Garden City acquittal

Lucille Douglass won an acquittal in State v. Lopez, a seven-day Finney County agg battery trial. Here is the Garden City Telegram article reporting on the acquittal. Apparently the doctors knee-jerked to a shaken-baby diagnosis, but after effective cross-examination by Lucille, the doctors had lost credibility before the jury. In fact, Lucille reported that the jury was appalled that the doctors concluded that "absent a witnessed traumatic event, we consider these symptoms diagnostic for abuse," and by the fact that the medical professionals misrepresented the medical history provided.

Another in a line of cases showing that a lot of"shaken baby" diagnoses can be mis-diagnoses.

Another Emporia acquittal

Brandon Bell won an acquittal in State v. Washington, a Lyon County rape case. Here is a synopsis of the case:

The state charged Mr. Washington was charged with forcible rape. At trial, the state's only evidence was the statement of the alleged victim (which changed in significant detail every time she had previously told the story) and some superficial indications during the SANE/SART exam which were consistent with consensual sex. The state called a number of witnesses who's sole purpose seemed to be to testify how upset the alleged victim was hours after the incident.

The jury deliberated for a little more than two hours before coming back with a not guilty verdict. The jury was all-white (the state had struck the sole black and Hispanic members of the panel with peremptory challenges), the defendant was black, and the alleged victim was a white teenager. The defense was consent.

Sounds like To Kill A Mockingbird, but with a different ending.

Day of Action to Restore Law and Justice

What a radical concept. Here is the link.

Unanimity revisited

Shawn Minihan and Korey Kaul won in State v. Voyles, No. 92,030 (Kan. June 22, 2007), reversing Kingman County aggravated criminal sodomy and aggravated indecent solicitation conviction for failure to give a unanimity instruction. The KSC abandoned its somewhat convoluted test for reversal for such error set out in State v. Hill, its own 2001 case. Now, the Court asks three questions. First: is the case a multiple acts case (a legal question). Second: if it is a multiple acts case, the state must elect an act or the trial court must give a unanimity instruction. Failure to do so in a multiple acts case is error. Finally, the KSC indicated that it will use normal "clear error: analysis to determine whether error will require reversal where the instruction is not requested:

For the third step, the ultimate and specific test for harmlessness under the circumstances of this case is the "clearly erroneous" standard, not Hill's "harmless beyond a reasonable doubt with respect to all acts" or the other options previously discussed. We so conclude because "clearly erroneous" is the standard established by the Kansas Legislature, and followed by this court, for the specific situation when no jury instruction has been requested or given and no constitutional error has been alleged.

The KSC went on to apply this test and, because of discrepencies in testimony regarding the multiple acts, reversed:

We acknowledge that youthful victims reporting incidents, giving statements, and testifying cannot provide mathematical certainty about events. We also acknowledge, however, the substantial prejudice to a defendant when the equivalent of evidence of propensity to commit crime–more multiple acts than charges, without an election or instruction–is placed before a jury. Accordingly, instead of prosecutors relying upon appellate courts to essentially use the victims' youth-caused inconsistencies as a basis for finding the error harmless, we continue to conclude that the better solution is for the State to elect or for the trial court to instruct on unanimity in multiple acts cases–as we have clearly required since at least 2001. Because we are firmly convinced that under these facts there is a real possibility the jury would have returned a different verdict if the unanimity instruction had been given, we reverse and remand to the district court for a new trial.

This case provides a nice primer on the history of unanimity cases in Kansas. I really can't understand why district judges don't give a unanimity instruction in every case--it wouldn't hurt in a single act case and would absolutely prevent reversals of convictions. In any case, defense practitioners should be requesting a unanimity instruction in every case!

On June 25, 2007, the KSC ordered the parties to respond to whether Voyles was controlling on another unanimity case that was on PR. So it looks like this case will have some immediate impact.

Child's statements testimonial

Roger Falk and Christopher Hughes won in State v. Henderson, No. 92,251 (Kan. June 22, 2007), reversing a Sedgwick County agg indecent liberties conviction on Confrontation Clause grounds. The KSC reviewed lots of other jurisdictions' cases to determine that where a child's statements are taken in part for the purpose of a criminal investigation, they are testimonial and subject to confrontation. The KSC took a rather detailed factual approach and determined that because of the involvement of law enforcement officers and the manner of investigation, the statements were testimonial:

While a focus on Henderson does not itself conclusively prove that the primary purpose of the interview was to establish or prove past events potentially relevant to a later criminal prosecution of him, it is certainly a factor to consider in making that determination. At a minimum, the focus on Henderson dilutes the State's arguments. We also consider that, among other things, F.J.I. was being asked to recount past episodes of criminal activity involving Henderson. Davis v. Washington, ___ U.S. ___, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), held that Crawford's and Hammond's "statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony because they do precisely what a witness does on direct examination; they are inherently testimonial." 165 L. Ed. 2d at 242.

