Parental discipline a common law defense in Kansas

David Magariel won in State v. Wade, No. 102,433 (December 30, 2010), reversing a Johnson County conviction for misdemeanor battery. The COA held that parental discipline is a common law affirmative defense in Kansas. The COA reversed the defendant's conviction because the district court's failure to instruct the jury on this affirmative defense denied the defendant due process of the law.

 

The COA reversed Wade's conviction even though the affirmative defense instruction offered by Wade's trial counsel was legally incorrect. The COA held that the district court had a duty to correctly instruct the jury on the defendant's theory of defense. It  then explained that the affirmative defense of parental discipline is based on an objective standard:

It is a defense to the charge of battery if a parent's use of physical force upon a child was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline.

Overall, a very good opinion. It is nice to see the court recognize that there are more affirmative defenses than those set forth by the legislature.

Another downward departure upheld

Janine Cox won in State v. Craver, No. 103,048 (Kan. App. December 10, 2010)(unpublished), affirming Judge Chamber's imposition of a downward dispositional departure in three drug cases. The COA seemed somewhat unimpressed with the state's argument on appeal:

On appeal, the State only challenges the district court's first reason for the dispositional departure, i.e. that Craver was not the ringleader and did not participate in the planning of the drug manufacture. The "argument and authority" section of the State's brief is three pages in length. The thrust of the State's argument is that the district court erred by granting Craver a departure on the ground that she played a minor role in the crimes for which she was convicted. Although the State's brief contains a passing reference to Craver being a long-time drug addict, the brief contains no argument that Craver's drug problem is not a substantial and compelling reason for departure. An issue not briefed by the appellant is deemed waived and abandoned.

. . . .

Generally, when the district court offers two independent bases for its judgment, the appellant's failure to address an alternative basis for the district court's decision is a sufficient reason to deny an appeal. Because the State does not challenge the district court's alternative basis for granting Craver a dispositional departure, i.e. that Craver has a severe drug problem, this is sufficient reason to deny the State's appeal.

The COA went on, though, to hold that Judge Chambers' uniquely tailored sentence for Ms. Craver was supported by the record and was "consistent with the principles underlying the [Kansas Sentencing Guidelines Act.]"

[Update: the state did not file a PR and the mandate issued on January 13, 2011.]

Acquittal in Reno County murder case

A Hutch News article reports that Alice Osburn won an acquittal on first-degree murder charges in State v. Delacruz. The article reports that the jury convicted Mr. Delacruz of an unrelated agg robbery.

Huff named judge in Douglas County

Here is an article from the LJWorld stating that Barbara Kay Huff will be the newest judge in Douglas County. Kay has been a criminal defense lawyer for a number of years, including stops at the Johnson County PD's Office, the Appellate Defender Office, and as a Clinical Professor at KU Law. According to the article, Kay has been in private practice in Lawrence since 1991. She will replace Judge Jean Shepherd, who is retiring in January.

I have gotten to know Kay over the last year, as her office is three doors down from mine. I can whole-heartedly say that I expect her to be an excellent judge. She is wicked smart, and she is very dedicated to the law. Congratulations, Kay.

New Hampshire has a state constitution

The New Hampshire Supreme Court held in State v. Boutin, No. 2008-813 (N.H. 11/24/2010), that its state constitution puts specific restrictions on officers conducting community caretaking stops:

The defendant argues that the seizure violated his rights under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the Federal Constitution. We consider his arguments first under the State Constitution, using federal cases only to aid in our analysis. See State v. Sawyer, 147 N.H. 191, 193 (2001). Part I, Article 19 of the New Hampshire Constitution provides that every citizen has “a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”

. . . .

In this case, the officer testified that he approached Boutin’s vehicle, “[j]ust to see if everything – if anything was wrong, make sure everything was okay.” He testified that he could not tell if there was an accident, if the vehicle was abandoned or if any occupants may have needed assistance or had health concerns. He also observed that Boutin’s vehicle was pulled off to the side of the road, but facing the wrong way. As in Boyle, while the officer may have had generalized concerns about the vehicle and its potential occupants, he did not describe any specific and articulable facts that justified the intrusion of Boutin’s protected interests. Boutin’s car was parked legally in a pull-off area and the officer did not observe any obvious signs of an accident, that the car was disabled, or that the passengers were in any type of distress. In short, the officer’s concerns amounted to little more than a hunch. While the officer testified that he was concerned in part because it was dark and snow covered the ground, “[w]inters are traditionally long in [New Hampshire], and we cannot adhere to a theory that essentially renders [Part I, Article 19] protections seasonal.”

Because we conclude that Boutin prevails under the State Constitution, we need not reach the federal issue.

This seems to me to be the right method of analysis. First, consider the claim independently under the state constitution. If necessary, consider the claim under the federal constitution. It's the only way to really show any fealty to the state constitution.

January 2011 KSC docket

Here are the criminal cases on the KSC docket for January 24-28, 2011. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details.

January 24--Monday--a.m.

State v. William Bennington, No. 98,656 (Sedgwick)
Direct appeal (petition for review); Rape
Rachel L. Pickering
[Affd/Rvd/Rmd; Luckert; Oct. 28, 2011]

• Improper admission of hearsay statements
• Prosecutorial misconduct

State v. Eric Huerta, No. 101,438 (Sedgwick)
Sentencing appeal (petition for review)
Richard Ney
[Dismissal of appeal affirmed; Beier; March 18, 2011]

• Introduction of false information at sentencing
• Improper imposition of harsher sentence than more culpable co-defendant
• Improper comment on right to silence at sentencing

State v. Elgin Robinson, No. 101,657 (Sedgwick)
Direct appeal; Capital murder (life sentence imposed)
Reid T. Nelson
[Affirmed; Moritz; March 2, 2012]

• Improper search of computer (defective warrant)
• Failure to suppress coerced statements
• Improper admission of hearsay statements
• Gruesome photographs
• Failure to change judge
• Improper presumption of intent instruction

State v. Theodore Burnett, No. 100,854 (Sedgwick)
Direct appeal; Capital murder (life sentence imposed)
Sarah Ellen Johnson
[Affirmed; Moritz; Feb. 10, 2012]

• Improper jury verdict forms
• Prosecutorial misconduct
• Gruesome photographs
• Improper deadlocked jury instruction (Salts)

January 25--Tuesday--a.m.

State v. Randy Chavez, No. 103,168 (Sedgwick)
Sentencing appeal (Jessica's Law)
Rachel L. Pickering
[Aff'd/Vac'd; Rosen; July 15, 2011]

• Improper imposition of hard-25
• Improper imposition of lifetime electronic monitoring
• Failure to grant downward departure

State v. Will Wimbley, No. 101,595 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Will Wimbley, pro se (brief); Roger L. Falk (argue)
[Rmd to COA; Johnson; Nov. 23, 2011]

• Ineffective assistance of trial counsel

State v. Rashawn Anderson, No. 99,123 (Douglas)
Direct appeal (petition for review); Second-degree murder
Carl Folsom III (brief), Shawn E. Minihan (argue)
[Affirmed; Biles; May 11, 2012]

• Proseutorial misconduct
• Improper eyewitness identification instruction
• No waiver of right to testify on record

January 26--Wednesday--a.m.

State v. Derrick Freeman, No. 100,792 (Leavenworth)
Motion to withdraw plea (petition for review)
Michael G. Highland
[Vac'd/Rmd; Nuss; April 1, 2011]

• Improper denial of motion to withdraw plea

State v. Thomas Kelley, No. 100,913 (Shawnee)
Motion to withdraw plea
Patrick H. Dunn
[Affirmed; Johnson; March 25, 2011]

• Conflict of trial counsel on motion to withdraw plea
• Improper denial of motion to withdraw plea

State v. Clifford O'Rear, No. 99,487 (Wyandotte)
Direct appeal (petition for review); Agg battery
Lydia Krebs
[Reversed; per curiam; Feb. 17, 2012]

• Insufficient evidence of recklessness
• Prosecutorial misconduct
• Juror misconduct

January 27--Thursday--a.m. (Old Kansas Supreme Courtroom)

State v. Kevin Hernandez, No. 101,837 (Riley)
Direct appeal; First-degree murder
Matthew J. Edge
[Affirmed; Rosen; July 29, 2011]

• Prosecutorial misconduct
• Failure to give voluntary intoxication instruction
• Improper sentencing (identical offense doctrine)

January 28--Friday--a.m.

