Saturday, May 29, 2021

Failure to give requested involuntary manslaughter instruction requires new murder trial

Korey A. Kaul won in State v. Nunez, No. 121,284 (Kan. May 14, 2021), obtaining a new trial in a Sedgwick County first-degree murder prosecution. Although the KSC held that the district court had sufficient evidence to overcome Mr. Nunez' immunity claim, it went on to hold that the district court improperly refused to give a requested instruction for involuntary manslaughter as a lesser included offense. The district court gave instructions on lessers for second-degree intentional murder and voluntary manslaughter and on self-defense. But the district court refused to give Mr. Nunez' requested instruction for involuntary manslaughter-excessive force, holding that, because . The KSC applied its recent cases to hold that a defendant need not concede that a killing was reckless or unintentional to get an instruction on involuntary manslaughter-excessive force. The KSC went on to hold that the requested instruction was factually appropriate in this case:

Here, the evidence that Nunez possessed a reasonable and honest belief in the necessity of physical force to defend himself or his property, at least initially, was substantial. One testifying witness from the scene stated that Guzman had taken Nunez by the neck and was holding a blade to him, a blade that may have left the mark on Nunez' neck that was noted by law enforcement. Nunez repeatedly told law enforcement officers that Guzman had attacked him with a knife. Although it was not a kitchen knife, as described by Nunez, a boxcutter was found close to Guzman's body. And Nunez told the 911 dispatcher that it was a situation of either Nunez or Guzman surviving the attack. 

Finally, the KSC addressed whether the error in this case was harmless:

If the jury accepted parts of Nunez' theory of his defense that were supported by the evidence, it could conclude that Nunez was afraid for his life after being attacked by a knife-wielding assailant. Although a third party pulled Guzman off of Nunez, causing Guzman to fall down, in the short time that followed, Nunez might well have been afraid for his life, fearing that Guzman would stand back up and renew his attack, possibly using the nearby boxcutter. Nunez repeatedly told police that he saw Guzman reaching for a knife even while he was wounded and on the ground. The excessive force would consist of fatally shooting an assailant three times while the assailant was falling down or lying on the floor, but such a scenario is what imperfect self-defense is intended to address.

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

Friday, May 28, 2021

Double rule applies when separate complaints are consolidated for trial

Reid T. Nelson and Debra J. Wilson won in State v. Dixon, No. 120,587 (Kan. App. May 14, 2021), obtaining a new sentencing hearing in a Sedgwick County prosecution for aggravated kidnapping, rape, and other charges stemming from two consolidated cases. The COA affirmed Mr. Dixon's convictions, but took issue with the sentencing procedure. In this case, two separate cases, each involving multiple charges, were consolidated for trial. At sentencing, the district court set a base sentence of 653 months in the first complaint and additional consecutive sentences from that charging document for a total of 1,157 months. The district court also set a base sentence of 653 months in the second complaint and additional consecutive sentences from that charging document for a total of 888 months. The district court ran the sentences from the two cases consecutively for a total controlling sentence of 2,045 months.

Under K.S.A. 21-6819(b)(4), the "total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence." This is sometimes know as the "double rule." By its terms, it only applies to multiple convictions arising from a single complaint. Even where cases are consolidated for trial, the statute would purport to result in two base sentences and two applications of the double rule.

Mr. Dixon challenged this construction of the statute as unconstitutional under the Equal Protection Clause and the COA agreed:

Dixon's argument that the double rule distinguishes between "arguably indistinguishable" classes has merit. Essentially, both classes of defendants Dixon identifies proceed to one trial on multiple charges that "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." But only defendants who have all the crimes brought in one charging document can benefit from applying the double rule to all the convictions together. Defendants who have crimes filed in separate charging documents consolidated for trial cannot benefit from applying the double rule to all the convictions together. The only difference between these two classes of defendants is whether there is one case number or two. 

We find that the double rule treats arguably indistinguishable classes of defendants differently. 

The COA next considered whether such disparity could stand in light of the low "rational basis" test for Equal Protection challenges. The COA noted that, if Mr. Dixon could benefit from the double rule on his entire sentence, his maximum sentence would have been 1,306 months. Instead, because he was charged in two complaints instead of one, he received a sentence of 2,045 months. 

We are mindful that the rational basis test is a very lenient standard and a statute must be enforced as written "if any state of facts reasonably may be conceived to justify it." But we are unable to find that the strict application of K.S.A. 2020 Supp. 21-6819(b)(4) to Dixon's cases implicates any legitimate sentencing goal. As a result, we find that the statute, as applied to Dixon's cases, does not pass rational basis scrutiny. Thus, we conclude that the double rule found in K.S.A. 2020 Supp. 21- 6819(b)(4), as applied to Dixon's cases, violates his equal protection rights under the Fourteenth Amendment.