This focus on Henderson, specifically with an eye toward prosecuting him, is corroborated by events after the interview. Cherney attempted to reach Henderson but was unsuccessful for 8 months. During that time, neither he nor Chandler attempted to interview anyone else or locate other possible perpetrators, whether pursuing the information given by Mother's interview or otherwise. Indeed, before even interviewing Henderson, Cherney prepared and signed his affidavit that asserted he had probable cause to believe Henderson committed the offense.

In addition to the facts we have already outlined as comprising part of our testimonial analysis, we also consider that Cherney and Chandler are government employees. While Chandler, the main interviewer, was an SRS employee, she could be considered an agent of law enforcement.

Also importantly, the KSC rejected the state's attempt to sort of have autghomatic invocation of the "forfeiture by wrongdoing" doctrine in molestation cases:

the Court of Appeals stated: "The State cites no case to us where the doctrine of forfeiture has been applied solely due to the declarant's age." The State asserts, however, that the absence of case law should not lead to a contrary result because "[t]he same equitable factors underlying the use of the doctrine in murder cases is present in this case and other cases involving helpless victims with limited communication skills." We agree with the Court of Appeals. The State's argument would severely undercut the constitutional rights provided by the Confrontation Clause.

There is a lot of Confrontation Clause litigation and these are just a couple of many issues that are percolating after Crawford. Don't forget to preserve these issues.

Is that an RPG in your pocket or are you just glad to see me?

Rick Kittel won in State v. Wilson, No. 96,507 (Kan. App. June 15, 2007)(unpublished), reversing a Leavenworth County drug conviction. It is really one of the funniest reads in a case I've seen in a while. Police were checking Mr. Wilson's sister's apartment looking for a runaway who was Mr. Wilson's girlfriend. When officers approached the front door, back up officers saw Mr. Wilson leaving a back window, but he could not get down and ended up asking the officer for help. The officer put Mr. Wilson in handcuffs, escorted him to the front of the residence and patted him down. He did not find a weapon, but found some drugs. To put it mildly, the COA was skeptical of the state's purported jusification for the pat down:

[The officer] was not at [the apartment] to apprehend a violent criminal. [The officer] testified that Wilson was very cooperative throughout the encounter. [The officer] expressed no reason for suspecting Wilson had a weapon other than the following: "Just leaving the window, Judge." Rather than questioning Wilson regarding the whereabouts of [the runaway, the officer] asked Wilson if he had any drugs or weapons on his person. When the court inquired about this, [the officer] responded: "It's just procedure, Judge. As far as for officer safety, I always ask if they have drugs, weapons, hand grenades, RPG's [rocket-propelled grenades], items like that."

At the time of [the officer's] interrogation, the apparently meek and cooperative Wilson had his hands handcuffed behind his back. How Wilson presented a possible threat to [the officer's] safety remains a puzzle. In the unlikely event Wilson had secreted a rocket-propelled grenade on his person, we finding hard to believe he could have activated it to harm [the officer]. The purpose of the pat-down search authorized by Terry is to identify and remove weapons that may be used against the officer, not to search for evidence.

I guess Fort Leavenworth is in Leavenworth County. Maybe local law enforcement have to routinely deal with things like rocket-propelled grenades? A very funny opinion.

[Update: the state did not file a PR and the mandate issued on July 19, 2007].

Protective sweep only applies if incident to lawful arrest

Matt Edge won in State v. Cabral, No. 96,379 (Kan. App. June 15, 2007) (unpublished), reversing a Reno County drug conviction. The COA agreed with Mr. Cabral that, although officers had consent to enter the apartment, the consent was limited and did not allow a general search of the apartment. The COA disagreed with the state and the district court that the officer was entitled to conduct a protective sweep, which the KSC has held must be incident to arrest. The state also argued that the smell of marijuana provided justification for the broad search. The COA agreed that smell of marijuana provided probable cause of a crime, but followed prior KSC cases holding that the smell of marijuna, by itself, does not provide exigent circumstances justifying a warrantless search:

[The officer] expressed no concern that the occupants of the apartment would destroy evidence if he had to leave and obtain a search warrant. To the contrary, he testified that his search of the apartment was not for the marijuana he smelled, stating: "I was looking for people." This was the State's position in summation: "The officer is clearly looking for people and not evidence." Without facts to establish exigent circumstances, the State fails to justify its warrantless search of the apartment.

Another win for the Fourth Amendment!

[Update: the state did not file a PR and the mandate issued on July 19, 2007].

A hunch is not enough!

Ron Lyon won in State v. Montes-Mata, No. 97,155 (Kan. App. March 30, 2007) (unpublished), affirming Judge Wheeler's suppression order in a Lyon County drug prosecution. The COA framed the issue as follows:

We must determine if it is proper for a driver and passenger to be arrested and returned 30 miles based upon the hunch of a trooper that the car the defendant was driving was acting as a decoy for a vehicle that was transporting marijuana.