State v. Jerry Sellers, No. 101,208 (Harvey)
Direct appeal; Agg indecent liberties (Jessica's Law)
Michelle Davis
[Aff'd/Vac'd; Beier; April 22, 2011]

• Failure to order evaluation of complaining witness
• Multiplicity
• Lifetime postrelease is cruel and unusual punishment

State v. Eric Neal, No. 100,366 (Sedgwick)
Motion to correct illegal sentence (petition for review)
Michael P. Whalen
[Rvd/Rmd; Nuss; Aug. 5, 2011]

• Improper finding that claim re: uncounsel misdemeanors is precluded

Craig Fischer v. State, No. 100,248 (Hamilton)
K.S.A. 60-1507 appeal (petition for review)
Michelle Davis

• Denial of right to be present at evidentiary hearing

Suppression order

Sal Intagliata won a suppression order in State v. Holton, a Sedgwick County murder prosecution. According to a Wichita Eagle article, Judge Kaufman held that officers illegally entered a residence without a warrant or consent. Judge Kaufman also suppressed several statements taken from Holton later.

Local blawg in ABA Journal top 100

Glad to see Ron Sylvester and his blawg What the Judge Ate for Breakfast was included in this year's ABA Journal top 100 blawgs list. I have always thought Ron's coverage of the crime and courts beat was pretty fair and balanced and a lot of the Common Law video series have helped persons outside the court system see a little of what actually goes on behind the scenes, both in the courtroom and in the prison system. Just good journalism. Vote for What the Judge Ate for Breakfast for best blawg! Just follow the link on the ABA page! (All the cool kids are!)

Cannot "routinely" pat down without articulable safety concern

Michael Redmon won in State v. White, 103,472 (Kan. App. Nov. 12, 2010), reversing a Wyandotte County drug prosecution based on a Fourth Amendment violation. The COA held that an officer had improperly extended a traffic stop and then considered the validity of a pat down (where an officer found incriminating evidence):

White argues that the officer-safety pat-down, sometimes called a frisk, was an illegal search and all the evidence found as a result of that search should have been suppressed. Specifically, White argues that James had no reasonable suspicion that White was armed and dangerous or that James' safety or the safety of others might have been in jeopardy.

The State maintains again that the encounter was consensual and, therefore, a Terry analysis is unnecessary. As discussed above, however, the State failed to prove the encounter became voluntary. The State further argues that "the officers, by their testimony demonstrated that they were acting as reasonably prudent men in the circumstances" when James conducted the pat-down.

To restate the pertinent facts, James arrived on the scene without being dispatched and saw Bell talking to White. White then stepped out of his car and walked toward James, who was standing near the rear bumper of White's car. White appeared to be cooperating fully with the investigation. At that point, James performed the pat-down.

James did not engage in any conversation with White before performing the pat-down, nor did he recognize White from a previous encounter. When asked why he performed the pat-down, James testified, "It's officer safety. That's just what I've done since I started out here. Just make sure nobody has weapons on them when I'm talking to them." James did not provide any further explanation for the pat-down. During cross-examination, James acknowledged that he "routinely" performs a pat-down in every traffic stop where a person is asked to step out of the car.

. . . .

We recognize that law enforcement officers have dangerous jobs, and traffic stops are especially perilous. As a result, officers must be allowed to take reasonable steps to protect their safety and the safety of others. Courts will uphold a pat-down for officer safety as long as the officer articulates any reasonable suspicion that the officer's personal safety requires it. But a law enforcement officer cannot "routinely" perform a pat-down every time the officer personally encounters a citizen and expect the courts to sanction such a blatant constitutional violation.

The COA shows how easy it is for law enforcement to both extend a stop and conduct a pat down under existing law. But the COA properly says if law enforcement doesn't even take those easy and basic steps, it constitutes a "blatant constitutional violation."

[Update: the state did not file a PR and the mandate issued on December 20, 2010.]

Another upward durational departure set aside

Heather Cessna and Sarah Morrison won in State v. Duncan, No. 99,463 (Kan. Nov. 19, 2010), reversing imposition of an upward durational departure sentence in a Sedgwick County aggravated battery prosecution. Mr. Duncan had pleaded guilty to severity level seven agg battery, including a joint recommendation for an upward durational departure sentence, which the district court imposed. After probation revocation, Mr. Duncan challenged the departure sentence based on failure to validly waive his right to have a jury find aggravating factors beyond a reasonable doubt. The KSC agreed:

In other contexts, we have held that to be constitutionally valid, a waiver of rights in guilty or no contest pleas must be voluntary, knowing, and intelligent acts performed with sufficient knowledge of the relevant circumstances and likely consequences. Recently, this court held that to satisfy the Due Process Clause a waiver must be an intentional abandonment or relinquishment of a known right or privilege. State v. Copes, 290 Kan. 209, 218, 224 P.3d 571 (2010). As such, to waive the right to a jury in an upward durational departure proceeding, the defendant must do more than consent to the sentence. Duncan needed to understand—and the record needs to demonstrate—what specific right or rights he was waiving. An examination of the plea hearing proceedings relied upon by the Court of Appeals, as well as the written plea agreement, are required to determine whether the waiver satisfied these criteria.

At the plea hearing, the district court informed Duncan he was relinquishing his right to a trial on his guilt, his right to raise any defenses to the charge, his right to have the State prove each offense, his right to compel and cross-examine witness testimony, and his right to testify in his own defense. Regarding sentencing, the district court informed him of the potential range of sentences that could be imposed and that the court was not bound by the plea agreement and could impose any legal sentence deemed appropriate. But the district court did not advise Duncan that he had a right to a jury determination of the aggravating sentencing factors.

Similarly, the written plea agreement only informed Duncan of his right to have his guilt or innocence determined by a jury and the requirement that the State prove his guilt beyond a reasonable doubt on each element of the charge. Neither of these provisions informed Duncan he had a right to a jury determination of the aggravating sentencing factors. Indeed, under even the most generous reading of the plea agreement, at best, suggests it is ambiguous as to whether the defendant was waiving both the jury determination of guilt and the jury determination of aggravating factors. But if we were to find such ambiguity, it would not matter. This court interprets plea agreements under the same standard applied to ambiguous statutes, so that any uncertain language is strictly construed in the defendant's favor. Under this standard, the plea agreement's language would not be enough to constitute a waiver as written.

I hope the KSC will apply this same kind of scrutiny to other waiver situations as well.

Iowa Supreme Court invalidates fee-cap for appeals

Hat tip to Law of Criminal Defense for posting on an Iowa Supreme Court case, Simmons v. State Public Defender, 791 N.W.2d 69 (Iowa 2010), holding that a fee cap of $1500 per appeal for criminal defense appeals is unconstitutional under a structural ineffective assistance of counsel approach. The opinion does a nice job of relating some of the economic realities of persons who do this kind of work and explaining the impact of these realities:

First, we examine what the fee cap would mean for a full-time attorney providing representation in criminal appeals. Under the NLADA standards, a lawyer who handles appeals should limit his or her workload to twenty-five appeals per year. Standards for the Defense, Standard 13.12. Under this standard, a full-time lawyer working pursuant to the appellate defender‘s rule could receive a gross income of $40,000. From this figure, the attorney must pay for overhead which, according to the Iowa State Bar Association survey offered into evidence in this case, was, for the average Iowa lawyer, in excess of $70,000. Even assuming that a criminal defense lawyer working on appeals would have less overhead than the average Iowa lawyer, it seems clear that it would be very difficult for a lawyer working under the state public defender‘s rule to earn a living.

Second, we look at this case by considering the hourly rate paid to Simmons for what the record establishes were reasonable and necessary services. His hourly rates for the cases amount to $12.56 for Millam‘s appeal and $12.27 for Cromer‘s appeal. Over the long run, payment of such hourly rates to appellate counsel will have a chilling effect on qualified lawyers taking this work and would discourage thorough appellate preparation.

Third, we use our own expertise in considering the impact of a $1500 fee cap for appellate work. No one can dispute that competent appellate representation requires thorough mastery of the underlying facts, communications with the client, research into applicable legal issues, consideration of which issues to present on appeal, and then careful writing and rewriting. A hard-fee cap of $1500 simply cannot provide adequate compensation in many cases, including the two cases at issue here.

The implications of the inadequate compensation framework on the provision of effective assistance of appellate counsel are multiple. First, inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants. Second, the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. Low compensation pits a lawyer‘s economic interest (recall Lincoln‘s metaphor that a lawyer‘s time is his stock in trade) against the interest of the client in effective representation.

Economic times are tough for state governments, but they cannot choose to prosecute without adequately (not just minimally) funding the defense. If state governments want to reduce their indigent defense costs, they have to reduce the rate of prosecution/incarceration (or, as I've said before, at least the rate of prosecution/incarceration of poor people). It's that simple.

Downward departure upheld

Washburn student intern Jeffrey Dazey and I (and Patrick Dunn, who argued the case), won in State v. Liskey, No. 103,145 (Kan. App. Nov. 19, 2010)(unpublished), affirming Judge Leuenberger's imposition of a downward durational and departure sentencing in a fairly high profile Shawnee County aggravated indecent liberties and criminal sodomy prosecution. Judge Leuenberger had found eleven substantial and compelling reasons for departure in this case. The COA considered two of the eleven --Ms. Liskey's mental impairment and the complaining witness' participation in the conduct--and held that they were supported by substantial competent evidence and were substantial and compelling reasons for departure. Because the COA only needed to find a single factor supported the departure, it did not need to analyze any of the remaining factors.

