need to evaluate harmlessness under the test set forth in Neder v. United States, 527 U.S. 1, 17  (1999). So it may be that for some significant constitutional instructional errors, although appellate courts are still called to conduct clear error review for reversal, it may be a slightly more robust species of clear error.

As an aside, the reversal of these two counts led to the reinstatement of two other counts that had been vacated by the COA as multiplicitous, so it is not clear if this decision will impact Mr. Jones' sentence that much. But keep it in mind when thinking about reversal standards for instructional issues involving constitutional error.

Saturday, August 07, 2021

Insufficient evidence that offenses of conviction were sexually motivated

Meryl Carver-Allmond won in State v. Rinke, No. 122,413 (Kan. July 30, 2021), reversing the district court's finding that Mr. Rinke's crime was sexually motivated requiring him to register as a sex offender in a Johnson County murder prosecution. After pleading guilty to felony murder and aggravated kidnapping, when sentencing Mr. Rinke, the district court also made findings that the offenses were sexually motivated. On appeal, Mr. Rinke argued that any sexual acts were unrelated to the offenses of conviction. Reviewing the record for substantial competent evidence, the KSC found the record was insufficient to support the district court's finding:

The plain language of K.S.A. 2020 Supp. 22-4902(c)(18) defeats the State's other argument that crimes following sex need be intertwined only with the sex act to be considered crimes performed for sexual gratification. The statutory language does not say that an unlisted nonsex crime need only be temporally or otherwise intertwined with an act that led to sexual gratification. Instead, it requires that Rinke committed felony murder and kidnapping "for the purpose of the defendant's sexual gratification." K.S.A. 2020 Supp. 22-4902(c)(18). No evidence suggests Rinke murdered and kidnapped J.P. for the purpose of a sexual reward, so he would reach the state of being sexually gratified, or because those crimes gave him a source of sexual satisfaction or pleasure.

As a result, the KSC reversed the order for sex offender registration.

Friday, July 09, 2021

Self-Defense Dismissal Affirmed

Jess W. Hoeme, and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, won in State v. Betts, No. 122,268 (Kan. App. June 18, 2021) affirming Judge O’Connor’s finding that Mr. Betts was entitled to self-defense immunity in a Sedgwick County reckless aggravated battery prosecution. The prosecution stemmed from events where Mr. Betts - then a Wichita Police Officer - fired two shots at a lunging dog after entering a home during an investigation. Mr. Betts’ shots missed the dog, but fragments from one of the bullets ricocheted and hit a young girl in the eyebrow and toe. The state charged Mr. Betts with reckless aggravated battery.

The district court granted Mr. Betts’ pre-trial motion for self-defense immunity, holding that he met the standard for both a subjective and objectively reasonable belief that use of deadly force was justified. In affirming, the COA noted that the material facts were not in dispute, and that the state had waived any argument that the lunging dog was not unlawful force for purposes of the self-defense statutes. Following the opinion in State v. Bowers, 239 Kan. 417, 425, 721 P.2d 268 (1986), and noting testimony that the Wichita Police Department policy authorized use of force against animals and “it was not uncommon for an officer to use their weapon against a dog”, the COA recognized that attacking dogs can qualify as deadly force supporting a subjective and objectively reasonable use of deadly force under the self-defense statutes. The COA further rejected the State’s arguments that self-defense was unavailable for reckless crimes, noting that reckless behavior requires a person unjustifiably disregarded a danger, and self-defense acts as a justification. The COA clarified that the self-defense immunity statute can apply “regardless of whether the State has charged conduct that is intentional, knowing, or reckless.”

Looking into the limited data on police / dog interactions, it appears that the encounters are significantly more deadly for the dog than the officers. While there are no official national statistics, the Department of Justice published a report estimating that 20 - 30 dogs are killed by police each day in the U.S., or between 7,300 – 10,950 a year. The National Law Enforcement Memorial Fund does not include dog attack as the cause of death for any officer between 2010 and 2020, and their database of narrative descriptions of on-duty deaths comes up with no results when searching for “dog” or “canine” [However, searching for “horse” found over 50 deaths related to horse accidents going back to the 1700’s]. Nationally, there was an average of 29.1 dog bite relateddeaths per year between 2000 and 2015. In comparison, bee stings caused anaverage of 62 deaths per year between 2000 and 2017.

[Update: The State filed a petition for review on July 15, 2021.]

Friday, June 25, 2021

Governor grants clemency to 8

Here is a Kansas Reflector article reporting that Governor Kelly granted clemency to eight people last week. The article has some nice background on the recipients and also some historical information about clemency practice in Kansas.

As noted in the article, grants of clemency can be risky for politicians:

“There is some political risk in doing this,” the governor said. “Your opponent, given the opportunity, can and will use it against you if somebody you pardon does something wrong. So I think governors tend to weigh the political risk pretty heavily, because there is a downside.”

Still, she said, “we have to realize that we’re dealing with human beings here.”

As noted in the article, there has not been a lot of success in the pardon/commutation world in Kansas in recent decades. But this might be a sign that defenders should not forget about this option for clients with stories of procedural injustice that cannot be remedied by the court system. 

Wichita defense lawyer wins acquittal in international criminal tribunal

Kurt P. Kerns won an acquittal for his client, Dick Prudence Munyeshuli, in an international criminal tribunal in Arusha, Tanzania. As described in the judgment here, his client was charged with contempt for allegedly improperly revealing the identities of protected witnesses and having improper conduct with protected witnesses in a previous international criminal prosecution. The judge found that although Mr. Munyeshuli had some culpability, the prosecution had not proved its case:

The evidence presented by the Defence reflects that Mr. Munyeshuli’s Lead Counsel, Mr. Peter Robinson, instructed him to commit the violation at the heart of this charge. Mr. Munyeshuli deserves a warning for his conduct in these circumstances and not a criminal conviction. I am entering a finding of NOT GUILTY for Mr. Munyeshuli under Count 3 of the Nzabonimpa Indictment. 

Congratulations and great work, Kurt!