The COA went on to hold that the proper remedy was to extend the protection of the double rule to all of Mr. Dixon's sentences.

[Update: Mr. Dixon filed a petition for review from the affirmance of his convictions on June 4, 2021.]

Saturday, May 22, 2021

Appellate court should not make criminal history findings

Michelle A. Davis won in State v. Rankin, No. 122,818 (Kan. App. April 30, 2021), obtaining a remand for determination of whether a prior crime was a person felony. On appeal, Mr. Rankin sought to challenge a prior juvenile adjudication used in his criminal history calculation score under Boettger. In response, the state sought to prove that the prior adjudication was for intentional criminal threat asking the appellate court to take judicial notice of the complaint from the juvenile case. The COA acknowledged that it could take judicial notice of the district court document, but still held that it should not make a criminal history finding on appeal:

Here, the State is asking this court to make factual findings beyond what is necessary to resolve a mootness issue. Although this court can take judicial notice of the original complaint . . .  we observe that this evidence alone does not necessarily resolve whether Rankin's juvenile adjudication for terroristic threat was based on the intentional or reckless version of the statute; the original complaint may have been amended later in the proceedings. Rankin should receive a full hearing in district court to resolve the issue. At such a hearing the district court should consider all available records in [the juvenile case] including the original and any amended charging documents, any plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and the journal entry of adjudication.


Monday, April 26, 2021

Credibility determinations require giving self-defense instruction

Michelle A. Davis won in State v. Holley, No. 121,181 (Kan. April 23, 2021), obtaining a new trial in a Sedgwick County first-degree murder and child endangerment prosecution. At trial, Mr. Holley requested a self-defense instruction, but the district court refused because it found that Mr. Holley was committing a forcible felony. The state had conceded that the instruction should have been given, but asserted that the failure to do so was harmless. The KSC agreed that the instruction was legally appropriate under its more recent case law and that it was factually appropriate. But it disagreed that with the state that the error was harmless:

The jury was provided with competing narratives. According to Reed, Holley tried to rob Smith at gunpoint and fired the initial shot. But according to Holley, Smith tried to rob Holley by grabbing his $200-$300 cash and fired the initial shot, followed by an attempted shot that was only prevented by Smith's gun jamming. 

The physical evidence supported Holley's claim that both Smith and Holley fired or tried to fire shots. Smith's Jimenez pistol was jammed and a live Hornady .380 auto caliber cartridge was stuck inside the barrel. Holley admits to shooting Smith and ballistic testing showed the Smith & Wesson Bodyguard Holley possessed at the time of his arrest matched the projectile recovered from Smith's autopsy. 

The physical evidence, however, does not establish who fired or tried to fire their gun first. The sequence of events hinges on testimony from Reed and Holley. Thus, whether Holley used self-defense boils down to a credibility question. Without the jury making this credibility determination, we cannot be sure that the court's failure to instruct the jury on self-defense did not affect the outcome of this trial. 

As a result, the KSC reversed the murder conviction and remanded for new trial. The KSC also affirmed the child endangerment conviction, holding that the state did not have to prove probability or likelihood of harm to prove child endangerment.

Misstatement of law and fact require new trial

Jennifer C. Roth won in State v. Watson, No. 118,710 (Kan. April 23, 2021), obtaining a new trial in a Wyandotte County Medicaid fraud prosecution. The charges stemmed from allegations that Mr. Watson submitted inaccurate time sheets as part of his employment with a home health-care agency. Mr. Watson admitted that the time sheets did not accurately reflect exact times of day worked, but asserted that the total time was accurate. After a jury convicted Mr. Watson, the district court ordered over $13,000 in restitution.

The COA had found one harmless prosecutorial error, but vacated the restitution order. The KSC found an additional prosecutorial error and held that the errors required reversal:

The prosecutor misstated the evidence by arguing Watson failed to provide any proof that he had worked the total hours recorded on his time sheets, an argument that disregarded Watson's own testimony. The prosecutor also misstated the law by arguing Watson was guilty of Medicaid fraud based solely on his submission of inaccurate timesheets, without regard to whether Watson had acted with intent to defraud. These errors substantially diminished, or effectively eliminated, an essential element of the crime of conviction—the defendant's intent to defraud Medicaid. Simultaneously, the errors undermined Watson's central defense to this charge—that he acted without intent to defraud.