Here is coverage of the decision in the Topeka Capital-Journal. Here and here is pre-argument and argument coverage of the appellate case in the Topeka Capital-Journal.

[Update: the state did not file a PR and the mandate issued on December 23, 2010.]

Short list for COA

The Supreme Court Nominating Commission issued a press release announcing the nomination of municipal judge Karen Arnold-Burger, district judge Robert Fredrick, and KSC staff attorney Deborah Hughes for the vacancy on the COA to be created when Chief Judge Rulon retires in early January. Governor Parkinson has 60 days to select the new COA judge from this list. Another COA vacancy will be created by COA Judge Caplinger's recent appointment to the KSC, so the Nominating Commission will be at work again in the next few months, with Governor-elect Brownback making that appointment.

[Update: as blogged about here, the Governor appointed Judge Arnold-Burger to the Kansas Court of Appeals.]

The New Miranda warning

I thought this post on the Marquette University Law School faculty blog by Michael Cicchini nicely summed up recent SCOTUS Fifth and Sixth Amendment jurisprudence pretty well. In conformity with these cases, here is how we should be giving the familiar Miranda warning if we really want to be honest:

I first have to read you these rights before you tell me your side of the story, okay? First, you have the right to remain silent.

Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).

But if you choose to speak so that you can remain silent, you had better not be ambiguous. If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative. Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).

On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you. This is only fair. Florida v. Powell, 130 S. Ct. 1195 2010).

If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense. So, you might want to talk to me now so you don’t look guilty later. Jenkins v. Anderson, 447 U.S. 231 (1980).

But, anything you say to me can be used against you in court. (I’m not sure if this includes the things that you say in order to remain silent.)

You have the right to an attorney.

But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it. Don’t ask me, for example, “Could I get a lawyer?” This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you. However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).

If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line. Then you might be on your own.

And don’t say “I can’t afford a lawyer but is there any way I can get one?” As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.” The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?

Add to this recent jurisprudence cutting back on remedies when the police violate constitutional rights anyway despite all of these police-favorable cases and I wonder if the Bill of Rights matters any more (other than for people with money and people who want to bear arms).

KU Law to examine state constitutional law

Here is a news release that KU will host a symposium on state constitutional law this Friday November 12, 2010. Apparently there is up to 6.3 hours of free CLE available. Relevant topics include privacy rights, criminal procedure, search and seizure, and dual sovereignty.

Greene named Chief Judge

The Kansas Supreme Court issued a press release announcing that Richard Greene has been named by the KSC to succeed Gary Rulon as Chief Judge of the Kansas Court of Appeals.

New Mexico has a state constitution

In State v. Rivera, No. 31,656 (N.M. Oct. 19, 2010), the New Mexico Supreme Court recently considered the application of the private-search doctrine under the federal and state consitutuions:

In this case, a private citizen is alleged to have opened a sealed container that contained a toolbox holding several opaque bundles. The private citizen did not open any of the opaque bundles. When a law enforcement officer who was made aware of the private search obtained possession of the resealed container, he accompanied a second private citizen who re-opened the sealed container. The officer then cut open an opaque bundle to confirm his suspicion that it contained marijuana. The question is whether the officer violated either the Fourth Amendment of the United States Constitution or Article II, Section 10 of the New Mexico Constitution when he cut open the opaque bundles without a search warrant.

We have consistently interpreted the search and seizure provision of the New Mexico Constitution, however, as imposing a greater requirement for a warrant than its federal counterpart. Accordingly, under the New Mexico Constitution an officer must obtain a valid warrant from a neutral and detached judge to expand the private search absent an exception to the warrant requirement. N.M. Const. art. II § 10. Our approach encourages private citizens to assist police officers in the investigation of crimes, while faithfully safeguarding existing privacy interests as required by our constitution.

Because the officer in this case opened opaque bundles without a valid search warrant or an exception to the warrant requirement, the district court correctly suppressed the evidence.

The New Mexico Constitution, Article 2, Section 10 reads:

The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.

The Kansas Constitution, Bill of Rights, Section 15 reads:

The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.

December 2010 KSC docket

Here are the criminal cases on the KSC docket for December 6, 2010. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

December 6--Monday--a.m.

State v. Chester Roberts, No. 100,233 (Reno)
State appeal (petition for review)
Randall L. Hodgkinson
[Affirmed; Luckert; Sept. 2, 2011]

• Effect of pretrial dismissal on merits

Melvin Holmes v. State, No. 100,666 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
[Reversed; Nuss; June 10, 2011]

• Ineffective assistance of appelllate counsel

December 7--Tuesday--a.m.

State v. Robert Johnson, No. 98,812 (Wyandotte)
Direct appeal (petition for review); Possession
Ryan J. Eddinger
[Reversed; Schmisseur; Sept. 2, 2011]

• Fourth Amendment violation (improper stop)

December 8--Wednesday--a.m.

State v. Michael Tully, No. 92,764 (Johnson)
Direct appeal (petition for review); Rape
Bob Thomas (brief); Rebecca Kurz (argue)
[Rvd/Rmd; Luckert; Sept. 23, 2011]

• Improper cross-examination of right to remain silent
• Improper jury instruction on rape (re: amount of force)
• Improper expert testimony re: lack of evidence

State v. Brian Gilbert, No. 100,150 (Shawnee)
Direct appeal (petition for review); Possession
Nancy Ogle
[Dismissed; July 15, 2011]

• Fourth Amendment violation (standing and good faith exception)

State v. James Simmons, No. 98,770 (Crawford)
Direct appeal (petition for review); Rape
Shawn E. Minihan
[Reversed; Nuss; July 8, 2011]

• Prosecutorial misconduct

December 9--Thursday--a.m.

State v. Christopher Hall, No. 102,203 (Shawnee)
Direct appeal; First-degree murder
Nancy Ogle
[Affirmed; Beier; Aug. 12, 2011]

• Competency to enter guilty plea
• Failure to inform of maximum penalty

December 10--Friday--a.m.

State v. John Horton, No. 101,054 (Johnson)
Direct appeal; First-degree murder
Lydia Krebs
[Appeal stayed/remanded; Rosen; July 15, 2011]

• Improper coercive jury instruction (Salts)
• Improper refusal to reopen defense case for new evidence
• Improper admission of animated reconstrution video
• Improper exclusion of defense dog search evidence

State v. Jamil Fulton, No. 101,336 (Shawnee)
Direct appeal; First-degree murder
Jonathan B. Phelps
[Affirmed; Malone; Aug. 5, 2011]

• Insufficient evidence
• Failure to grant new trial (newly discovered evidence)
• Failure to sever co-defendants

State v. Patrick Naputi, No. 101,354 (Sedgwick)
Direct appeal; Agg indecent liberties
Michelle Davis
[Affd/Vacd/Rmd; Johnson; Sept. 2, 2011]

• Prosecutorial misconduct
• Denial of defense request re: jury nullification
• Improper order of lifetime electronic monitoring
• Lifetime postrelease is cruel and unusual

It's Justice Moritz

The Governor issued a press release announcing the appointment of Judge Nancy Moritz to the Kansas Supreme Court to fill the seat of Chief Justice Davis, who passed away this last summer.

Here is coverage in the Topeka Capital-Journal.

A Richardson win

Randall Hodgkinson won in State v. Gordon, No. 102,386 (Kan. App. Oct. 22, 2010), obtaining a new trial in a Sedgwick County felony fleeing and eluding prosecution. The case was largely controlled by State v. Richardson (blogged about here), which made it clear that when a crime relies on a predicate felony (like felony fleeing and eluding relies on underlying "moving violations"), the district court must instruct the jurors on the elements of the underlying offenses and specify the alleged violations. The COA rejected the state's claim that Richardson could be distinguished:

The State's arguments ignore the essential holding of Richardson: regardless of the sufficiency or specificity of the evidence presented at trial, our appellate courts will not step into the shoes of the jury and convict a defendant of five moving violations of our choice. Here, like in Richardson, Instruction No. 7 did not specify which moving violations Gordon violated.

Similarly, the COA declined the state's invitation to apply harmless error analysis to this situation.

[Update: the state did not file a PR and the mandate issued on November 29, 2010.]

Kansas Defender applies for COA

Here is a Topeka Capital-Journal article stating that 17 Kansas lawyers have applied for the Court of Appeals position that will be created by the Jan. 10 retirement of Chief Judge Gary W. Rulon. As the article states, Randall Hodgkinson (of this blog) is one of the attorneys applying for the position.