The issue pretty easily leads to the conclusion that the extended detention was illegal and that the officer did not have probable cause until long after the detention became illegal. As a result, the COA affirmed the suppression order.

[Update: the state did not file a PR and the mandate issued on May 3, 2007].

Possession, by itself, is not 9/10 of theft

Timothy A. Short won in State v. Roberts, No. 97,117 (Kan. App. May 18, 2007) (unpublished), affirming Judge Wachter's dismissal of felony theft at preliminary hearing. Mr. Roberts was found in possession of a stolen Jeep. But Mr. Roberts was able to explain his possession without contraciction and the COA held that such a situation does not support a finding of probable cause that Mr. Roberts stole the Jeep"

Generally, possession of stolen property establishes a prima facie case sufficient to warrant a theft conviction. State v. Peterson, 198 Kan. 239, 240, 424 P.2d 552 (1967). However, “[i]t is not the mere possession but the unexplained possession of stolen goods that warrants the inference of guilt.” (Emphasis added .) Roberts' possession was not unexplained. He provided a reasonable explanation of how he came to acquire the Jeep. There was no direct evidence that Roberts stole the jeep or knew it was stolen when he acquired it. Nobody saw Roberts with the Jeep until at least 3 months after it was stolen. The longer the interlude between a theft and evidence of the defendant's possession of the stolen goods, the greater the need for additional evidence beyond mere possession. . . .

The only evidence supporting the charge of theft was Roberts' possession of the Jeep 3 months after it was taken. When considering the uncontradicted testimony regarding the circumstances under which Roberts acquired the Jeep and the great deference we give trial courts in considering these matters, the district court did not err in finding that the fact of Roberts' possession of the Jeep, with nothing more, would not cause a person of ordinary prudence to reasonably believe Roberts committed the crime.

Odd case for the state to choose to appeal.

[Update: the state did not file a PR and the mandate issued on June 21, 2007].

No reason for frisk

Michelle Davis won in State v. Burton, No. 95,970 (Kan. App. June 8, 2007), reversing a Sedgwick County possession prosecution. The officer testified that he did always frisked stopped persons for his safety. The COA easily found that this violated the Fourth Amendment:

Burton argues that [the officer's] testimony indicates that he always pats down an individual for his safety. Thus, Burton maintains that [the officer's] conducted an impermissible general, cursory search for weapons. Burton cites Ybarra v. Illinois, 444 U.S. 85, 93-94, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979), for the proposition that "[n]othing in Terry can be understood to allow a generalized 'cursory search for weapons' [as the officers admittedly did in Ybarra's case] or, indeed, any search whatever for anything but weapons."

In conducting a Terry frisk, "the officer must have prior knowledge of facts or observe conduct of the person or receive responses to the limited interrogation authorized by [K.S.A. 22-2402(1)] which, in the light of his experience, would cause the officer to reasonably suspect that his personal safety requires such search." (Emphasis added.) [The officer] admittedly did not observe any conduct by Burton or the female that would have caused him to reasonably suspect a weapons frisk was necessary for his personal safety, and he had not yet conducted any limited interrogation of Burton concerning the disturbance.

To illustrate, near the scene of the reported disturbance, [the officer] saw Burton and a female walking just east of Broadway on Indianapolis. When [the officer] stopped them, he did not have any details about the disturbance or whether the disturbance involved any criminal activity. Moreover, the record of the dispatch indicated that the disturbance involved no injuries or weapons.

Although the trial court stated that the area of the disturbance was a high crime area, [the officer] failed to testify that the area was a high crime area. Significantly, the circumstances surrounding [the officer's] previous experience with Burton was not developed during the suppression hearing. An officer's previous encounter or experience with a suspect is often helpful in determining whether a frisk is necessary. For example, an officer's previous knowledge about a suspect may bring to light that the suspect is wanted for other offenses or that the suspect has a record for violence or a mental disorder. Nevertheless, [the officer] did not state that his prior experience with Burton caused him to suspect that Burton was armed and dangerous.

The state tried to argue that the inculpatory evidence was not actually found during the pat-down, but the COA held that because the officer asked Mr. Burton about drugs during the time of the illegal pat down, the drugs were fruit of the poisonous tree.

What a candid officer. I suspect this case is somewhat fact-specific, and the product of a poorly litigated suppression motion by the state, but still a nice case.

[Update: the state did not file a PR and the mandate issued on July 12, 2007].

Speedy trial dismissal in corruption case

A Kansas City Star article reported that Ed Gillette won dismissal of charges in State v. Vaughn, ending a Wyandotte County misdemeanor prosecution related to an alleged ticket-fixing scandal. Mr. Vaughn was the police chief of Edwardsville. Judge Lyle dismissed the charges based on a statutory speedy trial violation. The article reports that the state has already filed a notice of appeal.

[Note: the link to the Kansas City Star article has expired.]