The KSC clarified that proof of inaccurate time sheets only satisfied one element of the offense of Medicaid fraud, but not the culpable mental state requirement:

Under the plain language of this statute, proof that a defendant made false statements or misrepresentations to Medicaid satisfies only one element of Medicaid fraud. To secure a conviction, the State must also prove the defendant made such false statements or misrepresentations with the "intent to defraud." An "[i]ntent to defraud" means "an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property." K.S.A. 2019 Supp. 21-5111(o). As used in this definition, "deception" means "knowingly creating or reinforcing a false impression, including false impressions as to law, value, intention or other state of mind." K.S.A. 2019 Supp. 21-5111(e).

The KSC concluded that the prosecutor's misstatement of fact and law went to the heart of Mr. Watson's defense (that he did not have intent to defraud), and therefore required a new trial.

Friday, March 26, 2021

Court's mistake leads to statutory speedy trial violation

Peter Maharry won in State v. Queen, No. 120,643 (Kan. March 19, 2021), reversing Douglas County second-degree murder, attempted second-degree murder, and attempted voluntary manslaughter convictions. During the prosecution, at one point the district court and the prosecutor incorrectly stated that the statutory speedy trial deadline was April 30 when in fact it was March 30. The district court faulted the defense attorney for failing to inform the Court of the mistake and also held that the crowded docket exception allowed the court to extend the speedy trial period.  The KSC rejected each rationale:

Likewise, here, the appellate record does not include an order entered during the 150-day statutory period that granted a continuance based on any of the reasons authorized in the speedy trial statute. Even so, the State argues the judge implicitly invoked the crowded docket exception. But the overall structure of the statute supports an interpretation that the exception applies only if the trial court enters an order deferring an initial setting to a future date. Each exception in K.S.A. 2020 Supp. 22-3402 requires overt action on the part of the district court and does not automatically spring into operation. 

For example, K.S.A. 2020 Supp. 22-3402(a) and (b) provide an exception when "the delay shall happen as a result of the application or fault of the defendant." Referring to that exception, K.S.A. 2020 Supp. 22-3402(c) says that in such cases, "the trial shall be rescheduled within 90 days of the original trial deadline." (Emphasis added.) Subsections (d), (e)(1), and (e)(2) contain similar provisions if a defendant's failure to appear or competency matters delay the trial. 

But subsections (e)(3), relating to the unavailability of material evidence, and (e)(4), relating to crowded dockets, are different. Rather than require the district court to reschedule the trial, the statutory language provides grounds under which the court may extend the trial time through "[n]ot more than one continuance." The use of the words "extended" and "continuance" in these exceptions is significant. It reveals an intent by the Legislature to require an overt act—the granting of a continuance—for the exceptions to apply. These exceptions do not automatically spring into operation simply because of the existence of the statutory factors. 

As a result, the KSC held that the crowded docket exception did not extend the time limit beyond 150 days. The KSC also held that the record did not support a finding of acquiescence: 

Here, Queen's counsel's statement that the proposed trial date "works for defense" was a passive response to the judge's inquiry into availability and does not rise to the level of acquiescence to a continuance beyond the speedy trial deadline or a waiver of the statutory speedy trial right. Under our caselaw, something more is required than this type of passive response. 

Even so, the district court judge held, and the State now contends, that defense counsel had a duty to speak up because Kansas Rule of Professional Conduct (KRPC) 3.3 (2020 Kan. S. Ct. R. 353), imposes on Kansas attorneys a duty of candor toward the court. KRPC 3.3 prohibits an attorney from knowingly misleading the court as to an incorrect statement of law or fact. We first observe that the record fails to establish that defense counsel knowingly misled the court. We also note the tension between the district court judge's expectations of counsel and both our caselaw and defense counsel's role in the adversarial process in a criminal case, tensions the Court of Appeals discusses. We refrain from that discussion because of the guidance in comment 20 to the prefatory scope of the KRPC. Comment 20 instructs that a violation of a KRPC does not create a presumption that a legal duty has been breached, does not necessarily warrant nondisciplinary remedies, should not be used as procedural weapons, and does not provide adversaries with standing to seek enforcement of the rules. In other words, nothing in the KRPC alters our longstanding caselaw that a criminal defendant has "no obligation to take affirmative action" to protect his or her speedy-trial right.

Because a passive response to the district court's inquiry was not acquiescence, it also did not excuse the speedy trial violation.

As a result, the KSC reversed and remanded with directions to dismiss the charges against Mr. Queen with prejudice.