The Supreme Court Nominating Commission will meet Nov. 11-12 to interview the candidates and narrow the field to three. Anyone with input on the candidates should contact the commission as soon as possible. Comments can be sent to Anne E. Burke, c/o Carol G. Green, Clerk of the Appellate Courts, 301 SW 10th Avenue, Topeka, Kansas, 66612.

[Update: here is the short list (not including Randall).

Statute means what it says

Janine Cox won in State v. Urban, No. 98,856 (Kan. Sept. 24, 2010), affirming Judge Bornholdt's dismissal of a Johnson County aggravated escape from custody prosecution. Ms. Urban was on bond and as a condition of bond, had to reside at the Johnson County Residential Center. According to the state, she left the Center without permission. The state charged Ms. Urban with aggravated escape from custody. Judge Bornholdt relied on K.S.A. 21-3809(b)(1), which states that "'Custody' does not include . . . constraint incidental to release on bail." The COA had held that the statute should not be construed to exclude the circumstances in the case from the definition of "custody." The KSC disagreed:

We depart from the panel on its first ground because it requires us to exceed our role when faced with a statute whose language is clear and unambiguous. As we have often stated, it is not the place of a court to look beyond such language for evidence of legislative intent. When a statute is plain, the court should not speculate as to the legislative intent behind it and should not read into the statute something not readily found in it. In this case, there was no need here to go beyond statutory interpretation to statutory construction, employing canons, or searching for clues in legislative history or other background considerations. The legislature's intent in choosing the words it used in the second exception in the second sentence of the statute is manifest. "Constraint" is a broad term; it may be more intrusive than detention or less. Bail has a specific meaning, but it includes a PR bond such as that posted by Urban. The "release" in the phrase "release on bail" is release from jail; required residence in a community corrections facility may not be total freedom, but it is still not jail.

We also disagree with the panel's second ground, the gloss it gives the phrase "incidental to." Although it is true that "incidental to" has developed a modern usage subtly differentiated from "incident to," both phrases imply that the preceding concept is subordinate in some way to the succeeding concept. The legislature's employment of "incidental" rather than "incident" does not necessarily trivialize "constraint" in a cosmic sense. It does not make "constraint" irrelevant, as "spectacle" does to "shopping" in Garner's exemplary sentence: "Inside a Niketown or REI store in Seattle, shopping seems incidental to the spectacle . . . ." Rather, it precisely conveys, just as "incident to" conveys, the relationship between constraint" and "release on bail." The relationship is dependence; the constraint arises out of the bail context.

Third, we are unpersuaded that there is anything unreasonable about an interpretation of the statutory language that makes every constraint incidental to release on bail ineligible for the label of "custody" under K.S.A. 21-3809(b)(1). This was the legislature's policy choice to make, and it made it. It is not so farfetched that we must recoil or darn its socks. The exception to custody for "constraint incidental to release on bail," in fact, is consistent with the overall legislative design that makes walking away from a community corrections facility while on bond a separate offense. If the legislature believes it has been misunderstood, we are confident that an appropriate amendment of the statutory language will follow publication of this opinion.

This decision is consistent with the KSC's recent trend to pretty strictly construe statutes according to their terms.

Three judges nominated for Kansas Supreme Court

A press release announced that COA judges Nancy Caplinger and Tom Malone and district judge Merlin Wheeler (from Emporia) were selected by the Supreme Court Nominating Commission and forwarded to the governor. Here is coverage in the Topeka Capital-Journal.

ADO's silver anniversary

From Joyce Black, ADO Administrative Specialist:

Once upon a time (August, 1985) there was a little office born from need and necessity. The office started out with two clerical staff and five attorneys. There were few computers, and lots of “yellow tablets” full of briefs and motions (yes – the clerical staff typed briefs from handwritten pages and a few from dictaphones).

As the office grew, more attorneys and staff were added to its ranks. The little office never lacked in great dedication by its constitute members; nor did it lack in clients. Some members left in anticipation of brighter futures (and some came back to the fold); some lasted all of one day or a couple months before they found this was not their “cup of tea.” And some have stayed for years (and years and years!). All of these members added to the character of the office.

Many processes have been added, deleted and changed: better and more efficient computers (and word processing pains), the development of a data base, file review had its day in the sun, a “sentencing unit” worked through hundreds of cases, contract attorneys helped ease the load, the addition of legal assistants, the break-off of two capital appeals offices, and docketing review to name a few. But one process has essentially remained the same – opening cases.

This little office has just reached a double milestone – don’t ask me for other numerical milestones since the data base does not contain all the office’s successes and failures during its existence. The Appellate Defender Office has just opened 25,000 cases and is 25 years old!

Joyce has been with the ADO since the beginning and is certainly one of the moving forces behind its success. Happy Anniversary, ADO!

The lonely Kansas Constitution

I was impressed and glad to see this month's copy of the Journal of the Kansas Association for Justice (September 2010) included an article by Daniel E. Monnat and Paige A. Nichols titled "The Loneliness of the Kansas Constitution." Here is an excerpt from the introduction:

Today the original handwritten, eight page document [the Kansas Constitution] lies safely in the archives of the Kansas State Historical Society. A single rotating page is displayed under glass in the Kansas Museum of History. And what has become of this document in the Kansas courts? With few exceptions, it appears to have been relegated to the archives there, as well. 

Over the past half-century, Kansas' state constitution has come to play second fiddle to the federal constitution in our courts. The rights that many free-staters died facedown in the mud to secure are rarely treated as sovereign rights independent of the federal constitution. Time and again the Kansas Supreme Court has acknowledged its authority "to interpret our Kansas Constitution in a manner different than the United States Constitution has been construed," and yet the Court has "not traditionally done so."

The article lays out the history and policy behind state constitutionalism and begins to teach how to raise a state constitutional claim in district court. So get a copy and read it. The KSC is right and wrong. It not only has the authority to independently interpret the state constitution. It has the duty to do so.

[Update: here is "Part II" written by Dan and Paige in the May 2011 KAJ journal regarding how to raise state constitutional arguments!]

October 2010 KSC docket

Here are the criminal cases on the KSC docket for October 25-29, 2010. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. 

October 25--Monday--a.m.

State v. Phouthavy Chanthaseng, No. 101,346 (Sedgwick)
Direct appeal; Agg Indecent Liberties (Jessica's Law)
Lydia Krebs
[Affirmed; Beier; Sept. 9, 2011]

• Insufficient evidence of age of defendant
• Improper exclusion of defense testimony
• Prosecutorial misconduct

State v. Andre Bailey, No. 101,785 (Sedgwick)
Direct appeal; Felony murder
Michael P. Whalen
[Affirmed; Rosen; July 15, 2011]

• Improper adult certification
• Improper instructions re felony murder and underlying felonies
• District court improperly forced witnesses to testify

State v. David Holman, No. 101,204 (Sedgwick)
Direct appeal; Agg indecent liberties (Jessica's Law)
Randall L. Hodgkinson
[Aff'd/Rv'd/Rmd; Buser; August 24, 2012]

• Improper bad acts evidence
• Improper exclusion of impeachment evidence
• Improper prevention of cross-examination of complaining witness
• Improper amendment of complaint
• Insufficient evidence of age of defendant

October 26--Tuesday--a.m.

State v. Taurus Adams, No. 101,432 (Wyandotte)
Direct appeal; First degree murder
Meryl Carver-Allmond
[Affirmed; Luckert; April 15, 2011]

• Prosecutorial misconduct
• Improper order of lesser-included offense instructions
• Improper instructions on intent and premeditation

State v. Charles Denmark-Wagner, No. 102,234 (Pratt)
Sentencing appeal
Heather Cessna
[Aff'd/Vac'd; Beier; August 12, 2011]

• Improper failure to allow withdrawal of plea

October 27--Wednesday--a.m.

State v. Calvin Brown, No. 100,881 (Wyandotte)
Direct appeal; Agg indecent liberties (Jessica's Law)
Matthew J. Edge
[Aff'd/Vac'd; Brazil; Jan. 7, 2011]

• Improper admission of prior consistent statements
• Failure to instruct on voluntary intoxication
• Improper deadlocked jury instruction before deliberations
• Failure to instruct jury on age of defendant

State v. John Meili, No. 101,810 (Saline)
Sentencing appeal
Carl Folsom, III
[Remanded (unpublished); Rosen; Dec. 10, 2010]

• Disproportionality of life sentence
• Failure to grant downward departure

State v. Terrance Kelly, No. 100,006 (Johnson)
Plea withdrawal appeal
Meryl Carver-Allmond
[Remanded; Biles; Dec. 10, 2010]

• Failure to allow withdrawal of plea

October 28--Thursday--a.m.

State v. Rolland Berreth, No. 99,937 (Butler)
Sentencing appeal (petition for review)
Michael P. Whalen
[Rvd/Rmd; Nuss; April 6, 2012]

• Jurisdiction to resentence after Court of Appeals mandate

October 29--Friday--a.m.

State v. James Malstrom, No. 101,604 (Reno)
Sentencing appeal
Carl Folsom, III (brief); Merly Carver-Allmond (argue)
[Vac'd/Rmd; Nuss; March 25, 2011]

• Improper calculation of severity level in Jessica's Law departure

State v. Anthony Divine, No. 102,907 (Montgomery)
Appeal from registration order
Sara S. Beezley
[Reversed; Johnson; Jan. 28, 2011]

• Registration requirement after expungement

State v. Phillip Cheatham, No. 95,800 (Shawnee)
Direct appeal; Captial murder
John Val Wachtel, Paul Oller
[Rvd/Rmd; Biles; Jan. 25, 2013]

• Ineffective assistance of counsel at guilt phase

New article on false confessions

Here is an article from the April, 2010 Stanford Law Review which highlights the phenomenon of false confessions and specifically shows how most false confessions include surprisingly rich, detailed, and accurate information. The article suggests reform to all facets of the criminal justice system in an effort to control the contamination of confessions by improper interrogation techniques.

Here is a recent NY Times piece that discusses this article as well as the case of Eddie Lowry (blogged about here), a man who falsely confessed to a Riley County rape and was later awarded a $7.5 million settlement for his wrongful incarceration.

Hat tip to Melanie Freeman-Johnson for bringing this article to my attention.

Lawsuit challenges judicial nomination process

An AP article that describes a lawsuit filed in federal court that seeks an injunction against the Supreme Court Nominating Commission from filling the vacancy on the Kansas Supreme Court. The lawsuit claims that Kansas employs an unconstitutional method for replacing judges, in part because it gives too much power to attorneys.

The current selection process is provided for in the Kansas Constitution, and it was specifically approved by Kansas voters in 1958. While it is very unlikely that a federal court is going to tell Kansas how to select its state judges, this lawsuit could create uncertainty in Kansas courts for some time if an injunction is granted.

[Update: here is a link to Judge Belot's decision denying a preliminary injunction stopping the judicial selection process.]

Article on defendant released after habeas win

A Wichita Eagle article reported on the recent release of Nathaniel Swenson after eleven years in prison. We blogged about the case about three years ago here, when Michael Whalen obtained a remand for evidentiary hearing in Mr. Swenson's habeas case. Then this spring, after the district court apparently denied relief, the COA reversed denial of relief and remanded for a new trial (blogged about here). And after additional delay, Judge Burgess discharged Mr. Swenson.

 

Congrats to Michael Whalen for his perseverance in this case.

Cumulative judicial and prosecutorial misconduct requires new trial in Jessica's Law case

Carl Folsom won in State v. Kemble, No. 100,824 (Kan. Sept. 3, 2010), obtaining a new trial in a Sedgwick County aggravated indecent liberties prosecution. The KSC reversed due to a combination of judicial misconduct and prosecutorial misconduct. The KSC reviewed the transcript in detail to evaluate the judge's interaction with a child witness. The court held that the judge at points was correctly controlling her courtroom, but eventually she egregiously crossed the line and was improperly bolstering a witness:

One can empathize with the frustration a trial judge might experience with a child witness who will not testify consistently with his or her prior statements, especially if the judge might perceive that the prosecutor's soft-spoken demeanor is impeding the search for the truth and precluding the just punishment of a perpetrator of the most despicable conduct in our society. Nevertheless, the judge cannot cross the line between being the impartial governor of the trial and being an advocate for the prosecution. The lines of demarcation separating the duties of each of the players in a criminal trial are sacrosanct, i.e., the prosecutor representing the people; the defense attorney representing the accused; the trial judge representing the interpreter of the law; and the jury representing the finder of facts. If any of those lines are crossed, the system that has held this nation in good stead for two and a quarter centuries has been compromised. Here, the trial judge crossed the line, not only refusing to follow the better practice of addressing the problem with counsel outside the jury's presence, but failing to exercise the appropriate caution in questioning a witness and making comments in front of the jury.

Defense counsel also objected to a statement by the prosecutor during closing argument that "He [Mr. Kimble] never said I was too drunk to remember until today." The KSC held that this was a Doyle violation:

The State attempts to characterize the closing argument statement as only referring to the "defendant's failure to mention his alleged intoxication when confronted by the victim's family in the immediate aftermath of the incident." Obviously, if defendant was asserting a voluntary intoxication defense, he would be saying that he was too drunk to form a specific intent to commit the crime. Yet, the State would expect the defendant to have sufficient cognitive ability to affirmatively assert, almost contemporaneously with the criminal act, that defendant was relying on the defense of voluntary intoxication, i.e., he was too drunk to know what he was doing, but not too drunk to assert his affirmative legal defenses. The argument is, at best, counterintuitive. Moreover, one of the family members was apparently able to discern Kemble's intoxication without the benefit of his declaration that he was intoxicated. 

More importantly, the State's argument does not comport with the actual statement used in closing argument. The statement was, "He never said I was too drunk to remember until today." (Emphasis added.) "Today" was the day of trial; not the immediate aftermath of the incident. The State's attempt to rewrite the statement on appeal is unavailing. The prosecutor committed a Doyle violation, which is clearly outside the permissible bounds of fair comment under the first step of our analysis.

The KSC noted that Doyle is a long established rule that every prosecutor should know. It also noted that the violation occurred in the prosecutor's PowerPoint presentation, showing planning and not a spur-of-the-moment error. In summary, the KSC held that the combination of the errors deprived Mr. Kimble of a fair trial:

Conceivably, reasonable people might differ in their assessment of whether either the judicial misconduct or the prosecutorial misconduct in this case, when viewed in isolation, requires reversal, i.e., whether the respective individual error was harmless. However, when the two errors are viewed together, the cumulative effect clearly denied Kemble his right to a fair trial. As noted above, that denial cannot be cured by declaring the evidence against the defendant to be overwhelming. Accordingly, we reverse Kemble's conviction and remand for a new trial.

Second win for Carl on Jessica's Law cases this summer.

  

Here is coverage on law.com (registration required).

No property interest in jail booking documents

Washburn student intern Joshua Mikkelsen and I won in State v. Rodriguez, No. 102,449 (Aug. 20, 2010)(unpublished), vacating a Seward County forgery conviction. The prosecution stemmed from Mr. Rodriguez allegedly signing jail intake documents with a false signature. In Kansas, forgery requires intent to defraud, which in turn requires "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." The COA agreed that a prior case, State v. Fisher, 24 Kan. App. 2d 103, 942 P.2d 49 (1997), held that although the state has an administrative interest in accurate fingerprint records, it does not constitute a property interest:

In sum, the State failed to establish it had a property interest that was harmed by Rodriguez' act of signing a false name to the booking documents; thus, the State failed to prove an essential element of forgery.

[Update: the state did not file a PR and the mandate issued September 23, 2010.]

Acquittal in Ford County

Steve Cott got acquittals this week in State v. Fulton, ending a Ford County kidnapping, rape, and aggravated sodomy prosecution.

IAC finding upheld

About two years ago, we blogged about Alice White and the Defender Project getting state habeas relief for a client after a fairly long and arduous process (detailed here). The Court of Appeals just affirmed the habeas grant in Saleem v. State, No. 101,629 (Kan. App. Aug. 27, 2010)(unpublished).

The state argued that defense counsel had made a strategic decision to allow admission of a videotape that included statements about other shootings. The COA held that the record amply supported Judge Leuenberger's findings:

The district court found that Saleem had met his burden and that [defense counsel] did not permit the videotape's admission as part of his trial strategy. The district court's findings are supported by [trial counsel's] testimony at the hearing, in which he candidly admitted his mistake and strongly denied that this failure was part of his trial "strategy."

Nevertheless, the State suggests [defense counsel's] decision to admit the videotape was a strategic decision intended to bolster Saleem's claim that he had acted in self-defense. While the state is correct that [defense counsel] allowed the admission of the videotaped interview for strategic reasons, this fact has no bearing on whether [defense counsel's] representation was constitutionally deficient for allowing the jury to hear the prejudicial statement contained within the videotape. Moreover, as the district court noted,"[i]t is preposterous to imagine any attorney . . . to advance prior bad acts of an alleged shooting as trial strategy in a murder case."

The COA went on to find that, especially in a case that focused on allegations of premeditation, the deficient performance was prejudicial and supported the district court's grant of a new trial.

[Update: the state filed a PR on September 23, 2010.] 

[Further update: the KSC denied the state's petition and the mandate issued on November 4, 2010.]

Thirteen apply for Kansas Supreme Court

A KSC press release stated that thirteen Kansas attorneys have applied for the vacancy on the Supreme Court that was created last month by the retirement of the late Chief Justice Robert Davis. The Supreme Court Nominating Commission will interview applicants for the position on September 27 and 28, so be sure to get any input on any of the applicants in as soon as possible.