Saturday, March 06, 2021

Stand-Your-Ground ruling supported by sufficient evidence

Patrick H. Dunn won in State v. Dukes, No. 121,790 (Kan. App. February 12, 2021), affirming Judge Mitchell's finding that Mr. Dukes was entitled to Stand-Your-Ground immunity in a Sedgwick County voluntary manslaughter prosecution. The prosecution stemmed from an altercation where the decedent had approached Mr. Dukes in his truck, ran back to his car after Mr. Dukes displayed a handgun, and retrieved his own handgun and headed back towards Mr. Dukes' truck. Mr. Duke shot at the decedent, resulting in the decedent's death. The district court held that Mr. Dukes met the standard for both a subjective and objectively reasonable belief that use of deadly force was justified. Under the appropriate standard of review, the COA affirmed:

In particular, the court found that Berryman had a semi-automatic weapon within reach (under him on the passenger seat) when he returned to his car. The district court found that this evidence and a reasonable inference therefrom—Berryman had purposefully retrieved the gun since Lawton was in the passenger seat when Berryman drove into the parking lot—combined with Dukes' testimony that he believed Berryman was retrieving a gun with the intent to shoot him and that Dukes saw Berryman with a gun when Dukes drove away, were sufficient to convince a reasonable person that Dukes acted with a reasonable belief that his life was in danger.

Having reviewed the transcript of the evidentiary hearing, we conclude there is evidence in the record that supports the district court's finding that Dukes "waffled"—i.e., vacillated or flip-flopped—in his account of whether Berryman had a gun when he first approached Dukes' truck. As the district court indicated, Dukes initially told the police that Berryman carried a gun when he came toward the truck, but at the hearing Dukes stated he thought he saw Berryman with a gun when Dukes was driving out of the parking lot. The State places too fine a point on the district court's use of the verb "waffled" (instead of using a word like "altered"), especially since the State did not correct the court when it used the same language in its initial denial of Dukes' request for immunity. Regardless, the district court's finding is supported by substantial competent evidence in the record.

 At its core, the State's argument is not so much a challenge to the sufficiency of the evidence supporting the district court's finding as it is an effort to undermine to the court's credibility assessments and weighing of Dukes' testimony against the State's assertions that Dukes, not Berryman, was the initial aggressor in the confrontation. In its brief, the State urges several reasons why the court should not have credited Dukes' account of the events. But it is not our role on appeal to second-guess credibility determinations. Instead, we must determine whether relevant and legal evidence in the record supports the district court's factual findings.

Because substantial evidence supported the district court's finding, the COA affirmed the dismissal.

[Update: the state filed a PR on March 4, 2021.]

Friday, February 12, 2021

Proof by clear and convincing evidence is not proof beyond a reasonable doubt

Randall L. Hodgkinson won in State v. Baumgarner, No. 121,092 (Kan. App. January 22, 2021), reversing a Sumner County criminal possession of a firearm conviction. The state charged Mr. Baumgarner with possession of a firearm by a person "who is or has been . . . subject to involuntary commitment." The only evidence introduced by the state on the question of Mr. Baumgarner's status was an order from a previous commitment hearing finding, by clear and convincing evidence, that Mr. Baumgarner was such a person. The COA first held that the statute requires proof of actual status, not merely a previous adjudication: 

the State's position cannot be easily reconciled with the governing statutory language in several respects. We, therefore, reject a construction of the statute making adjudication under the Care and Treatment Act either a necessary or a sufficient condition to convict for criminal use of a weapon. The exercise also demonstrates why Baumgarner's take is truer to the statutory language.

The COA then held that the evidence in this case, proof by clear and convincing evidence, was insufficient to support a conviction beyond a reasonable doubt:

the only evidence the State presented bearing on Baumgarner's mental status was a certified copy of the order of adjudication entered in 2015. And that order included a finding by clear and convincing evidence that Baumgarner had a mental illness permitting his involuntary commitment. Under Kansas law, clear and convincing evidence is a degree of proof greater than a preponderance and less than beyond a reasonable doubt. If proved by clear and convincing evidence, a fact has been established to be "highly probable." Not to belabor the point, a "highly probable" fact has not been proved beyond a reasonable doubt.

 Accordingly, without some additional evidence, the finding in the 2015 order adjudicating Baumgarner could not and did not prove his mental status beyond a reasonable doubt. Jurors properly instructed on the differing burdens of proof could not conclude otherwise. It is no rejoinder to say that the order was some circumstantial evidence that Baumgarner may have been mentally ill beyond a reasonable doubt. In the absence of other evidence, such an inference would be no more than unsupported speculation or conjecture—a vaporous notion insufficient to support a criminal conviction.

As a result, the COA reversed the conviction and sentence.

[Update: the state filed a PR on March 1, 2021.]