Jessica's Law conviction reversed based on coercive police interview

Ryan Eddinger won in State v. Stone, No. 100,076 (Kan. Aug. 20, 2010), obtaining a new trial in a Sedgwick County “Jessica’s Law” prosecution. The KSC reversed Mr. Stone’s conviction for aggravated indecent liberties with a child, holding that a tape recording of the police interrogation of him should not have been admitted into evidence.

The KSC held that the detective's interviewing techniques rendered Mr. Stone’s statement inadmissible:

The detective's repeated insistence that the truth could only be the version told by the victim, combined with her unequivocal statements that there was semen on the victim's pajamas and her belief that the DNA in it would match Stone's, followed by statements to the effect that only confessing could keep him out of jail or affect the length of his jail term made the circumstances unduly coercive. Moreover, a close examination of the interrogation reveals that Stone did not volunteer facts but rather he adopted facts as they were suggested to him by the detective and as her insistence that he tell "the truth" became more adamant.

. . .

Another tactic used by Detective Mar involved minimizing the seriousness of the accusations against Stone and indicating that a confession would corroborate that he was not a child sex predator[.] 

. . . 

These statements cumulatively and strongly suggested to Stone that only confessing to the "truth" as the detective saw it would save him from being painted as a "preying pedophile" and, in turn, affect his sentence.

The KSC held that the cumulative effect of Detective Mar’s interviewing techniques rendered Mr. Stone’s statement inadmissible:

While any one of the circumstances surrounding this interrogation, standing alone—Stone's condition, Detective Mar's misleading statements about the semen on the pajama top, her statements that the length of his sentence could only be affected by his telling the "truth," the implications he would be viewed as a sexual predator unless he confessed—might not have led us to conclude Stone's statements were coerced, a review of the audio recording taking into account all of these circumstances, as the law requires, leads us to conclude as a matter of law that Stone's statements were not the product of his free and independent will and that it was error to admit them at trial.

Based on the improper admission of the statement into evidence, the KSC reversed Stone's convictions and remanded for a new trial.

Upward departure set aside

Jessica J. Travis won in State v. Horn, No. 97,872 (Kan. Aug. 20, 2010), vacating an upward durational departure sentenced imposed in a Johnson County sex offense prosecution. The state charged Mr. Horn with several sex offenses and also filed a motion alleging an aggravating factor that would support imposition of an upward durational departure sentence. Mr. Horn pleaded guilty to the charged offenses, but not to the aggravating factors. The district court held a jury proceeding on the aggravating factors, which the jury found true beyond a reasonable doubt. The district court then imposed the maximum upward durational departure sentence. The KSC held that the district court erred by holding the departure trial after Mr. Horn had waived his trial jury. In reaching this conclusion, the KSC had to "dissect" several sentencing statutes:

As Horn points out, K.S.A. 21-4718(b)(4) appears to contemplate the use of an existing trial jury in the separate departure sentence proceeding. The provision begins by declaring that a separate departure sentence proceeding "shall be conducted by the court before the trial jury as soon as practicable."

. . . .

The next sentence clarifies that the jury for the upward durational departure sentence proceeding may be waived in the same manner as provided for the waiver of the trial jury. Then, the last sentence of K.S.A. 21-4718(b)(4) provides explicit directions: "If the jury at the upward durational departure sentence proceeding has been waived or the trial jury has been waived, the upward durational departure sentence proceeding shall be conducted by the court." 

It is difficult to conceive of any language which would have made the provision any more clear and unambiguous that a defendant's waiver of his or her right to a jury trial on the issue of guilt mandates that the court, not a jury, will hear the evidence and make the factual findings on the existence of the asserted sentence-enhancing factor. The last two sentences of K.S.A. 21-4718(b)(4) separately refer to "the jury at the upward durational departure sentence proceeding" and "the trial jury." That express distinction only makes sense if "trial jury" was intended to mean a jury that is functioning to determine the defendant's guilt, as opposed to a jury that is performing a post-conviction function with respect to a departure.

. . . .

On appeal, the State has apparently now come to the same conclusion on the meaning of the statute. After emphasizing essentially the same statutory language in K.S.A. 21-4718(b)(4) as we have highlighted above, the State declares in its brief that "[t]he upward durational departure sentence proceeding should have been conducted before the court." However, the State argues that the use of a jury in this case does not require reversal because Horn invited the error and because Horn received more process than that to which he was due. While such arguments are seductive, the fact remains that the district court did not employ the explicit procedure for upward durational departure sentence proceedings mandated by the legislature. Although the specific holding in Kessler was that after the statutory procedure for imposing upward durational departure sentences was declared unconstitutional, the district court was left with no authority to impose such a sentence, the opinion also clarified that "[a] district court's authority to impose sentence is controlled by statute." Accordingly, the employment of a sentencing procedure which does not comply with the applicable statute must be deemed unauthorized and erroneous.

Furthermore, because Mr. Horn did not validly waive his right to a jury trial on the departure factors, the KSC holds that the remedy in this case is resentencing without a departure:

To summarize, if a defendant waives a trial jury by pleading guilty to the criminal offense and the district court has accepted the plea and the trial jury waiver, K.S.A. 21-4718(b)(4) directs that an upward durational departure sentence proceeding is to be conducted by the court, not a jury. However, if the defendant has not waived his or her right to a jury for the upward durational departure sentence proceeding, a court conducted departure proceeding violates the constitutional mandates of Apprendi and Gould. A waiver of the trial jury, standing alone, does not effectively waive the defendant's right to have a jury for the upward durational departure sentence proceeding.

Does this mean that if a defendant gets a reversal on an upward durational departure trial on evidentiary or instructional grounds, remedy is vacation of upward departure, not new trial? There were a lot of other issues raised related to the upward durational departure trial, but because the KSC had vacated the upward departure, it did not need to reach them.

Misconduct and ineffective assistance of counsel requires new trial

Michael Whalen won in In re Ontiberos, No. 100,362 (Kan. App. Aug. 27, 2010), obtaining a new trial in a Sedgwick County Sexually Violent Predator Act proceeding.

There is a lot in this decision, including recognition of a statutory right to effective assistance of counsel in a SVPA proceeding and procedural guidance for such a claim. The COA summarized the decision this way:

In the jury trial of this sexually violent predator case, the parties agreed to have many records available so the two experts could refer to them. The documents were not meant for jury consideration, and the court did not admit them into evidence but did preserve them for the appellate record. Contrary to this agreement, the State's attorney used the documents 12 times during the cross-examination of the respondent, Robert Ontiberos. By doing so, he made the content of some of the records available to the jury. Further, the State's attorney used a nonexistent prison disciplinary report involving a weapon to discredit the respondent. Respondent's court-appointed lawyer never objected to any of the State's actions. Our Supreme Court has ruled that for impeachment, it is highly improper for counsel to read or refer to the contents of written matters not in evidence. Based on the conduct of the State's attorney, combined with the inaction of Ontiberos's defense counsel, we hold Ontiberos did not receive a fair trial. We reverse and remand for a new trial.

The COA had especially harsh words for the prosecutor's use of non-existent reports as a trial tactic:

The State's use of a nonexistent Department of Corrections disciplinary finding, ostensibly painting Ontiberos as being violent because it involved a homemade prison shank, cannot be condoned in any fashion. Simply put, attorneys are not allowed to make up evidence and use it to advance their cause. Even though our rules of evidence provide that all relevant evidence is admissible, the evidence must be real. We can fathom no greater prejudice to a respondent than the use of nonexistent evidence by the State in the case against the respondent.

[Update: coverage in the Wichita Eagle notied that the prosecution looked further and found the evidence that was suggested at trial in the file. As a result, the prosecutor sought to rehear the case, at least with regard to the comments about the prosecutor. The article suggests that Michael Whalen is not opposed.]

[Further update: even later coverage in the Wichita Eagle reported that the COA withdrew its original opinion and has set additional argument.]

[Further update: after granting the state's PR, the KSC reversed and remanded the case for a new trial on August 17, 2012, blogged about here.]

Possible change to elected district judges in NE Kansas

A Leavenworth Times article reports that the judicial selection method will be up for decision for district judges in the First Judicial District (covering Leavenworth and Atchison Counties). They currently have a nonpartisan selection method, but a petition has been submitted to change to partisan election. This has come up a couple of times in recent years in Shawnee County and failed. I wonder what the last switch was?

Washington has a state constitution

In State v. Tibbles, No. 80308-1 (Wash. Aug. 5, 2010), the Washington Supreme Court held that the exigent circumstances doctrine didn't apply to a warrantless car search under its state constitution. The circumstances routinely occur in Kansas--officers stop a car and smell marijuana. Courts, including the Tibbles Court, hold that this constitutes probable cause. But the remaining question is whether there are exigent circumstances to dispense with the warrant requirement:

Considering the relevant factors in determining an exigency, the State has not shown that exigent circumstances justified the warrantless search of Tibbles's car. The situation in this case stands in sharp contrast to other situations in which we have held exigent circumstances to exist. In Patterson, we concluded that exigent circumstances justified entry into a parked vehicle where a burglary had very recently been committed, the suspect was likely in the immediate vicinity of the vehicle because the officers discovered the vehicle a mere five minutes after the robbery, information in the automobile could help identify and locate the suspect, and a delay in searching the vehicle could have allowed the suspect to flee the area. Similarly, we found exigencies in Smith where there was a tanker truck filled with 1,000 gallons of a dangerous chemical parked next to a house, a rifle had been seen in the house, the rifle went missing, and the two known occupants of the house did not possess the rifle. 

On the stipulated facts in this case, the State has not shown any need for particular haste. The suspect was not fleeing, nor has there been any showing that he presented a risk of flight. While there was probable cause that evidence of contraband existed in the vehicle, Tibbles was outside the vehicle when Trooper Larsen searched it and the State has not established that the destruction of evidence was imminent. Additionally, the State has not established that obtaining a warrant was otherwise impracticable. For example, we do not know whether Larsen could have used a cell phone or radio to procure a telephonic warrant or whether he could have called backup to secure the scene while Larsen went to procure a warrant. The record contains no evidence of what Larsen would have had to do to procure a warrant at the time of the search. 

With regard to safety concerns, the stipulated facts do not establish that Trooper Larsen felt he or anyone else was in danger as a result of Tibbles's actions. Tibbles was not stopped on suspicion of impaired driving, but rather for a defective taillight. Tibbles was alone, was compliant with the trooper's requests, and moreover, was released rather than arrested and allowed to drive away even after Trooper Larsen searched the car and seized the marijuana and drug paraphernalia. It is the State's burden to establish that one of the exceptions to the warrant requirement applies. In the case of hot pursuit or similar situations presenting a risk to officer safety, the State's burden can be met by establishing the immediacy of the risk of flight or risk of harm. The facts, as presented here, do not implicate these concerns, nor has the State attempted to show why it was impracticable for Trooper Larsen to obtain a warrant before conducting his search. To find exigent circumstances based on these bare facts would set the stage for the exigent circumstances exception to swallow the general warrant requirement. It would give the erroneous impression that an exigency may be based on little more than a late-night stop for defective equipment, an officer working alone, and circumstances indicating possible drug possession. This very likely describes any number of encounters between law enforcement and private citizens that occur everyday.

"Any number of encounters between law enforcement and private citizens that occur everyday."

New Jersey has a state constitution

Hat tip to FourthAmendment.com. In State v. Minitee, A-5002-06T4 (N.J. App. August 16, 2010), the New Jersey Superior Court, Appellate Division held that the New Jersey Constitution provides greater protection than the Fourth Amendment with regard to the automobile exception:

We harmonize the seemingly inconsistent holdings in Martin and Pena-Flores by finding that the exigent circumstances that existed at the scene only permitted the police to seize the vehicle and transport it to a secure location. Thereafter, the police were constitutionally required to obtain a warrant before searching the vehicle. This approach distinguishes between, and guards against, unreasonable searches and unreasonable seizures, the two fundamental protections embodied in Article I, Paragraph 7 of our State Constitution.

We consider the United States Supreme Court's decision in Chambers v. Maroney, 399 U.S. 42, 51-52, (1970), permitting warrantless searches of vehicles impounded by the police, to constitute binding authority only under the Fourth Amendment of the United States Constitution. Under Article I, Paragraph 7 of our State's Constitution, as interpreted by the Court in Pena-Flores, however, the police must, where practicable, obtain a warrant before searching a vehicle that has been seized and impounded under the exigent circumstances exception to the warrant requirement.

Article I, Paragraph 7 of the New Jersey Constitution states the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

The Kansas Constitution Bill of Rights, Section 15 states the following:

The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.

Chief Judge Rulon to retire

A court press release announced that Chief Judge Gary Rulon will retire at the end of his term this upcoming January after 30 years of service on the bench.

Amen and amen!

Chief Judge Kozinzki from the Ninth Circuit, dissenting from denial of a motion for en banc hearing in United States v. Pineda-Moreno, No. 08-30385 (9th Cir. 2010), nicely articulates the gap between a lot of judges in our country and the real world:

The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.

The very rich will still be able to protect their privacy with the aid of electric gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling. Open driveways, unenclosed porches, basement doors left unlocked, back doors left ajar, yard gates left unlatched, garage doors that don’t quite close, ladders propped up under an open window will all be considered invitations for police to sneak in on the theory that a neighborhood child might, in which case, the homeowner “would have no grounds to complain.”

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

I've recently had this same type of thought with regard to a lot of the recent federal and state jurisprudence on the right to counsel, the right to silence, and the right to protection under the Fourth Amendment. Courts rationalize that, if you aren't smart enough or educated enough or rich enough to enforce your own rights, too bad. But the Rule of Law (including the Constitution), should protect everybody, not just the rich (who can afford and understand the importance of a lawyer) and the educated. 

"Micturate on the azaleas?" Ah, thank you Chief Judge Alex "Vocabulary Word of the Day" Kozinzki. And hat tip to FourthAmendment.com.

Surgical application of harmless error

Rick Kittel and KU Defender Project student Drew Cummings won in State v. Brown, No. 101,819 (Kan. App. Aug. 6, 2010), obtaining a partial reversal in a Wyandotte County aggravated burglary prosecution. The substance of the issue involved a Boggs (blogged about here) issue:

In Boggs, the Kansas Supreme Court stated that the crucial distinction in admitting other crimes evidence under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime but whether the defendant has claimed that his or her actions were innocent. When the defendant's acts are susceptible to two interpretations—one innocent and one criminal—then the intent with which the actions were committed becomes the critical element in determining their character. However, when a defendant does not assert that his or her actions were innocent but rather presents some other defense, there is no reason to admit evidence of other crimes or civil wrongs to prove intent. Here, Brown did not assert an innocent explanation for being inside the Ford residence on January 12, 2006. To the contrary, Brown testified at trial and generally denied entering the residence for any reason. Thus, although Brown's intent to commit a theft inside the residence was a material fact that the State was required to prove beyond a reasonable doubt, Brown did not dispute this particular material fact by asserting an innocent explanation for his actions as required in Boggs. Brown's not guilty plea was insufficient to place his intent in dispute at trial for purposes of admitting K.S.A. 60-455 evidence.

The State acknowledges that generally intent is only in dispute when the defendant asserts an innocent explanation for his or her actions. Nevertheless, the State argues in its brief that "this Court should broaden the requirements for admissibility of K.S.A. 60-455 evidence relevant to intent in burglary and/or aggravated burglary cases, even if prior jurisprudence does not currently demand the same." We decline the State's request to broaden the requirements for admissibility of evidence under K.S.A. 60-455. Intent becomes a disputed issue only when the defendant asserts an innocent explanation for his or her actions. Because Brown did not offer an innocent explanation for his actions, we conclude the district court erred by admitting evidence of his prior attempted burglary conviction in order to prove intent.

What was interesting to the appellate procedure geek in me was the precise application of the harmless error rule to this case. The COA reviewed the evidence and held that the error was reversible as to count one (aggravated burglary). But, because the evidence of a second incident was "substantially more compelling than the evidence supporting Count I," the COA held the error harmless as to counts two and three (burglary and theft).

I think this is the right approach with regard to harmless error. We tell juries all the time that each count is separate and errors may have different effects on different counts. This also effectively shows why facts do matter in appellate cases (at least in the outcome, which is what matters).

[Update: the state did not file a PR and the mandate issued on September 9, 2010.]

Chief Justice Davis passes

We had just blogged about Chief Justice Davis' retirement, when we learned the sad news that he passed away this week. Here is a Topeka Capital-Journal article announcing the services for Chief Justice Davis.

Chief Justice Davis retires

A court press release announced that KSC Chief Justice Robert Davis has announced his retirement. The release reports that Chief Justice Davis has been battling health issues for some time now. 

Per the Kansas Constitution, Justice Lawton Nuss becomes Chief Justice immediately. The Supreme Court Nominating Commission will meet and forward names to Governor Parkinson in the next few months. We will update on this story.

Even more great work by defenders on appeal

We try to update on most favorable appellate cases, but we often don't get notice of unpublished affirmances in state's appeals, because the ADO is usually not counsel of record. Here is a search of the first five months of 2010, which turned up a lot of great trial/appellate work by defenders. We posted on them (retroactively dated to around when the decision came out), but we thought we would also just list and link them here:

State v. Hodge, No. 102,542 (Feb. 12, 2010); Kenneth B. Miller & Kevin P. Shepherd; affirming Judge Schmidt's suppression order based on misleading statements in affidavit

State v. Jordan, No. 102,846 (March 5, 2010); David N. Harger; affirming Judge Dickinson's suppression order based on illegal search of a dorm room

State v. Shepard, No. 101,106 (March 12, 2010); Tony A. Potter; affirming Judge Toepfer's dismissal of DUI prosecution on constitutional speedy trial grounds

State v. Wheeler, No. 102,638 (March 26, 2010); Brenda M. Jordan; affirming Judge Ireland's suppression order based on improper search of trash

State v. Martin, Case No. 102,639 (March 26, 2010); Troy V. Huser; affirming Judge Ireland's suppression order based on improper search of trash

State v. Young, No. 102,497 (April 8, 2010); Kristopher M. Kellim; affirming Judge Hornbaker's suppression order based on an illegal search of a car trunk

Be sure to let us know if there are others that should be mentioned!

Homicide acquittal in Hutch

Here is a Hutch News article reporting that Greg Bell won an acquittal in State v. Beard, ending a Reno County first-degree murder prosecution.

Indiana has a state constitution, part II

In Lacey v. State, No. 02A05-0910-CR-562 (Ind. App. July 27, 2010), the Indiana Court of Appeals relying on its state constitution holds that an unjustified violation of the "knock and announce" requirement related to execution of a search warrant requires suppression, notwithstanding the SCOTUS' differing view under the Fourth Amendment:

Although police officers at times confront emerging exigent circumstances, to which an emergency response is appropriate under the Indiana Constitution, the instant situation did not involve exigencies arising when there was no opportunity to seek judicial sanction for a "no-knock" entry. As Sergeant Strausborger explained, "no-knock" entries into a residence increase the potential for violence against police officers due to misapprehension of circumstances by the occupants. In light of our Indiana Supreme Court‟s pronouncement in Holder, acknowledging that intrusions based upon security concerns will be tolerated only "so long as they are reasonably aimed toward those concerns," we believe that such entries should remain rare and, where practicable, subject to review by a detached and neutral judicial officer.

Here, we are not concerned with a decision to disregard the "knock and announce" requirement predicated upon emerging exigent circumstances. Rather, we are concerned with an emergency response team policy that authorizes a unilateral decision to enter into a home without knocking when there has been no independent determination regarding the circumstances. As such, we find that suppression is the appropriate remedy for dealing with this Indiana constitutional violation.

Hat tip to FourthAmendment.com.

Insufficient alternative means results in reversal in kidnapping case

Former ADO Jocilyn Oyler won in State v. George, No. 97,679 (Kan. App. June 18, 2010), obtaining a reversal in a Leavenworth County rape/kidnapping prosecution. The jury was presented with the alleged alternative means that Mr. George confined a person with intent to "facilitate flight or the commission of any crime." The state conceded that there was no evidence that Mr. George intended to facilitate flight, but that overwhelming evidence supported the alternative means of facilitating commission of a crime.

The COA originally affirmed, but the KSC granted review and remanded for reconsideration in light of State v. Wright, 290 Kan. ___, 224 P.3d 1159 (2010). Under Wright, the COA reversed:

However, in light of the Court's recent decsion in Wright, we now reverse George's conviction of kidnapping. The jury here was instructed that it could find the defendant kidnapped R.L. if he took or confined her by force, threat, or deception with the intent to hold her to "facilitate flight or the commission of any crime." The State conceded that it presented no evidence that George acted to facilitate flight, but suggested the kidnapping verdict could nevertheless be affirmed based upon overwhelming evidence that George acted with the intent to facilitate the commission of rape.

In light of the court's reversal of Dixon, we conclude the State presented insufficient evidence of facilitating flight, and therefore his kidnapping conviction must be reversed and the case remanded for resentencing.

This Wright issue is coming up in several contexts. An example is that the state often charges theft with alternative means (exerting or obtaining property). But "exerting" (i.e. embezzlement) and "obtaining" (i.e. stranger taking property) are really almost mutually exclusive. So in any case where the jury instruction presents theft as "exerting or obtaining" property, there is probably an alternative means argument. So look carefully at the instructions. Prosecutors often use a shotgun approach to charging documents. But if evidence of one or more of the alternative means is insufficient, it should result in reversal on appeal.

It's a nice example of a "zone of victory." Although Wright itself was not a reversal, the law propounded in Wright will probably result in a lot of reversals.

Gun charges dropped

Here is a Topeka Capital-Journal article reporting that Carl "Second Amendment" Folsom won dismissal of municipal charges of transporting a firearm in a vehicle in City of Topeka v. Roberts . As the article relates, the incident started because of investigation of Mr. Roberts carrying an unconcealed firearm in Westridge Mall. Here is the former article reporting that the municipal judge acquitted Mr. Roberts of any crime concerning carrying the firearm, but convicted of transporting. The city prosecutor dismissed that charge on appeal from the municipal conviction.

Oregon has a state constitution, part II

I recently posted on a Oregon state constitutional case, but this recent Oregon Supreme Court case has some great state constitutional law discussion, so I thought I would note it, too. In State v. Vondehn, No. SC S056371 (Or. July 1, 2010), the Oregon Supreme Court held that under its constitution, physical fruits of Miranda violations must be suppressed (rejecting the plurality SCOTUS decision in Patane):

The state contends, however, that we should reach a different conclusion when the violation of Article I, section 12, is a "mere failure to provide Miranda warnings" relying on the reasons persuasive to the plurality in Patane: that such a failure does not violate a suspect's constitutional rights and that, given the important value of reliable physical evidence, the Miranda rule should not be extended to exclude it. It is immediately obvious that the premise of the state's argument does not hold here. It is the Oregon Constitution that requires Miranda warnings and it is the Oregon Constitution that is violated when those warnings are not given. When the police violate Article I, section 12, whether that violation consists of "actual coercion" or the failure to give the warnings necessary to a knowing and voluntary waiver, the state is precluded from using evidence derived from that violation to obtain a criminal conviction. It follows ineluctably that, when the police violate Article I, section 12, by failing to give required Miranda warnings, the state is precluded from using physical evidence that is derived from that constitutional violation to prosecute a defendant.

Oregon is a long-standing leader in the area of state constitutional law. Its courts have a steady history of giving actual force to its own supreme law.

Article I, section 12 of the Oregon Constitution says: "No person shall * * * be compelled in any criminal prosecution to testify against himself."

Section 10 of the Kansas Constitution Bill of Rights says: "In all prosecutions, * * * [n]o person shall be a witness against himself."

New trial in Lyon County Jessica's Law case

Carl Folsom won in State v. Magallanez, No. 99,694 (Kan. July 16, 2010), obtaining a new trial in three consolidated Lyon County sex offense prosecutions, including rape, aggravated indecent liberties, and aggravated criminal sodomy. Carl filed a brief with fifteen issues; the KSC held that five of the issues cumulatively required a new trial. The KSC summarized it findings:

This court has recognized often that the federal and state constitutions do not guarantee a perfect trial, but they do guarantee a fair one, even when the defendant stands accused of unspeakably horrendous crimes. This case is one of the rare ones in which cumulative error dictates reversal of the defendant's convictions and remand for further proceedings, because it is our view Magallanez did not get a fair trial and the evidence was not so overwhelming as to overcome the error. The five errors that, viewed collectively, substantially prejudiced Magallanez and denied him a fair trial were: prosecutorial misconduct, the overbreadth of the trial court's shotgun limiting instruction under K.S.A. 60-455, the redaction of J.P.'s letter to Magallanez, lack of jurisdiction to convict on aggravated indecent liberties as to S.S., and the inclusion of the "burden on both sides" language in the Allen-type instruction.

We have discussed already the potential danger when prosecutors embellish the burden of proof required in criminal cases, and the prosecutor committed this error by diluting the reasonable doubt standard in this case. Our prior case law also recognizes a defendant is entitled to have guilt determined solely based on the evidence introduced at trial, not other circumstances. This right was impaired by the misleading portion of the Allen instruction indicating that another trial would burden both sides. This trial was further tainted by evidentiary and argument issues; the prosecutor's improper comment that "you trust children until you have reason not to" exacerbated the district judge's error in barring admission of the very evidence proving that one of the victims had lied before about her sexual activity. Furthermore, the district judge failed to properly instruct the jury on limiting use of the evidence of Magallanez' prior crimes. Each error, viewed independently, would not have been enough to require reversal, but we cannot hold Magallanez received a fair trial when the errors are aggregated.

There is a lot of good language in this decision on each of the errors found by the KSC. We were a little skeptical that improperly restricting the defense presentation, by itself, would be harmless error. But it's under the bridge after the cumulative error finding.

Here is coverage from the Emporia Gazette.